Skip to content

Brought to you by

Dentons logo

Limitations Law Blog

Updates on key developments on laws involving limitation periods in Ontario.

open menu close menu

Limitations Law Blog

  • Home
  • About us

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

By Dentons Limitations Law Group
May 15, 2019
  • Discoverability
Share on Facebook Share on Twitter Share via email Share on LinkedIn

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.

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Dentons Limitations Law Group

About Dentons Limitations Law Group

The Limitations Law Blog contains summaries of the latest developments arising from appellate and lower court decisions on limitations law in Ontario. Subscribe today and be one of the first to receive our insights on recent limitations law developments in Ontario.

All posts

RELATED POSTS

  • Discoverability
  • Limitation Periods contained in "Other Acts"

Supreme Court of Canada determines that limitation period contained in s. 36(4)(a)(i) of the Competition Act is subject to discoverability

By Dentons Limitations Law Group
  • Contribution and Indemnity
  • Discoverability

Limitation period for contribution and indemnity begins to run when defendant served with claim, even if defendant had prior knowledge of the claim

By Dentons Limitations Law Group
  • Acknowledgment
  • Discoverability

Emails can satisfy the acknowledgement requirement and Forbearance can postpone discoverability of a claim

By Dentons Limitations Law Group

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Dentons boilerplate image

Twitter

Categories

  • Acknowledgment
  • Adding a Party
  • Amending Pleadings
  • Attempted Resolution
  • Contribution and Indemnity
  • COVID-19
  • Demand Obligations
  • Discoverability
  • Enforcement of Foreign Judgments
  • General
  • Limitation Periods contained in "Other Acts"
  • Limitation Periods in Federal Court
  • Misnomer
  • Motions to Strike
  • Notable cases in other provinces
  • Special Circumstances
  • Statutory Variation of Time Limits
  • Successors
  • Tolling/Varying Agreements
  • Transitional Provisions
  • Ultimate Limitation Periods

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site