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Discovery Occurs Without Evidence: Limitation Law Principles Involving When a Cause of Action Is Triggered
Question: When does the limitation period for a claim begin to run in Ontario?
Answer: In Ontario, the limitation period starts when a person discovers the facts establishing a cause of action, which could be before they have sufficient evidence to win a case, as outlined in the Limitations Act, 2002, and clarified in cases like Lawless v. Anderson, [2011 ONCA 102]. This principle ensures that individuals can pursue their claims when they possess enough information to identify a viable legal issue.
The Limitation Clock May Start Before Evidence Is Obtained
In legal proceedings, one crucial aspect is the accrual of a cause of action, meaning reason for suing, which determines when the clock for limitation periods begins to tick. This timing significantly influences the ability to bring forward claims and ultimately affects the administration of justice. A legal proceeding, meaning lawsuit, must be started within the limitation period; however, there are many limitation period principles that often arise including whether the limitation period clock starts when the facts for a case become known or when the evidence necessary to prove the facts is in hand or otherwise available.
The Law
In Ontario, the Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, prescribes a general requirement (there are other requirements depending upon the nature of the case) that a person must begin a lawsuit within two (2) years of discovering the cause of action for the claim made within the lawsuit. This is known as discoverability. Specifically, the Limitations Act, 2002, states:
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
A question of law as to whether a cause of action accrues, and thus whether the limitation period clock begins to tick, at the point of time when a harmed person becomes aware of the facts required for a legal case or when the evidence sufficient to prove the facts is acquired. This question is addressed by the Court of Appeal decision in Lawless v. Anderson, 2011 ONCA 102, and reiterated within subsequent cases, wherein each it is respectively stated:
[54] Whether a claim has been discovered is not a question of whether a plaintiff has acquired sufficient evidence to ensure that the case will be successful at trial. That is, a plaintiff does not require evidence sufficient to prove its case at trial, only that it has sufficient evidence to establish that a cause of action exists. As the Court of Appeal held in Lawless v. Anderson[11], such an approach:
…confuses the issue of when a claim is discovered with the process of assembling the necessary evidentiary support to make the claim “winnable”. To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding but is not needed to discover the claim.[12]
[51] Section 5(1) of the Limitations Act postpones the running of the limitation period until the material facts underlying the cause of action are known, or were reasonably discoverable.[6] It is a question of fact as to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known of the matters identified in s. 5(1)(a).[7]
[52] Whether a claim has been discovered is not a question of whether a plaintiff has acquired sufficient evidence to ensure that the case will be successful at trial. That is, a plaintiff does not require evidence sufficient to prove its case at trial only that it has sufficient evidence to establish that a cause of action exists. As the Court of Appeal held in Lawless v. Anderson[8], such an approach:
…confuses the issue of when a claim is discovered with the process of assembling the necessary evidentiary support to make the claim “winnable”. To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding but is not needed to discover the claim.[9]
[53] The claimant must act with due diligence in determining whether it has a claim.[10] Suspicion of certain facts, or knowledge of a potential claim may trigger a due diligence obligation. Once the due diligence obligation is engaged, the issue is whether a reasonable person conducting due diligence, with the abilities and in the circumstances of the claimant ought to have discovered the claim.[11]
[36] ... To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding, but is not needed to discover the claim.
Historical Context and the Discovery Principle
Limitation periods represent the timeframe within which a plaintiff must initiate a claim. Traditionally, these periods start from the date of the alleged wrongful act; however, complexities arise when harmful effects manifest over time rather than when the wrongful act occurred. The discovery principle addresses this by stipulating that the limitation period commences when the plaintiff becomes aware of sufficient facts to establish a claim.
Key Legal Issues Within the Discovery of Claims
Several challenges emerge in understanding when a cause of action accrues, impacting both plaintiffs and defendants in pursuing or challenging claims. These challenges may include:
- The Impact of Evidentiary Sufficiency:
The requirement for "sufficient facts" to bring a claim can be ambiguous. As seen in Lawless v. Anderson, a claim becomes discoverable when a plaintiff possesses sufficient grounds to make the requisitve allegations rather than when a plaintiff possesses sufficient evidence to prove the allegations. - The Uncertainty in Discovery Dates:
The determining of exactly when a claimant had or should have had requisite knowledge can complicate proceedings, potentially leading to disputes over when the limitation period should rightfully begin. - The Balancing of Circumstances of the Plaintiff:
The principle must accommodate diverse contexts and factual matrices, safeguarding fairness while avoiding misuse by delaying claim filing through claimed ignorance of facts.
Comprehensive Analysis of Accrual and Discoverability
The principle of discoverability provides flexibility, allowing plaintiffs to claim when equipped with enough information to identify a cause of action. This principle requires objective analysis of facts and often involves expert opinions, especially when harm or the incident that caused the harm is complex and without an immediately evident foundation. In assessing whether a cause of action was discoverable, courts typically consider whether a reasonable person would have discovered the claim within the given circumstances.
Conclusion
The discovery of a cause of action and the commencement of the ticking clock as relating to a limitation period is based upon acquisition of the knowledge of the factual details required to set out the requisite allegations for the corresponding lawsuit rather than acquisition of the evidence necessary to prove the factual details.