Limitation of Actions Consultation - Law Commission

(3) Latent Damage
10.90 Nearly all the common law Canadian jurisdictions now have some form of rule
which prevents the limitation period running when the cause of action is not
capable of being discovered, although this has come about in a variety of ways.
10.91 In British Columbia the running of time for various wrongs, including personal
injury, damage to property and professional negligence does not run until: 284
the identity of the defendant is known to [the plaintiff] and those
facts 285
within his means of knowledge are such that a reasonable man,
knowing those facts and having taken the appropriate advice a
reasonable man would seek on those facts, would regard those facts as
showing that
(i) an action on the cause of action would, apart from the effect of
the expiration of a limitation period, have a reasonable prospect of
success; and
(ii) the person whose means of knowledge is in question ought, in
his own interests and taking his circumstances into account, to be able
to bring an action.
This provision 286
formed part of the recommendations of the Law Reform
Commission of British Columbia. 287
It is, however, subject to the general long stop
provision of section 8 of the Act. 288
10.92 The Limitations Act 1996 introduces discoverability for all actions in Alberta. 289
The limitation period commences on the date when the plaintiff knew, or in the
circumstances ought to have known,
(i) that the injury 290
had occurred
(ii) that the injury was attributable to the conduct of the defendant;
and
(iii) that the injury, assuming liability on the part of the defendant,
warrants bringing proceedings. 291
284 British Columbia Limitation Act, RSBC 1979, s 6(3).
285 Deemed to include the existence of a duty owed to the plaintiff and the fact that the breach
of a duty caused the plaintiff’s injury, damage or loss: ibid, s 6(4)(b).
286 As did, substantially, the rest of the Act.
287 Report on Report on Limitations Part 2 - General, LRC 15 (1974), pp 71 - 82. But note the
memorandum of dissent by Mr Peter Frazer recommending a more lenient test from the
plaintiff’s point of view: ibid, pp 82 - 83.
288 See para 10.100 below.
289 The Act incorporates recommendations made by the Alberta Law Reform Institute,
Limitations, Report No 55 (1989), pp 33 - 35; see also Institute of Law Research and
Reform, Alberta: Limitations Report for Discussion No 4 (1986), pp 107 - 133, 144 - 149.
290 Defined to include personal injuries, property damage, economic loss, non-performance of
an obligation and the breach of a duty: section 1(f).
214