Duchesne v. St-Denis, 2011 ONSC 2282

CITATION: Duchesne v. St-Denis, 2011 ONSC 2282

DIVISIONAL COURT FILE NO.: 09-DV-1540

DATE: 20110426

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ERIC DUCHESNE

Plaintiff

– and –

BRIAN MARCEL ST-DENIS and DANIELLE LISE MENARD ST-DENIS

Respondents

-and-

STEVE GAUVREAU and JEAN-MARC BEDARD

Third Parties

Joseph Y. Obagi, for the Plaintiff

Bryan A. Carroll, for the Third Party Jean-Marc Bedard

Pat C. Peloso, for the Third Party Steve Gauvreau

HEARD: January 5, 2011 and March 31, 2011

REASONS FOR JUDGMENT

JUSTICE POLOWIN:

1This is an appeal of a decision of Master Beaudoin, as he then was, dated July 8, 2009. The Appellant, Eric Duchesne (“Duchesne”) brought a motion to amend his claim to add the Third Parties, Steve Gauvreau (“Gauvreau”) and Jean-Marc Bedard (“Bedard”) as Defendants. Master Beaudoin determined that the Plaintiff was statute barred from amending his Statement of Claim to add the Third Parties to the main action. He determined that Duchesne had not “discovered” his cause of action against the proposed Defendants until after January 1, 2004 (the date the new Limitations Act, 2002, S.O. 2002, c. 24 came into force) and was therefore subject to a two year limitation period, as opposed to the six year limitation period, which was formerly in effect.

2This appeal requires a consideration of the transitional provisions of the Limitations Act, 2002 and whether Duchesne knew or ought to have known of his claim. It is the position of the Appellant that he knew or ought to have known of his claim prior to January 1, 2004 and consequently, that he is subject to a six-year limitation period by operation of the transitional provisions of the Limitations Act, 2002. The Respondents take the position that the cause of action was not discovered by Duchesne, or discoverable by him through the exercise of due diligence, prior to January 1, 2004 and consequently, that the new two year limitation period applies and his claims are statute-barred. The relevant provisions of the Limitations Act, 2002 are set out in Schedule “A” to this decision.

Factual Background

3The action relates to a swimming pool incident that occurred on June 23, 2002 at the property of the defendants Brian and Danielle St-Denis. Duchesne, then 15 (date of birth: September 5, 1986), was playing football around the pool with his friends Gauvreau, age 15 and Bedard, age 18. The game involved the boys throwing the football over the pool at one another and jumping into the pool in order to catch the football. At some point Duchesne jumped into the pool to catch the football at an angle and hit the bottom of the pool. He suffered a fracture of his cervical spine and was hospitalized for five months.

4Within months following the incident of June 23, 2002, Duchesne’s mother sought legal advice from experienced counsel, namely Ms. Giovanna Roccamo, as she then was, in regards to the pursuit of a legal action in respect of the incident. Duchesne was apparently told by his mother that he had a “lawsuit” against a “bunch of people.” However he decided not to pursue the matter further because he wanted to concentrate on his recovery.

5Sometime in 2004, realizing that there would be long term care and expenses, Duchesne consulted a lawyer, John Lundrigan (“Lundrigan”). He also met with his friend, Bedard, in 2004 to discuss the accident and to discuss whether Bedard would agree to visit a lawyer with him. After consulting with Lundrigan in 2004 and 2005, Duchesne eventually consulted Mr. Obaji and a Statement of Claim was issued on his behalf by Mr. Obaji on August 28, 2006, eight days before he turned twenty (eight days before the expiry of a two year period after he turned eighteen on September 5, 2004), naming as defendants only the St-Denis.

6The Third Parties were brought into this action by the Defendants St-Denis and this matter proceeded with discoveries of all parties during 2007 and a mediation on October 31, 2008. Duchesne reached a settlement on October 31, 2008 with the Defendants St-Denis in the form of a Pierringer Agreement, the terms of which have not been disclosed. In June 2009, Duchesne brought a motion, pursuant to Rule 26, to amend the Statement of Claim to add as parties Gauvreau and Bedard.

