{"id":419,"date":"2016-04-19T11:10:57","date_gmt":"2016-04-19T15:10:57","guid":{"rendered":"http:\/\/limitations.ca\/?p=419"},"modified":"2016-04-19T11:14:59","modified_gmt":"2016-04-19T15:14:59","slug":"ontario-modified-objective-discovery","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=419","title":{"rendered":"Ontario: modified objective discovery"},"content":{"rendered":"

Justice Parfett’s decision in Fernandes v. Goveas<\/em><\/a> is a textbook example of applying the modified objective<\/a> test in a discovery analysis.<\/p>\n

Section 5(1)(b)<\/a> of the Limitations Act\u00a0contains the test.\u00a0 This provision asks when a reasonable person (the objective component) with the abilities and in the circumstances of the claimant (the modifying subjective component) first ought to have known of the discovery criteria in section 5(1)(a)<\/a>.<\/p>\n

The facts in Fernandes<\/em> were unusually sordid.\u00a0 The plaintiff sued her sister for unpaid wages and damages for wrongful dismissal, leading Justice Parfett to observe “This case is a lesson in why family should not always be treated \u2018like family\u2019.\u00a0 The Plaintiff in this case was misled, overworked and underpaid by her family.”<\/p>\n

This is how Justice Parfett applied the test:<\/p>\n

[16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0A reasonable person is defined at s. 5(1)(b) of the\u00a0Limitations Act<\/em>\u00a0as someone \u2018with the abilities and in the circumstances of the person with the claim\u2019.\u00a0 In this case, that means someone who<\/p>\n