{"id":1171,"date":"2021-12-31T11:10:07","date_gmt":"2021-12-31T15:10:07","guid":{"rendered":"http:\/\/limitations.ca\/?p=1171"},"modified":"2021-12-31T11:12:12","modified_gmt":"2021-12-31T15:12:12","slug":"ontario-common-law-discovery-and-s-4-of-the-rpla","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1171","title":{"rendered":"Ontario: common law discovery and s. 4 of the RPLA"},"content":{"rendered":"

Khan v. Taji<\/em><\/a>\u00a0confirms that common law discovery applies to the limitation period in s. 4 of the\u00a0Real Property Limitations Act.\u00a0 It provides a good overview of the issue:<\/p>\n

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[<\/a>72]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The defendants argue that the discoverability principle in\u00a0s. 5<\/span>\u00a0of the\u00a0Limitations Act, 2002<\/span><\/i>, has no application to\u00a0s. 4<\/a>\u00a0of the\u00a0RPLA<\/a>. They argue that the discoverability principle is a statutory construct, and does not apply unless expressly stated in the statute. In the absence of an express statement, the right to bring an action for the recovery of land first accrues the moment the trust is established, not on the date that a breach of trust is discovered.<\/p>\n

[<\/a>73]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There is no question that the application of the discoverability rule is a question of statutory interpretation, but the analysis is not as simple as that proposed by the defendants.\u00a0 In\u00a0Pexeiro v. Haberman<\/i>,\u00a01997 CanLII 325<\/a>\u00a0(SCC), [1997] 3 S.C.R. 549 (S.C.C.), the Supreme Court of Canada dealt with the question of whether the discoverability rule applied to all limitation provisions or whether its application depended upon the actual wording of the statutory limitation. Major J. adopted the following statement from the Manitoba Court of Appeal in\u00a0Fehr v. Jacob<\/i>\u00a0, at para. 37:<\/p>\n

[T]he judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed.\u00a0When time runs from \u201cthe accrual of the cause of action\u201d or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies.<\/u>\u00a0But, when time runs from an event which clearly occurs without regard to the injured party\u2019s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed. (Emphasis added)<\/p>\n

[<\/a>74]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0McCracken v. Kossar<\/i>,\u00a02007 CanLII 4875<\/a>\u00a0(ON SC), Shaw J. concluded that the language of\u00a0s. 4(1)<\/a>\u00a0of the\u00a0RPLA<\/a>\u00a0did nor preclude the application of the\u00a0<\/a>discoverability\u00a0rule, at para. 54:<\/p>\n

Ms. Kossar submits that the discoverability principle does not apply to\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Real Property Limitations Act<\/a><\/i>. She quotes in support of her submission the words in\u00a0s. 4(1)<\/a>, \u201c\u2026 when the right to bring such action first accrued.\u201d However,\u00a0Fehr v. Jacob<\/i>, cited with approval by Major J. in\u00a0Pexeiro<\/i>, refers to very similar language as leading to the possible application of the discoverability rule.<\/p>\n

[<\/a>75]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In any event, I note that\u00a0s. 28<\/a>\u00a0of the\u00a0RPLA<\/a>\u00a0does expressly provide for a discoverability rule in cases of concealed fraud.\u00a0Section 28<\/a>\u00a0provides:<\/p>\n

28.\u00a0 In every case of a concealed fraud, the right of a person to bring an action for the recovery of any land or rent of which the person or any person through whom that person claims may have been deprived by the fraud shall be deemed to have first accrued at and not before\u00a0<\/a>the time at which the fraud was or with reasonable diligence might have been first known or discovered.<\/p>\n<\/blockquote>\n<\/div>\n

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[<\/a>76]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In the present case, the plaintiff has pleaded fraud with respect to the transfers of both properties.<\/div>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Khan v. Taji\u00a0confirms that common law discovery applies to the limitation period in s. 4 of the\u00a0Real Property Limitations Act.\u00a0 It provides a good overview of the issue: [72]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The defendants argue that the discoverability principle in\u00a0s. 5\u00a0of the\u00a0Limitations Act, 2002, has no application to\u00a0s. 4\u00a0of the\u00a0RPLA. They argue that the discoverability principle … Continue reading Ontario: common law discovery and s. 4 of the RPLA<\/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":[625,392,265,345],"class_list":["post-1171","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-common-law-discovery","tag-common-law-principles","tag-ontario-real-property-limitations-act","tag-ontario-real-property-limitations-act-s-4"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1171","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1171"}],"version-history":[{"count":3,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1171\/revisions"}],"predecessor-version":[{"id":1176,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1171\/revisions\/1176"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1171"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1171"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1171"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}