7It is conceded by all parties that prior to January 1, 2004 Duchesne was aware of the following facts:

(a) he was playing a game of football with Gauvreau and Bedard;

(b) the game involved jumping into an above ground pool;

(c) he suffered a spinal injury while playing this game;

(d) the pool was located at the premises owned by the St-Denis;

(e) his mother sought legal advice;

(f) he was advised by her that he had a claim against “a bunch of people;”

(g) he decided not to pursue an action because he wanted to concentrate on his recovery.

8The Appellant did not provide any affidavit evidence in support of his motion. The Respondents therefore examined the Appellant pursuant to Rule 39. They relied in the motion and in this appeal on certain admissions and statements made by the Appellant in his Examination, on May 22, 2009 and at his Examination for Discovery, on November 6, 2007.

9The Appellant admitted, at his Examination for Discovery on November 6, 2007:

• That the game was not dangerous or unsafe (Q: 507, pages 78, 79 and 159)

• That he did not think he should not be playing this game, as he did not see this as risky as he landed smoothly (Q: 576, 577, 578, page 89)

• That he was not expecting any supervision from his friends/that he did not expect them to tell him not to play this game (Q: 870, page 163)

• That he was not prompted, enticed or encouraged by his friends to play this game (Q: 853, 854, page 160)

• That he probably came up with the idea of playing this game (Q: 912,913,914, pages 172-173)

• That his friends could not have prevented his injuries (Q: 856, page 160)

• That he had jumped in this pool a number of times that day and had jumped in other above ground pools before and had probably jumped off the deck into a pool to catch a ball before at other locations although he could not remember (Q: 920, 921, pages 173-174)

10The Appellant was asked at his Examination for Discovery whether he thought the game was unsafe or dangerous. The transcript reads as follows:

507. Q. Did you think that that was a safe thing to do at the time?

A. At the time, age 15, jumping in the swimming pool that’s four and a half feet to five feet deep, feet first, knees first, no problem with that.

849. Q. I’m sorry, Eric, if my friend asked you this question. As you’re playing the game with your friends of catching the football, did you consider what you were doing dangerous or unsafe in any way?

A. At that time I am 15 years old. I mean I play a lot of sports. To me, no. I was 15. It wasn’t anything. I didn’t see anything wrong.

850. Q. You didn’t see it as being dangerous or unsafe at the time you were doing it?

A. No.

851. Q. You mean yes, you agree with me?

A. Well, now if I look at it now, yes, but back then definitely no.

11With respect to whether Gauvreau or Bedard could have prevented his injuries had they not thrown the football the following was stated:

856. Q. From the way you described the accident, Eric, could either Steve or Jean-Marc, could they have done anything to prevent the injuries that you sustained to your knowledge? Could they have prevented you from jumping or falling?

A. No.

Mr. Obagi: Except for the obvious, I guess, Counsel. They could not have thrown the football.

12At his May 22, 2009 Examination, the Appellant described a meeting with Bedard in a restaurant sometime in 2004 and disclosed his knowledge of a claim at the time as follows:

42. Q. That’s fine, but I’m trying to understand. And so you are telling me that some time in 2004 when you met Jean-Marc in that restaurant, at that time, you did not know that you had a case against Jean-Marc or Steve for what had happened to you; correct? That’s what you are telling me.

A. No. What I’m saying is that I had a case but I didn’t know specifically -

43. Q. Against whom.

A. Yeah, against whom.

44. Q. Okay, so that’s the same thing. You did not know then that you had a case specifically against Jean-Marc. You knew you had a case against somebody, but I am asking you specifically in 2004, if I understand what you are telling me, you did not know that you had a case against Jean-Marc specifically; correct?

A. I – You know I had spoken – I don’t know – no, there – not specifically.

45. Q. It’s the same answer for Steve Gauvreau; correct? As it is for the St-Denis’; correct?

A. Yeah.

Q. So at that time, Eric, some time in 2004, you are in the restaurant with Jean-Marc and I’m re-positioning you there every time because I want your – It’s hard to do. I want you to sort of go back there. Some time in 2004, you are in the restaurant with Jean-Marc and you are talking about this incident and so, if I understand you answers up to now, at that time, am I correct that you did not think that your injuries had been caused by any act or omission of Jean- Marc or Steve; correct?

A. I --

47. Q. At that time?

A. -- I didn’t know. I didn’t know. I just knew, then again, I had a case against a bunch of people. I didn’t -- I didn’t know much more than that.

