‘Appropriate Means’ ~ Enhancement of Discoverability in Ontario Limitations Law

Limitations Act, 2002, came into force, do parties and their lawyers avail themselves of the phrase “appropriate means” in s. 5, to toll the operation limitation periods?  The time has come for all lawyers, junior and senior, to be aware of these words as an enhancement of the discoverability principle.

Lawyers called to the Bar of Ontario prior to 2004 were happy, in some respects, to be rid of the arcane language of the old Limitations Act, R.S.O. 1990, c. L.15.  For over a decade, the battlegrounds were staged in the judicial interpretations of “accrued” causes of action, “discoverability” principles, and “special circumstances.” It was so hard to keep track of exemptions, and exemptions from exemptions, that the Law of Limitations in Ontario became quite the litigator’s minefield, especially in medical malpractice and other personal injury cases.  The Limitations Act, 2002, oddly not in force until 2004, was meant to eliminate legalese and to close loopholes.  It was supposed to be easier to observe limitation periods and harder for parties to avoid them. Still, as set out in my post on the subject, there remain plenty of exemptions.  Section 5 also codified the discoverabilty principle, whereby the time to start a legal proceeding tolled until a party knew or reasonably could have known that they had suffered harm for which there was a legal remedy.

This article describes the evolution of “discoverability” from the former regime, through what the Court of Appeal calls an enhancement of the principle, by what I call the “appropriate means” test.  Senior lawyers still operating under the pre-2004 understanding should understand the significance of this change.  Moreover, new lawyers should read the pre-2004 case law with great caution, because the prior case law was appreciably quicker to impute expert knowledge on lay persons.  Knowing that a law suit is an “appropriate means” to remedy a claim is not the same as suspecting one can sue, or wanting to sue. Continue reading