Do You Know When Your Limitation Period Begins?

• Published date: 21 May 2020
• Author: Mr Troy Baril and Hasith Andrahennadi
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Miller Thomson LLP

An analysis of the discoverability requirements under Saskatchewan's Limitations Act

Across Canada, limitation periods are provincially governed by limitations legislation. In Saskatchewan, The Limitations Act, SS 2004 (the "Act") creates a general rule: a claimant must commence a proceeding within two years after a claim is discovered. The Act states, in section 6, a claim is discovered on the day when the claimant first knew or ought to have known:

• the injury, loss, or damage has occurred;
• the injury, loss, or damage appears to have been caused by or contributed to by an act or omission that is the subject of the claim;
• the acts or omissions appear to be from the person or entity whom the claim is made against; and
• commencing a claim is an appropriate way to address the injury loss, or damage.

When a claim is challenged based on a limitation period, the relevant question is: when was the claim discoverable? This answer is: when all four discoverability requirements from section 6 of the Act were first present.

In Saskatchewan (Highways and Infrastructure) v Venture Construction Inc., 2020 SKCA 39, the Court of Appeal reviewed the Act and discussed when the four discoverability requirements will be satisfied.

What events led to this case?

In 2010, the Ministry of Highways and Infrastructure (the "Ministry") contracted Venture Construction Inc. ("Venture") to perform provincial highway work which required: (i) preparatory work; 2) laying down subgrade; and 3) surface paving. Venture subcontracted the preparatory and subgrade work to Johnston Bros. (Binscarth) Ltd. ("Johnston"). Johnston began its scope of work in August 2010 and completed a portion of the preparatory and subgrade work by December 2010.

In May 2011, when Venture attempted to begin surface paving, it discovered the subgrade was not up to standard and required extensive remediation before surface paving could commence. The Ministry opined Johnston had adequately performed the subgrade work, relying on previous testing results, and concluded Venture failed to properly prepare the subgrade work for the winter and was ultimately responsible for any deterioration that occurred over the winter.

In July 2011, Venture requested the Ministry's testing results on the subgrade work from 2010. The Ministry did not immediately respond; however, it did represent to Venture the subgrade had been adequate when the testing was completed, but became non-compliant due to excessive winter and spring runoff.

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