Limitation of Actions Consultation - Law Commission

(c) that the injury, assuming liability on the part of the defendant,
warrants bringing a proceeding (Province of Alberta, Limitations
Act c L-15.1 1996, section 3(1)(a)). 43
(3) 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). (Ontario Limitations
(General) Bill 1992, clause 5(1)).
(4) The date on which the plaintiff first knew, or in the circumstances ought to
have known, that:
(a) the injury in respect of which he brings proceedings had occurred;
(b) the injury was attributable to the conduct of the defendant; and
(c) the injury, assuming liability on the part of the defendant, warrants
bringing proceedings. (Law Reform Commission of Western
Australia). 44
12.29 In the light of the above proposals of other law reform bodies - and in line with the
present English provisions on discoverability - we consider that the definition of
discoverability should focus on three main factual elements:-
(1) knowledge of the facts constituting the cause of action;
(2) knowledge of the identity of the defendant;
(3) knowledge that the cause of action is significant.
We shall look at each of the above three main factual elements of the definition in
turn.
43 This Act was assented to on 1 May 1996. It is not yet in force. It is based on the
recommendations of the Alberta Law Reform Institute, Report No 55, Limitations (1989).
44 Report on Limitation and Notice of Actions, Project No 36 - Part II (1997) para 7.21.
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