The new year is a time for resolutions and discovering strategies to achieve new goals. Unlike a new year’s resolution, discovering a claim for a lawsuit against another can occur at any time during the year. The consequences of failing to act may be more severe than abandoning a new year’s resolution. (See my previous blog on limitation periods.) Fail to commence a lawsuit within two years of discovering a claim for injury, loss, or damage, and there may be a viable limitations defence such that the claim is dismissed.
Evaluating when a claim has been, or should have been, discovered, and therefore, when the two-year limitation clock starts ticking is nuanced and technical. I will address the starting point in this blog and further considerations in subsequent blogs.
As the starting point, a claim is discovered when the person with the claim possesses the material facts necessary to draw a plausible inference of liability against a defendant.[1]
How much knowledge is needed to discover a claim according to this part of the legal test? The answer is that the claimant must have more knowledge of the claim than “mere suspicion or speculation,” but less than “perfect certainty” of the claim.
Discovering a claim does not depend on or require a claimant knowing exactly what act or omission caused their loss, injury, or damage. Instead, knowing that the person they wish to sue caused their loss, injury, or damage through some act or omission is enough to start the two-year limitation clock ticking. Discovering a claim and when the limitation clock starts to tick is case and fact specific. The type of information that leads someone to draw a plausible inference of liability against another person such that the claim is “discovered” depends on the specific circumstances of each case. There is no single document that will, in every situation, start the limitation clock; nor is there a one-size-fits-all approach to discovering a claim.
It is clear from the application of this test by the courts that a person with a claim does not need to obtain evidence that makes their lawsuit “winnable”[2] in order to discover a claim. The amount of knowledge needed to trigger the limitation clock is more than suspicion or speculation, but less than “certainty” or confidence that it is a “winnable” case.
What happens if the person being sued thinks that the person with the claim should have discovered it before they did? My next blog analyzes how courts determine when a claim should have been discovered by a “reasonable person” and situations where the limitation clock starts ticking before the plaintiff discovers the claim.
[1] Grant Thornton v New Brunswick.
[2] Lawless v Anderson
