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ARTICLE · 13 AUGUST 2021

Supreme Court Of Canada Clarifies The Limits Of The Discoverability Rule

Gowling WLG
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In 2009, the province of New Brunswick guaranteed loans totalling over $50 million for the Atcon Group of Companies, conditional on an external review of Atcon's assets.

CanadaLitigation, Mediation & Arbitration
Jacqueline Armstrong Gates
Jacqueline Armstrong Gates
Sean M. Sullivan
Sean M. Sullivan
Erica Johnston
Erica Johnston
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In Grant Thornton LLP v New Brunswick1, the Supreme Court of Canada (SCC) overturned the decision of the New Brunswick Court of Appeal2 (Court of Appeal) and clarified the test for determining when a claim is discoverable. For limitation periods subject to the common law discoverability rule, the clock starts to run when the plaintiff has actual or constructive knowledge of material facts upon which it may make a plausible inference of the defendant's liability. The SCC found that this standard properly balances the policy objectives of the discoverability rule: it avoids unfairly depriving a plaintiff from bringing a claim before it can be reasonably expected to know the claim exists, while allowing for reasonable certainty and finality for defendants.

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