Not applying the objective test under s. 5(1)(b) of the Limitations Act, 2002 amounts to a reviewable error, Court of Appeal finds

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In Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, the Court of Appeal concluded that the motions judge erred in principle because she did not apply the modified objective test contained in s. 5(1)(b) of the Limitations Act, 2002 in applying the test for discoverability. Instead, her analysis was a purely subjective inquiry, which amounted to a legal error.

This decision serves as a reminder that both aspects of section 5 must be considered in order to determine discoverability: the subjective test under s. 5(1)(a) – when did the plaintiff have knowledge of the claim? And the modified objective test under s. 5(1)(b) – when did the plaintiff ought to have known about the claim? While s. 5(1)(b) seeks to make an objective determination by inquiring what a reasonable person ought to have known, the Court held that it imbues the hypothetical reasonable person with the subjective “abilities and … circumstances of the person with the claim.”

The reasonable person component serves to ensure that the plaintiff acted with reasonable levels of prudence and attention in attending to the risk of injury, loss or damage. Because the objective component of the test is modified, the Court held that the degree of prudence and attention that can reasonably be expected will vary among persons with claims, according to their abilities and circumstances – such things as level of intelligence, education, experience, resources, health, power imbalances, dependence and situational pressure or distractions that might bear on the ability to appreciate what is happening.

In this case, rather than imbuing the hypothetical reasonable person with the abilities and circumstances of the plaintiff, the motion judge imparted on that person the attitudes and practices of the plaintiff, thereby defeating the objective reasonableness inquiry. Where the hypothetical person is imbued with unreasonable imprudence or inattention, the Court held that the objective component of the test is defeated.