Tender Choice Foods Inc. v. Versacold Logistics, 2013 ONCA 474 (Discoverability, s. 5)

In Tender Choice Foods Inc. v. Versacold Logistics Can. Inc., 2013 ONCA 474, the plaintiff claimed it only knew that it had a claim against the defendant (based on loss of product which had been stored at the defendant’s facility) when the defendant released an internal investigation report in 2010 regarding its inadequate security practices and procedures.  However, in the plaintiff’s own pleading, it stated that it knew that some of the goods were stolen as early as 2006 or 2007.  The defendant brought a motion to dismiss the plaintiff’s claim as statute-barred.  The motion was allowed on the basis that the plaintiff first discovered its claim in 2006 or 2007 upon learning that its property was damaged or lost.  According to Perell J., the plaintiff did not need to wait to sue, and it would not have been an exercise of reasonable diligence for a reasonable plaintiff to wait for the defendant to prepare its own report of possible want of care at their facility.  In or around 2006 or 2007, the plaintiff knew the identity of the alleged tortfeasor and the fact that certain of its product had gone missing.  That was enough to find that the plaintiff knew or ought to have known that it had a claim for negligence or negligent misrepresentation.

In a brief endorsement, the Court of Appeal upheld the lower court’s decision and stated that although the appellant may not have known the full extent of its damages in 2006, that was not required under s.5 of the Limitations Act.

The lower court’s decision contained a detailed analysis and much consideration was given to the principles surrounding discoverability under section 5 of the Limitations Act, 2002.  Those propositions are summarized below:

1. The discoverability principle governs the commencement of a limitation period and stipulates that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief.
2. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a claim can be based.
3. Discovery does not depend upon awareness of the totality of the defendant’s wrongdoing. Rather, discovery occurs when the plaintiff knows or ought to know of an injury caused by an act or omission of the defendant and, having regard to the nature of the injury, legal proceedings would be an appropriate way to seek a remedy.  Thus, the question is whether the prospective plaintiff knows enough facts to base a cause of action against the defendant; if so, the claim has been discovered and the limitation period begins to run.
4. For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant caused him or her harm; certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement.
5. That a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period.

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