Two Passers, Two Hunters

When jurisdictions enact new legislation governing limitation periods for causes of action, the legislation will deal with the transition between the old regime and the new. Transition provisions are needed because incidents alleged to create causes of action may have occurred while the old legislation was in force but the action was not commenced until after the new legislation took effect.

Duchesne v. St-Denis2012 ONCA 699 is such a case.

It is an important case for Ontario lawyers on the interpretation of Ontario’s the Limitations Act, 2002, particular where the injured person was under the age of majority when the injury occurred. It may also be relevant to other Canadian jurisdictions which have equivalent legislation.

The key facts are simple enough for succinct summary. The incident occurred in June 2002. D was then 15. Ontario’s Limitations Act, 2002, went into force on January 1, 2004. He commenced his action against some of the people he alleged to be at fault in late August 2006. He turned 20 a few days later. That action was commenced within the limitation period under either the old or the new legislation. It was commenced within 2 years of him having reached the age of majority (18) so it satisfied the new regime. If it had been the old regime, he’d have had 6 years from the time he turned 18.

In June, 2009, D moved to add 2 new defendants. The motion was dismissed at first instance. The dismissal was upheld by the Divisional Court. D appealed to the Court of Appeal. The appeal was allowed. The Court of Appeal held that the issue of whether the claim was discovered or discoverable for the purpose of when the limitation period began to run was to be determined by the trial judge. D’s core argument was that he had discovered his claim against the proposed defendants before January 1, 2004 and, therefore, the limitation period for the action against them was 6 years from the time he turned 18.

I believe the decision is Ivory Snow (TM) correct for the statutory interpretation reasons the Court of Appeal gave. Those reasons are not germane to this comment so I won’t mention them. (Also, they’re complicated).

My point is that there’s an argument, which wasn’t addressed, which I think requires the conclusion that, as a matter of law, D was deemed to have discovered his claim against the proposed defendants before January 1, 2004. If that argument is correct, the Court of Appeal should have decided that D’s action was commenced in time.

The additional facts explain the title of this piece. D and the two proposed defendants were playing around a pool. One would jump into the pool while one of the others tossed a football to him. The idea was to catch the ball in mid-flight. In one of these attempts, D struck his head on a part of the pool.

Duchesne is a version of Cook v. Lewis, [1951] SCR 830. Assuming, for argument’s sake, that both of the proposed defendants (A and B) would be found to have been negligent – likely a safe assumption given what the two of them and D were doing – – then just one but not the other committed the negligent act which, in law, would be a cause of D’s injury. A and B were not joint tortfeasors. D’s explanation for why he had not commenced the action earlier was that he did not know which of A or B had committed the “but-for” act.

But, if Cook v. Lewis applies, it doesn’t matter. He didn’t have to know which of the two it was. He knew it was one of the two before January 1, 2004. The claim was discovered.

Duchesne was argued in September 2012. If the Court of Appeal panel saw the causation issue, they chose to not touch it. If they had, they’d have had to consider if Clements could change anything about the causation-based analysis. At the moment, I think it wouldn’t. I’ll leave it at that.

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