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The Rule of Discoverability

Time limits to sue are governed by specific legislation with respect to the nature of the claim (e.g., Insurance Act) or they fall within the general limitation legislation, being the Limitations Act.   Specific limitation periods were discussed in a prior blog post “Time Limits to Sue”.

For those claims governed by the Limitations Act, including personal injury cases, medical malpractice cases, breach of contract cases and most commercial dispute cases, the limitation period is generally governed by the Rule of Discoverability.

In short, the rule of discoverability holds that a limitation period will begin to run only when the circumstances surrounding the claim ought to have been discovered through the exercise of reasonable diligence.   The discoverability rule thus acts to delay the commencement of the limitation period post negligence in certain situations where reasonable knowledge of the claim is not forthcoming.  The test of what the plaintiff ought to have known is that of reasonable diligence analyzed in the context of the three factors outlined in s 3(1)(a) of the Limitations Act:

  • That the injury occurred;
  • That the injury was attributable to the conduct of the defendant, and
  • That the injury warrants bringing proceedings. 

What is required is knowledge of the facts that support the claim, not knowledge of the law. There is no requirement that the plaintiff have clear information about the injury. The test is whether the claimant was reasonably diligent in investigating whether or not it had a claim in the circumstances (see Condominium Plan 0125764 v Amber Equities Inc, 2015 ABQB 235 at paras 93-95).

In cases of medical malpractice, it can be, but is not always clear when the discoverability clock starts the two-year limitation. If a surgeon cuts off the wrong leg during a surgery, there is little doubt that the two-year limitation starts to run from the moment that the victim wakes up from the operation and realizes what has happened.  It becomes more difficult when there is a medical procedure, intervention, or treatment which causes an injury, but the link between the injury and the medical intervention is not discovered until some later date. In these cases, which are referred to as delayed discoverability cases, the clock will start to run on the two-year limitation from the time the injured person knew, or ought to have known, of the link between the medical care, procedure, or intervention and the poor outcome or injury for which they want compensation.

In R (SE) v Calgary City Police Services, 2010 ABQB 406 at para 59, the Court distilled the principles relating to discoverability under the limitations legislation as follows:

  • The limitation starts to run from when the claimant knew or ought to have known that the injury was attributable to the defendant.
  • Mere suspicion is not sufficient. However, perfect knowledge is not required.
  • There must be facts to support the suspicion to start the limitation running.
  • When determining what facts are necessary the court should examine the situation from a subjective/objective perspective which takes into account the claimant's "important and substantial interests".
  • The time begins to run when, in light of the claimant's particular situation, the bringing of a suit is reasonably possible and not when it would be ideal from the plaintiff's perspective.

The time at which a plaintiff had sufficient knowledge to start the running of the clock is a fact-dependent inquiry which will vary on a case-by-case basis. For this reason, we always recommend that you act diligently and contact a lawyer as soon as possible if you suspect you may have a claim. You can contact a lawyer at Weir Bowen here.

By Michael Shepherd