Discoverability a Rule of Construction for Limitations

Limitations in personal injury litigation can be contentious, especially since the nature of the damages suffered by a plaintiff may not necessarily be known at the initial time of loss. This is especially true in claims that include chronic pain, as these types of medical conditions are not diagnosed until several weeks after an injury.

In these contexts, a plaintiff may rely on discoverability to exceed the two year presumptive limitation found in s. 4 of the Limitations ActCourts have extended this notion of discoverability even further, the Ontario Divisional Court finding in Pereira v. Contardo that the two year limitation did not begin until an expert report diagnosing a permanent chronic pain condition was obtained,

[55] As Justice Allen notes, s. 5(2) of the Limitations Act extends the time for the triggering of the limitation period until the point at which the party making the claim objectively discovers they have a cause of action. In the context of motor vehicle accident claims, the analysis of when a claim ought to be discovered is significantly complicated by the factor that the requisite knowledge includes knowledge that the cause of action satisfies a statutory threshold of seriousness imposed by the Insurance ActPeixeiro v. Haberman1997 CanLII 325 (SCC)[1997] 3 S.C.R. 549 establishes that there is no cause of action until the injury meets a statutory threshold of seriousness. In Peixeiro at para. 30, the Court stated that the cause of action does not exist until sufficient severity of injury exists. The limitation period does not begin to run until it is reasonably discoverable that the injury meets the threshold.

[58] As Justice Allen noted in Liu v. Silver, the determination of what a reasonable person would be taken to know about his or her claim, which in the immediate case would have to exceed a seriousness threshold, is fact-driven, to be decided based on the particular circumstances of each case. It is a question of fact whether the plaintiff, assisted by a lawyer, made a reasonably diligent investigation and then if the investigation was reasonably diligent whether the investigation had reached the point where a reasonably prudent lawyer would and should have determined that there was a claim that met the seriousness threshold of the Insurance Act. Yelda v. Vusupra is an example where the fact-driven analysis led to the conclusion in a motor vehicle accident claim that the plaintiff had ample information and ought to have commenced an action long before she did so with the result that her action was statute-barred.

The threshold for injuries in this context are that the impairments are serious and permanent, which requires a substantial interference with a person’s ability to continue their regular or usual employment, in a continuous manner or lasting indefinitely.

However, waiting beyond the two year mark to initiate a claim is often considered an unnecessary risk, and is typically avoided.

Courts in Ontario have also shifted their approach in applying discoverability for claims for contribution and indemnity in crossclaims or third party claims, if a defendant could not have reasonably known the identity or involvement of the proposed third party.

This appears to have started with Murphy v. Hart, where the Ontario Superior Court of Justice applied discoverability to a leak of an underground oil tank. However, the Defendants in this case had not exercised reasonable diligence from the leak discovered in 2009 in seeking to add claims for contribution and indemnity in 2015, and was not approved.

The Ontario Court of Appeal soon after found in Mega International Commercial Bank (Canada) v. Yung that the general rule for contribution and indemnity under s.
18 of the Limitations Act still did not displace the principle of discoverability in s. 5,

[63] In my view, s. 18 takes on meaning when it is linked to the Limitations Act, 2002, s. 5(2). Subject to the absolute 15-year limitation period in s. 15(2)ss. 5(2) and 18 together establish the presumptive limitation period for contribution and indemnity claims – a presumptive limitation period that incorporates the discoverability principles outlined in ss. 4 and 5(1). I emphasize the interaction between ss. 5(2) and 18 for two reasons.

[64] First, s. 18 is linked expressly to s. 5(2) in its opening phrase, “For the purposes of subsection 5(2) and section 15”. In my view, this opening phrase cannot be read as a direction to exclude contribution and indemnity claims from the operation of ss. 5(2) and 15, as was suggested in Hughes v. Dyck2016 ONSC 901 (CanLII)129 O.R. (3d) 495, at para. 37. The clause “for the purposes of” invokes these provisions. It simply cannot properly be read as dispensing with these provisions as if it said, “Notwithstanding subsection 5(2) and section 15”.

[65] Second, the thing or fact that s.18 deems to have occurred is the same thing or fact that is used in s. 5(2) as the trigger for the presumptive limitation period in ss. 4 and 5. Section 18 deems “the day on which the first alleged wrongdoer was served with the claim in respect of which contribution or indemnity is sought [to be] the day the act or omission on which the alleged wrongdoer’s claim is based took place.” Meanwhile, s. 5(2) treats “the day the act or omission on which the claim is based took place” to be the day on which a person with a claim is presumed to know that they have a claim within the meaning of s. 5(1). Section 5(2) is the only other provision in the Limitations Act, 2002 apart from s. 18 that uses the operative phrase that I have underlined in the preceding sentences. The two sections are clearly meant to intersect and work together. In effect, s. 18 provides the variable used in s. 5(2) as the trigger for the presumed limitation period for contribution and indemnity claims.

The previous decisions of the Ontario Superior Court of Justice had been split on how s. 18 should be interpreted. This case interpreted s. 18 as part of the integrated scheme established by the basic limitation period in s. 4 and the discoverability principle in s. 5, rather than an exception to the two.

The Ontario Court of Appeal released another decision this week in Tomec v. Economical Mutual Insurance Company, which provide further basis to extend limitations based on discoverability.

