{"id":153,"date":"2015-02-02T10:39:31","date_gmt":"2015-02-02T14:39:31","guid":{"rendered":"http:\/\/limitations.ca\/?p=153"},"modified":"2015-02-02T10:41:38","modified_gmt":"2015-02-02T14:41:38","slug":"153","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=153","title":{"rendered":"Ontario: Justice Perell on the operation of the section 5 discovery provisions"},"content":{"rendered":"

In Zhu v. Matadar<\/em><\/a>, Justice Perell provides a succinct and helpful description of how sections 5(1)<\/a> and (2)<\/a> of the Limitations Act, 2002 <\/em><\/a>operate:<\/p>\n

[6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Not surprisingly, in bringing a summary judgment motion, a defendant advancing a limitation period defence will rely on the statutory presumption in s. 5 (2) of the Limitations Act, 2002 <\/em>that unless the contrary is proven, the claimant is presumed to have known the elements for his or her claim on the day the events of the claim occurred.<\/p>\n

[7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Not surprisingly, on the summary judgment motion, a plaintiff will attempt to rebut the statutory presumption by tendering evidence that he or she both subjectively and objectively did not discover the claim until sometime after the day the events of the claim occurred.<\/p>\n

[8]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 In order to rebut the presumption, the claimant must meet both a subjective and an objective standard because s. 5 (1) of the Act <\/em>defines discovery by relation to \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<\/p>\n

[9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Practically speaking, applying s. 5 (2) of the Limitations Act, 2002<\/em> to any case and focussing on the commencement of the running of the limitation period means that for the claimant to prove that his or her claim is timely, the claimant must prove that he or she subjectively and objectively did not<\/span> discover the claim in the period between the events giving rise to the claim and a date that is two years before an action was commenced; otherwise the two year period will begin at the date of the event and end at the second anniversary of the event.<\/p><\/blockquote>\n

Nothing in this description is novel, and one might assume it’s well familiar to lawyers who have practiced under the Limitations Act, 2002<\/em> for the past ten years. Nevertheless, I often encounter misunderstandings about the interaction of section of 5(1) and (2), from both bench and bar.<\/p>\n

This is particularly so regarding Justice Perell\u2019s reminder that the practical implication of section 5(2) is to require a plaintiff to meet the \u201cmodified objective\u201d test in section 5(1)(b) (see Ridel v. Cassin<\/em><\/a> at para. 4), rather than merely the subjective test in section 5(1)(a).\u00a0 There’s no gain in establishing when the plaintiff subjectively discovered the claim when the defendant will establish that the plaintiff ought to have discovered it earlier.<\/p>\n","protected":false},"excerpt":{"rendered":"

In Zhu v. Matadar, Justice Perell provides a succinct and helpful description of how sections 5(1) and (2) of the Limitations Act, 2002 operate: [6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Not surprisingly, in bringing a summary judgment motion, a defendant advancing a limitation period defence will rely on the statutory presumption in s. 5 (2) of … Continue reading Ontario: Justice Perell on the operation of the section 5 discovery provisions<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[9,24,23],"class_list":["post-153","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discovery","tag-ontario-act","tag-ontario-act-s-5"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/153","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=153"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/153\/revisions"}],"predecessor-version":[{"id":155,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/153\/revisions\/155"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=153"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=153"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=153"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}