Limitation of Actions Consultation - Law Commission

10.93 Recent legislation in Newfoundland has also introduced a discoverability test, to be
applied to personal injury, property damage and professional negligence actions
and to a limited range of other actions. 292
Time will not run until the plaintiff
knows or, considering all the circumstances, ought to know that he or she had a
cause of action. 293
The elements of the knowledge required to start the limitation
period are not defined, but must include knowledge that the plaintiff had a cause
of action as a matter of law.
10.94 In Manitoba a different approach is taken. The court has a discretion to grant the
plaintiff leave to proceed out of time if it is satisfied that not more than 12 months
have elapsed between the date on which the applicant first knew or ought to have
known of all the material facts of a decisive character upon which the action is
based and the date of the application for leave. 294
10.95 The Nova Scotia legislation gives the court discretion to disapply the limitation
period in actions for, broadly speaking, contract or tort, if it appears to be
equitable to do so having regard to the degree to which the limitation period
prejudices the plaintiff, and to which a decision to disapply would prejudice the
defendant. 295
The court must take certain stated factors into account. 296
There is
no long stop, but the discretion to disapply does not apply where the limitation
period is 10 years or longer. 297
10.96 In nearly all of those jurisdictions where there is no statutory discoverability rule,
the courts have nevertheless applied one, construing a reference in limitation
legislation (both general and special) to the date when a cause of action accrued,
as a reference to the date when the cause of action was reasonably discoverable. 298
This tendency was begun by the decision of the Supreme Court of Canada in City
of Kamloops v Nielsen, 299
where the court was construing a special limitation period
applying to actions against local authorities in British Columbia. 300
The principle
adopted in the Kamloops case was applied more widely by the Supreme Court in
291 Section 3(1).
292 That is, actions for relief against the consequences of a mistake, fatal accident actions and
actions for non-fraudulent breach of trust: Limitations Act 1995, s 14(1). This implements
the recommendations of the Newfoundland Law Reform Commission, Report on Limitation
of Actions NLRC-R1 (1986), p 7 and Newfoundland Law Reform Commission, Working
Paper on Limitation of Actions NLRC-WP1 (1985), pp 192 - 204.
293 But a long-stop applies: see para 10.100 below.
294 Manitoba Limitation of Actions Act, RSM 1987, s 14(1). There is a long-stop: see para
10.100 n 319 below.
295 Nova Scotia Limitation of Actions Act, RSNS 1989, s 3(2).
296 Ibid, s 3(4).
297 Eg an action on a specialty.
298 Thereby rejecting the reasoning of the House of Lords in Pirelli General Cable Works Ltd v
Oscar Faber & Partners [1983] 2 AC 1: see para 3.15 above.
299 (1984) 10 DLR (4th) 641.
300 British Columbia Municipal Act 1960, s 738 (one year limitation period from accrual of
cause of action).
215