Yes No Share to Facebook
Accrual of Cause of Action: The Recognition That Some Extent of Harm Has Occurred
Question: When does a cause of action accrue in Canadian law?
Answer: A cause of action accrues when a plaintiff becomes aware of some damage, even if the full extent is unknown, thus starting the limitation period. This principle, established in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, underscores the importance of timely legal action. Understanding this can help protect your rights and ensure you don't miss significant deadlines.
Accrual Occurs When Some Extent of Damage Becomes Known
When pursuing legal actions, understanding the precise date that a cause of action accrues is crucial. In Canadian legal practice, a pivotal aspect concerns recognizing when a Plaintiff realizes that some extent of initial damage has occurred, even if the full extent of the damage is unknown. This recognition of some initial damage sets the limitation period, commonly referred to as a statute of limitations, into motion.
The Law
The principle that a cause of action accrues, meaning arises, when some damage becomes known rather than the full extent of damage becomes known, is stated within the supreme Court case of Peixeiro v. Haberman, [1997] 3 S.C.R. 549, among many other cases. In Peixeiro, among other cases, it was specifically said:
18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.
[15] ... The law of discoverability does not require that a prospective plaintiff know the exact extent or type of harm he or she has suffered, or the precise cause of his or her injury, in order for a limitation period to run: Peixeiro, at para. 18. We therefore agree with the motion judge's conclusion that the appellant's actions against the respondents were statute-barred because they were commenced in January 2014, after the expiry of the two-year limitation period under the Act on December 13, 2013.
[13] The claimant only has to know enough material facts on which to base a legal allegation. Once the plaintiff knows that some damage has occurred and has identified the alleged wrongdoer, “the cause of action has accrued”.[3] Neither the extent nor the type of damage need be known. The claimant also need not know the details of the wrongdoer’s conduct or how the wrongdoer caused the loss. The question of “how it happened” will be revealed through the legal proceeding. As the Court of Appeal noted in McSween v. Louis when discussing the predecessor to the current Limitations Act:
To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view places the bar too high…[T]he production and discovery process and obtaining expert reports…are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants. In order to come within [s. 5 of the Act] it is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant.[4]
Historical Framework
Common law traditions emphasize a pragmatic approach to limitation periods, maintaining that a cause of action accrues when some damage is discovered, irrespective of knowledge of the full magnitude. The Peixeiro case emphasizes succinctly that ignorance about damage extent fails to delay commencement of a limitation period. Understanding this principle helps to ensure the timely pursuit of legal remedies. The principle addresses the need to balance the interests of a Plaintiff and a Defendant as litigative parties.
Challenges or Difficulties
Interpreting when damages are recognizable can present significant challenges. Cases where damages evolve over time or remain latent initially introduce complexity. Common difficulties include:
- The Delayed Realization:
Plaintiffs may realize an injury or damage months or years after the initial incident, complicating timely legal pursuits. This can result in potential statute-barred claims unless addressed swiftly. - The Incomplete Knowledge of Damage:
Legal systems recognize that complete knowledge of damages is unnecessary to start a limitation period, as reaffirmed in Peixeiro; however, the law also recognizes that a Plaintiff must discern when some level of damage has occurred, which can be legally nuanced. - The Identification of the Tortfeasor:
Identifying who is responsible for the injury or loss is essential. Without this, determining when an action accrues becomes challenging, potentially disadvantaging plaintiffs without proper identification at an initial stage.
Delaying Litigation
For various reasons as explained above, the harmed person who delays commencing litigation risks losing the right to sue. Per the Peixeiro case, generally, the limitation period clock starts ticking when some extent of harm, and who caused the harm, among other things, becomes known; however, in some circumstances, being where there is a reason founded in law, rather than founded in the full discovery of harm, delaying litigation may be appropriate and permissible. This permissibility in delaying litigation was stated in Carola v. VIP Reality Inc. et al, 2025 ONSC 440, wherein it was said:
[23] In Kaynes v. BP, PLC, 2019 ONSC 6464 (CanLII) at para. 83, the court explained that, for the limitation period to begin to run, the plaintiff need not know the full extent or quantification of her damages. Rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being worse off than before the defendants’ conduct. However, the court went on to state (at para. 85):
The appropriateness factor of 5(1)(a)(iv) introduces some uncertainty in the operation of the Limitations Act, 2002 but it also introduces some flexibility and fairness in the application of the discovery principle, which presumptively operates against the claimant as soon as a cause of action becomes objectively apparent. In Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, the Court of Appeal held that for s. 5(1)(a)(iv) to have a delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate. Appropriateness must be assessed on the facts of each particular case, including taking into account the particular interests and circumstances of the plaintiff.
Conclusion
Understanding when a cause of action accrues plays a crucial role in litigation. The key rulings emphasize the significance of recognizing the initial harm that sets limitation periods in motion and ensuring timely commencement of legal processes. Awareness and recognition of such principles helps to uphold the consistent and equitable application of justice across the legal spectrum.