{"id":457,"date":"2016-07-28T10:39:39","date_gmt":"2016-07-28T14:39:39","guid":{"rendered":"http:\/\/limitations.ca\/?p=457"},"modified":"2016-07-28T10:41:17","modified_gmt":"2016-07-28T14:41:17","slug":"ontario-the-court-of-appeal-getting-discovery-right","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=457","title":{"rendered":"Ontario: The Court of Appeal getting discovery right"},"content":{"rendered":"

In upholding the decision\u00a0in Chelli-Greco v. Rizk<\/em><\/a>, which we wrote about here<\/a>, the Court of Appeal described when discovery of a claim occurs:<\/p>\n

\n

[<\/a>3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Under s. 5 (1)(a) of the Act, a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an appropriate means to seek to remedy the claim. The date is determined on a fact-based analysis.<\/p>\n<\/blockquote>\n

This statement of law is deceptively significant.<\/p>\n

Since its decision in Lawless<\/em><\/a>, the Court of Appeal has often described discovery in terms of the old common law test\u2014discovery occurs when the plaintiff reasonably ought to have knowledge of the material facts of her cause of action. \u00a0This is problematic because discovery under section 5 of the Limitations Act <\/a>occurs not just when the claimant has knowledge of the material facts of the cause of action, but, pursuant to section 5(1)(a)(iv), when she knows that a proceeding is an appropriate remedy for her claim.\u00a0 Using the common law test to determine discovery necessarily removes the section 5(1)(a)(iv) criterion from the analysis. \u00a0This is problematic, and I’ve written about it\u00a0before<\/a>.<\/p>\n

The Court of Appeal’s explicit acknowledgement that discovery requires satisfaction of section 5(1)(a)(iv) is a departure from its jurisprudence that follows Lawless<\/em><\/a>.\u00a0 This is the decision you should cite when describing\u00a0discovery under the Limitations Act<\/a>.<\/p>\n

This is the Court’s analysis:<\/p>\n

\n

[<\/a>4]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The issue before the motion judge was when did the respondent know that a proceeding would be an appropriate means to seek a remedy. The motion judge accepted the respondent\u2019s evidence that her decision to continue treatment with the appellant beyond September 21, 2011 was based on the appellant\u2019s advice to her that \u201cher failed bridge was not his fault and he would endeavour to repair and remediate the problem.\u201d\u00a0 . Given this finding, we see no error in the motion judge\u2019s conclusion that the respondent\u2019s action was not discovered until after the treatment and the dentist-patient relationship had ended and that her action was not statute barred as a result. See Brown v. Baum<\/em>, 2016 ONCA 325<\/span>(CanLII)<\/a>, at para. 18<\/span>.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In upholding the decision\u00a0in Chelli-Greco v. Rizk, which we wrote about here, the Court of Appeal described when discovery of a claim occurs: [3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Under s. 5 (1)(a) of the Act, a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the … Continue reading Ontario: The Court of Appeal getting discovery right<\/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":[87,144,9,251,23,45,43],"class_list":["post-457","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discoverability","tag-discoverability-principles","tag-discovery","tag-good-law-phew","tag-ontario-act-s-5","tag-ontario-act-s-51aiv","tag-ontario-court-of-appeal"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/457","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=457"}],"version-history":[{"count":4,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/457\/revisions"}],"predecessor-version":[{"id":464,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/457\/revisions\/464"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=457"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=457"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=457"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}