The Limitation Clock: Which Way Is The Pendulum Swinging?

The Court of Appeal for Ontario recently released two decisions involving limitation period issues. In both Ali v O-Two Medical Technologies Inc¹ and 948298 Ontario Inc v Penretail II Ltd and Bentall Retail Services LP², the court overturned lower court decisions that found actions were commenced outside the two-year limitation period. Both cases turned on the issue of discoverability.

In Ali, the decision was based on well-established principles of contract law. However, in Penretail, the court seemed to depart from its earlier decision in Lawless v Anderson³ and its recent decision in Beaton v Scotia iTrade⁴ that a claim is discovered when a prospective plaintiff knows "enough facts" to assert a claim and that the extent of the loss need not be known.