The Licence Appeal Tribunal (“LAT”) and the Divisional Court had previously decided in that case that discoverability did not apply to the two-year limitation found in s. 281.1(1) of the Insurance Act and s. 51(1) of SABS,

[66] In the case of a hard limitation period, there are policy considerations on both sides. In the case of the Insurance Act, and claims under the SABS, an insurer has no control over when an insured applies for a designation of catastrophic impairment. An insurer would not continually assess a claimant if ongoing expenses are not being submitted. Presumably, the legislature thought it important to provide for a reasonable period, after which an insurer’s obligation would be discharged, whether or not meritorious claims may be discovered later.

The provisions in the Insurance Act and SABS under appeal have since been repealed, but involved certain mediation procedures under the scheme.

The Court of Appeal overturned this position on the basis of a new Supreme Court of Canada decision in Pioneer Corp. v. Godfrey, where the Court applied the discoverability principle to extend the two year limitation period in the Competition Act,

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse1986 CanLII 29 (SCC)[1986] 2 S.C.R. 147, at p. 224Ryan, at paras. 2 and 22).

[32] This discoverability rule does not apply automatically to every limitation period. While a “rule”, it is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods (Peixeiro v. Haberman1997 CanLII 325 (SCC)[1997] 3 S.C.R. 549, at para. 37). It can therefore be displaced by clear legislative language (Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415 (CanLII)[2007] 3 F.C.R. 245, at para. 333, aff’d 2009 SCC 9 (CanLII)[2009] 1 S.C.R. 222). In this regard, many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability’s application, particularly in connection with ultimate limitation periods (see e.g. Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 45 and 15Limitations Act, R.S.A. 2000, c. L-12, s. 3(1)Limitation Act, S.B.C. 2012, c. 13, ss. 68 and 21The Limitations Act, S.S. 2004, c. L-16.1, ss. 57Limitation of Actions Act, S.N.B. 2009, c. L-8.5, s. 5Limitation of Actions Act, S.N.S. 2014 c. 35, s. 8; see also Bowes v. Edmonton (City)2007 ABCA 347 (CanLII)425 A.R. 123, at paras. 146-58).

[36] In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which stated that an action must be commenced within two years of the time when “damages were sustained” (para. 2). The use of the phrase “damages were sustained” rather than “when the cause of action arose” was a “distinction without a difference”, as it was unlikely that the legislature intended that the limitation period should run without the plaintiff’s knowledge (para. 38).

[37] It is therefore clear that the “the judge-made discoverability rule will apply when the requisite limitation statute indicates that time starts to run from when the cause of action arose (or other wording to that effect)” (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016), at p. 103, emphasis added). And, while my colleague Côté J. claims to disagree with my analysis, I am fortified by the endorsement in her reasons of this formulation of discoverability (paras. 140 and 149).

[emphasis in the original]

Applying these principles, the Court of Appeal overturned the Divisional Court’s decision on the basis that discoverability provides that limitations do not begin until the material facts are known or ought to have been known. The proper analysis is not to fix limitation to a particular event, but whether the limitation period is related to a cause of action or the plaintiff’s knowledge.

In this case, the insurer had refused to pay a benefit under the statutory scheme. They claimed that this was a specific event not tied to a cause of action. The Court of Appeal rejected this argument,

[36] The refusal to pay a benefit is clearly tied to the appellant’s cause of action. Absent a refusal to pay the benefit sought, there cannot be a claim made for mediation or an evaluation. Thus, the refusal to pay a benefit and the ability to make a claim are inextricably intertwined in the cause of action. The refusal cannot be stripped out of the cause of action and treated as if it is independent from it.

[37] This distinguishes the case at bar from the situations in Ryan and Levesque. In both those cases, the courts were considering limitation periods that were wholly independent from the cause of action. The commencement of the limitation period was tied to the date of the deceased’s death. In contrast, the applicable limitation period in this case is tied to the accrual of the cause of action.

The court also rejected the submission that the provisions in the Insurance Act were exempt from the operations of the Limitations Act, as there was no clear and explicit language to do so. The consumer protection purposes of the SABS led to an interpretation that a hard limitation was too restrictive approach for victims who suffer from lasting and very serious health impacts,

[46] Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment”: Rizzo & Rizzo Shoes Ltd. (Re)[1998] 1 S.C.R. 27, 36 O.R. (3d) 418, at para. 27.

[47] Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed any benefits until she obtained CAT status in 2015, she would not be caught by the limitation period: Machaj v. RBC General Insurance Company, 2016 ONCA 257, at para. 6Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits.

[48] This outcome is absurd. There is no principled reason for barring the appellant’s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late.

Despite the certainty desired through the creation of limitations, there are times that a hard limitation period would bar potentially meritorious claims, even where the plaintiff has been diligent in pursuing the claim.

The Court’s guidance in Pioneer means that a more integrated approach towards using discoverability will emerge outside the Competition Act and fraudulent concealment context that it was discussed. Central to this interpretation was the Court of Appeal’s comment at para 50, noting the significant disparity in resources between large insurance companies and their insured.

The policy objectives for limitations, to foster certainty, prevent evidence from going stale, and to encourage plaintiffs to be diligent in pursuing their claims, will also be balanced with the public policy objectives underlying the statutory scheme, especially where the focus is on consumer protection.

Comments

  1. Interesting and understood, thank you for this post.

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