{"id":902,"date":"2019-04-12T20:10:32","date_gmt":"2019-04-13T00:10:32","guid":{"rendered":"http:\/\/limitations.ca\/?p=902"},"modified":"2019-04-12T20:11:42","modified_gmt":"2019-04-13T00:11:42","slug":"reconsidering-mistakes-of-law-and-discoverability","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=902","title":{"rendered":"Reconsidering mistakes of law and discoverability"},"content":{"rendered":"

Samuel Beswick<\/a>, a Harvard legal scholar, studies the impact a mistake of law has on the discovery of a claim.\u00a0 In\u00a0Under the Limit<\/em>‘s first guest post, he makes a compelling argument for reconsidering how Canadian limitations law might alter its approach to mistakes of law in the discovery analysis.<\/p>\n

Mistake of law as a basis for extending the limitation period?<\/strong><\/p>\n

Common law countries have long determined that discoverability governs limitation on actions \u201cgrounded on\u201d mistake (as the former Alberta statute<\/a> put it) or that seek \u201crelief from the consequences of\u201d mistake (as the English Limitation Act<\/a> provides). Back when the law of unjust enrichment was thought to allow restitution only for mistakes of fact<\/em>, discoverability provisions had not much to do with mistakes of law. Now that the mistake-of-law bar has been abandoned<\/a>, it is apt to ask: when can a mistake of law be discovered?<\/p>\n

In England, this problem has driven multi-billion-pound-sterling unjust enrichment litigation, spurring private law scholars and confounding courts. The answer that the English courts have given, succinctly put in FII Test Claimants v HMRC<\/em><\/a>, is that:<\/p>\n

[372] \u2026 [I]n the case of a point of law which is being actively disputed in current litigation the true position is only discoverable \u2026 when the point has been authoritatively resolved by a final court.<\/p><\/blockquote>\n

I have recently sought to show<\/a> that England\u2019s answer to the discoverability of mistakes of law is arbitrary, jurisprudentially strained, internally inconsistent, and effects bad policy.<\/p>\n

What\u2019s remarkable (albeit it hasn\u2019t to date been remarked on) is that this doctrine is also totally contradictory to Canadian precedent on this issue. The position in Canada, summarized in Hill v Alberta<\/em><\/a>, is that:<\/p>\n

[9] \u2026 Discoverability refers to facts, not law. Error or ignorance of the law, or uncertainty of the law, does not postpone any limitation period.<\/p><\/blockquote>\n

In Canada, time runs on mistake-of-law claims whether or not a claimant has discovered their mistake. This causes other problems, which I have endeavoured to draw out in a recent paper<\/a>.<\/p>\n

There is, however, a middle ground between England\u2019s \u201cauthoritative judgment\u201d understanding of limitation on mistakes of law and Canada\u2019s \u201cexception\u201d to the discoverability principle, a full account of which will be appearing in the LQR<\/a>. The short answer, though, is this: mistakes as to the law should be considered discoverable once a claimant is in a position to plead them in a statement of claim. Discoverability is not about finding out one\u2019s legal position from a court. It is about having adequate time to be able to plead one\u2019s case to a court.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Samuel Beswick, a Harvard legal scholar, studies the impact a mistake of law has on the discovery of a claim.\u00a0 In\u00a0Under the Limit‘s first guest post, he makes a compelling argument for reconsidering how Canadian limitations law might alter its approach to mistakes of law in the discovery analysis. Mistake of law as a basis … Continue reading Reconsidering mistakes of law and discoverability<\/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":[16,5,444,150,97,79,4,109],"tags":[87,62,144,9,537,535,534,536],"class_list":["post-902","post","type-post","status-publish","format-standard","hentry","category-alberta","category-british-columbia","category-federal","category-manitoba","category-newfoundland-and-labrador","category-nova-scotia","category-ontario","category-saskatchewan","tag-discoverability","tag-discoverability-doctrine","tag-discoverability-principles","tag-discovery","tag-guest-post","tag-ignorance-of-law","tag-mistake-of-law","tag-samuel-beswick"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/902","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=902"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/902\/revisions"}],"predecessor-version":[{"id":904,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/902\/revisions\/904"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}