‘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.

Review of s. 5 shows there are four elements to the analysis, the first three elements of which track the pre-2004 case law.  Clauses (a) and (b) of s. 5 call for a subjective – objective review of the facts.  Either a party knew of the four elements, or was able to know of them in the circumstances.  The chronologically earlier of the subjective or objective knowledge will determine the date on which the limitation period starts to run.  Beyond that, the elements of actual or imputed knowledge are simplified as follows:

(i)           injury or damage

(ii)          causation between the injury or damage and a legal cause of action

(iii)         identity of party who breached the legal duty

(iv)         whether a law suit would be an appropriate means to remedy the claim.

The provisions of clauses (i) to (iii) are analogous to the traditional discoverability principle.  Although the case law under the prior legislation did tend to incorporate a connection between the knowledge of being wronged and the availability of a remedy in the courts, it tended to be closely tied to lay knowledge, as set out in my article on the operation of the former prescription period for suing doctors.  (In that instance, the lay knowledge was that of a lawyer operating without an expert medical opinion.  Essentially, the case law developed such that an expert medical opinion was not necessary for a limitation period to run.)

Item (iv) is an attempt to codify the principle that the wronged person must know or be presumed to know that a law suit is viable in the circumstances.  However, the use of the words ‘appropriate means’ imports a new concept.  It is evident from recent judicial decisions that the use of the words are gaining traction as a departure from the pre-2004 law.

In Everding v. Skrijel2010 CarswellOnt 3975, at para. 13, the Court of Appeal for Ontario held that “[t]he requirement of ss. 5(1)(a)(iv), the propriety of a proceeding as a means to obtain a remedy, enhances the cogency of the discoverability analysis … when applied under the new Limitations Act, 2002” (emphasis added).  There, the time the plaintiff ought to have known about bringing a law suit as an appropriate remedy did not occur until she knew she had permanent and serious injuries for which damages could be awarded despite the deductible threshold under s. 5 of regulation 461/96 under the Ontario Insurance Act.  This is clearly not an analysis of a lay person’s ability to know the appropriateness of a judicial remedy.  Only a lawyer practising personal injury law would have the training to be expected to appreciate the significance of this.  Moreover, such a lawyer might very well advise against bringing a suit until damages for the client’s injuries are capable of being pursued in court.  Thus, wanting to sue or suspecting injuries because of someone’s fault, are sometimes not enough to start the limitation period.

In Black v MacDonald, 2011 CarswellOnt 48 (Ont. Master), the master momentarily appeared to return to the lay knowledge test previously described in my article on medical negligence.  The court held that the plaintiff, who claimed not to have been aware of the basis for a suit against his former solicitor until he received a legal opinion on the former solicitor’s handling of a litigation matter, ought to have pursued the question more vigorously.  “Black is clearly not unaware of the practice of or shy about suing legal advisors.  It is therefore surprising that he would not have jumped on [the former solicitor’s] submissions at the cost hearing early on, yet there is no evidence that he asked any of the lawyers consulted to opine regarding [the former solicitor’s] handling of the action.”  Was the court encouraging clients to ‘jump’ on their lawyers when they suspect something going awry?

A further Ontario Superior Court decision seems to have righted the course.  In Lopez v. Frias, 2011 CarswellOnt 12149 (Ont. S.C.J.), the judge appreciated that a party may be aware of having been wronged, but that the appropriateness of seeking a judicial remedy may not be known until the technical legal elements of a cause of action are known:

“A reasonable person with the abilities and in the circumstances of the Plaintiff might well have had reason to suspect that that ought to be so but to initiate a claim for fraud solely on that basis would be perilous. So it is not clear that the Plaintiff knew at that time or ought to have known that (per S 5(1)(b) of the Act) that a proceeding would be the appropriate means to seek to remedy it. So the Limitation Period has not expired.”

The court thus held that a plaintiff may have had sufficient facts to appreciate the existence of a claim.  However, knowledge of those facts was insufficient to conclude with certainty that a claim has been discovered for the purposes of determining whether a law suit was appropriate.  Therefore, it was not possible to determine whether the two-year limitation period had expired.

As in all litigation, each case will present its own merits, whether a limitation period has begun because a party is aware of the appropriateness of a judicial remedy to right the alleged wrong.  However, the car-crash example in Everding, mentioned above, shows even everyday cases may involve legal complexity about the availability of a remedy.  Simply being wronged and wanting to sue may not be enough.  A client may be advised not to sue until a certain level of damages have accrued.  The ‘appropriate means’ test will evolve with judicial interpretation as the Ontario limitations regime goes forward.  For now, it is important to recognize it as an enhancement of the discoverability principle.  For any party or lawyer seeking to relieve a party from the operation of a limitation period, or seeking to repair a client matter where a limitation period is thought to have expired, it is now standard of care for an Ontario advocate to consider the application of the ‘appropriate means’ test.  This development has two consequences to your practice.  (1) If you think your client’s limitation period has been missed, this may provide relief and allow you to escape a negligence claim.  (2) If you are responding to a pleading that an action is statute-barred, you must consider this test as a possible relief valve to be argued against the expiry of the limitation period.  Failure to do so in the appropriate case may be a breach of the standard of care.

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