Collision Course? Limitation Periods, The Supreme Court Of Canada, And The Court Of Appeal For Ontario

• Published date: 19 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Civil Law
• Law Firm: Fogler, Rubinoff LLP
• Author: Mr Ronald D. Davis and Keira Zlahtic (Summer Student)

What happens when an irresistible force meets an immovable object? That question comes to mind in reading two recent high-level decisions on limitation periods. Certainty that the Court of Appeal for Ontario may have created in its January 2021 decision of Kaynes v. BP p.l.c.¹ , may now be clouded by the Supreme Court of Canada's July 2021 decision in Grant Thornton LLP v. New Brunswick².

Kaynes is an intricately reasoned landmark analysis by Justice Feldman (for the Court) of the Ontario Limitations Act, 2002³ (LA2002) and the fraught issue of when a claim - as opposed to a cause of action - is discovered for limitation purposes, notably under the four subparagraphs of paragraph 5(1)(a).

The Supreme Court's decision in Grant Thornton presents Justice Moldaver's pointed and fairly summary reasoning (for the seven Judge panel) of when a claim is discovered under the three subsections of subsection 5(2) of New Brunswick's Limitation of Actions Act⁴ (LAA).

The Court of Appeal's analytical granularity in Kaynes contrasts with the Supreme Court's sweeping generality in Grant Thornton. Only time will tell whether the two decisions are destined to collide, or to endure on parallel paths.

In the following paragraphs, we will look at the two decisions separately. We will then compare them to...