In March, I wrote approvingly of Justice Stinson’s discovery analysis in Brown v. Wahl. The Court of Appeal recently upheld the decision.
The Court of Appeal’s decision is noteworthy for two reasons. First, the Court rejected the appellant’s argument that Lawless v. Anderson created a four-part test for discoverability in respect of professional malpractice claims:
 Lawless was a medical malpractice case. In describing when the plaintiff knew all the material facts required to discover her claim against the defendant, this court stated, at para. 30:
It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome. She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.
 The appellant submits that, in the above-quoted passage, the Lawless court established a four-part test for determining when a prospective plaintiff may be said to have known the material facts necessary for bringing a negligence claim against a medical practitioner in a cosmetic surgery action. This test establishes, according to the appellant, that such a claim is discovered by the prospective plaintiff only when he or she knows: i) of the harm alleged; ii) why it was wrong; iii) what action is required to correct the wrong; and iv) who was responsible.
 Based on this suggested four-part test, the appellant argues that the motion judge erred by failing to properly or adequately analyze the evidence and apply it to the questions of when the appellant was positioned to determine “why” her dental treatment by the respondents was “wrong” and “what would have to be done to correct it”.
 We reject this argument.
 First, Lawless does not create a new four-part test for discoverability in respect of professional malpractice claims. To the contrary, Lawless confirms, at para. 30, that the test for discoverability is when a prospective plaintiff “had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent”. The Lawlesscourt’s reference, immediately preceding this comment, to the four factors relied on by the appellant reflects the application of this test to the evidence before the court in Lawless.
This was the correct response to a dubious argument. Whatever the Ontario limitations regime may need, it’s not new discovery tests for specific claims.
Second, the Court followed its description of discoverability in Lawless. This is problematic because it’s a description of the common law discoverability test, rather than the section 5 test in the Limitations Act. I describe the mischief resulting from this confusion here.