{"id":1002,"date":"2020-04-06T21:34:28","date_gmt":"2020-04-07T01:34:28","guid":{"rendered":"http:\/\/limitations.ca\/?p=1002"},"modified":"2020-04-06T21:34:28","modified_gmt":"2020-04-07T01:34:28","slug":"ontario-some-pedantry-in-response-to-the-court-of-appeal-decision-in-rumsam","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1002","title":{"rendered":"Ontario: some pedantry in response to the Court of Appeal decision in Rumsam"},"content":{"rendered":"

The Court of Appeal\u2019s decision in Rumsam v. Pakes <\/em><\/a>overturned the motion judge\u2019s order granting the plaintiff leave to add a doctor as a defendant to the proceeding.\u00a0 The doctor had opposed the motion on the basis of an expired limitation period.\u00a0 The motion judge found the proceeding timely.<\/p>\n

The Court\u2019s conclusion seems right to me, but it contains some statements of law that are problematic and require comment.<\/p>\n

First, there is this description of s. 5(1)(b)<\/a>:<\/p>\n

\n

[<\/a>30]\u00a0\u00a0 \u00a0\u00a0\u00a0As of August 29, 2013, Ms. Rumsam was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(b) [sic] of the\u00a0Limitations Act<\/em>\u00a0that a \u201ccause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered,\u00a0or ought to have been discovered<\/span>, by the plaintiff by the exercise of reasonable diligence\u201d (emphasis added):\u00a0Lawless<\/em>, at para.\u00a022<\/a>.<\/p>\n<\/blockquote>\n

This is not an accurate description of s. 5(1)(b).\u00a0 That section provides that discovery occurs \u201cthe day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)\u201d.<\/div>\n

What paragraph 30 describes is common law discovery.\u00a0 Discovery as codified in s. 5(1)(b) differs from common law discovery in two material ways.\u00a0 First, the knowledge required by s. 5(1)(b) isn\u2019t the material facts of a cause of action, but the four discovery matters in s. 5(1)(a); while these may accord generally with some causes of action, they don\u2019t accord with many others (like breach of contract, which doesn\u2019t have \u201cinjury, loss or damage\u201d as a material fact.\u00a0 Second, the knowledge is modified-objective, not purely objective; it\u2019s the knowledge of a reasonable person with the abilities and in the circumstances of the plaintiff.<\/p>\n

It\u2019s unfortunate that the Court of Appeal continues to treat common law discovery as the same as statutory discovery.\u00a0 Relatively recent Court of Appeal jurisprudence distinguishing the \u201cclaim\u201d form the \u201ccause of action\u201d has been promising (see Apotex<\/em><\/a> and Gillham\u00a0Bay<\/em><\/a>), but apparently without the impact one might have hoped for.<\/p>\n

Then there is this summary of conclusions:<\/p>\n

[33] In conclusion:<\/p>\n

1. A claim must be brought within two years of a claim being \u201cdiscovered\u201d.<\/p>\n

2. A claim is discovered when the claimant first knew the injury occurred, that it was caused by an act or omission, that the act or omission was caused by the person against whom the claim is made, and that there was loss.<\/p>\n

3. The injury was sustained on July 11, 2007, so normally the limitation period would have expired on July 11, 2009.<\/p>\n

4. Given that Ms. Rumsam did not turn 18 until June 4, 2010, the presumptive limitation period did not begin to run until that date.<\/p>\n

5. The limitation period would have expired on June 4, 2012, but for the discoverability principle.<\/p>\n

6. By August 29, 2013 at the latest, Ms. Rumsam knew all of the material facts except the name of the \u201csecond clinic physician\u201d in question.<\/p>\n

7. By August 29, 2013 at the latest, she was required to exercise reasonable diligence to get the name within the two-year period as she knew she likely had a claim against this person for her injuries, and August 29, 2013 was \u201cthe day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to\u201d as set out in s. 5(1)(b) of the Limitations Act.<\/p>\n

8. The onus to prove reasonable diligence is on Ms. Rumsam.<\/p>\n

9. She failed to exercise reasonable diligence as no steps were taken for at least a year.<\/p>\n

10. As such, as the court held in Safai, there is no basis to extend the limitation period for more than two years as, from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a position to ascertain the name by reasonable diligence.<\/p><\/blockquote>\n

Let\u2019s go through the issues.<\/p>\n

    \n
  1. A claim must be brought before the expiry of the limitation period, not within two years of discovery. Discovery causes the limitation period to commence, but it\u2019s not determinative of its expiry.\u00a0 There are multiple circumstances in which the limitation period will stop running\u2014for a example a tolling agreement\u2014so that it will expire more than two years from its commencement.<\/li>\n
  2. Discovery does not require knowledge that an injury has occurred and that there was a loss, because for limitations purposes in injury and loss are effectively the same thing. There Limitations Act\u00a0<\/em>always refers to\u00a0\u201cinjury, loss or damage\u201d; “injury” never has a separate function from “loss” (which prompts the question why the act uses this language–I suspect it was intended by the drafters to signal that the act applies to all causes of action regardless of whether they require damage to be actionable).\u00a0 In any event, all that discovery requires with respect to damage is knowledge that \u201cinjury, loss or damage\u201d has occurred, so knowledge of injury or loss alone will suffice.<\/li>\n
  3. There is no presumptive limitation period. There is basic limitation period in s. 4 that commences presumptively on the date of the act or omission that gives rise to the claim pursuant to s. 5(2). This is because of the \u201cdiscoverability principle\u201d, not despite it.\u00a0 Section 5(2) creates a presumption that discovery occurs on the date of the act or omission, which the plaintiff can rebut.\u00a0 The s. 5 discovery provisions always determine the commencement of the basic limitation period.<\/li>\n<\/ol>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

    The Court of Appeal\u2019s decision in Rumsam v. Pakes overturned the motion judge\u2019s order granting the plaintiff leave to add a doctor as a defendant to the proceeding.\u00a0 The doctor had opposed the motion on the basis of an expired limitation period.\u00a0 The motion judge found the proceeding timely. The Court\u2019s conclusion seems right to … Continue reading Ontario: some pedantry in response to the Court of Appeal decision in Rumsam<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[124,392,9,580,23,219,223,222],"class_list":["post-1002","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-party","tag-common-law-principles","tag-discovery","tag-injury-loss-or-damage","tag-ontario-act-s-5","tag-ontario-act-s-51","tag-ontario-act-s-51a","tag-ontario-act-s-51b"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1002","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1002"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1002\/revisions"}],"predecessor-version":[{"id":1003,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1002\/revisions\/1003"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1002"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1002"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1002"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}