48. Q. My question is very specific and I want to know specifically at the time – what I understand from your answers to my questions, Eric, is that, at that time, you did not know specifically that you could go after Jean-Marc or Steve for anything that they had done or not done. That’s what I understand.

A. Whether it’s Steve, the St-Denis’ or Jean-Marc, I didn’t know I had something specifically.

49. Q. Against one of them specifically, that’s what I’m understanding.

A. Against one of them specifically.

50. Q. That’s what I understand you are saying; correct?

A. Yes.

51. Q. If I understand what you are saying is, at the time, you were hoping that you had rights of action to give you some damages, but specifically at that time, if I understand you correctly, you did not know that suing Jean-Marc would give you damages. I mean, specifically suing Jean-Marc would give you damages. You did not know that at that time; correct?

A. Like I said before, I did not know I had, you know I -- Can you repeat the question because I really don’t understand it?

52. Q. Yes. I’ll repeat that question.

A. Thank you.

53. Q. It was a bit of a long question, Eric. If I understand what you have told me, in 2004, when you were meeting with Jean-Marc you, did not know that specifically suing Jean-Marc would give you or would result in damages to you; correct?

A. Yeah, but it goes for the same -- the same goes for Steve or the St-Denis’.

13The Appellant also stated the following on May 22, 2009:

62. Q. I understand, Eric, that despite -- and sorry, is it only your mother who consulted with lawyer Roccamo?

A. I’m pretty sure, yes.

63. Q. So I understand from your answers up to now, today, that despite your mother’s consultation with Justice Roccamo, your understanding in 2004, when you met with Jean-Marc, was as you described it to me just now, previously; correct? Vis-a-vis whom who you could sue specifically, your understanding in 2004, you have already described to me; correct?

A. Yeah, well that I had a case, yeah.

64. Q. But you didn’t know specifically against whom?

A. No. I didn’t know that.

65. Q. And that’s despite the fact of your mother’s consultation. We’re agreed on that, so your mother --

A. Yeah. Well, despite my mother’s conversation with Giovanna Roccamo, yeah.

14It is to be noted that Duchesne’s mother was never his litigation guardian with respect to this accident. A litigation guardian was never appointed in this matter as the action was started after he turned eighteen.

The Decision of Master Beaudoin

15Master Beaudoin reviewed the applicable provisions of the Limitations Act, 2002. He noted the Appellant’s position that he was aware of all the material facts in support of his claim prior to January 1, 2004, that is, that he was aware of all the circumstances and could identify all of the people involved (as set out in paragraph 7 above). He also noted the Appellant’s position that all he needs to satisfy the discovery of his claim is a knowledge of the material facts.

16However, relying on the case Thompson v. Zeldin, [2008] O.J. No. 3591, Master Beaudoin stated that knowledge of “material facts” requires more than knowledge of an accidental injury and the identities of the persons present. He stated that there must be knowledge that there is a claim against a person for which liability may attach. According to Master Beaudoin, this requirement is restated in section 5 of the Limitations Act, 2002. Master Beaudoin went on to state as follows at paragraphs 22 and 23:

Paragraph 5(1)(a)(iii) of the Limitations Act, 2002 specifies that the act or omission must be that of a particular person. Knowledge of an act or omission has to be specific to “that of the person against whom the claim is made.” Section (5)(1)(iv) requires knowledge “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.” In short, these sections require knowledge of a possible cause of action against a third party.

The Ontario Court of Appeal confirmed the importance of section 5(1)(iii) in Placzek v. Green:

If it is not otherwise obvious, s. 5(1)(a)(iii) of the new Act makes it clear the “acts or omissions” on which a claim is based must be the acts or omissions of the Defendant to the claim. In particular, s.5 (1)(a)(iii) provides that one element of discovering a claim is knowledge that “the act or omissions was that of the person against whom the claim is made.”

17Master Beaudoin then reviewed the admissions of the Appellant set out at paragraph 12 above. He concluded at paragraph 28 of his Decision:

In the light of these admissions, I conclude that the Plaintiff was not aware, prior to 2004, of any acts or omissions on the part of Bedard of Gauvreau that caused or contributed to his injuries nor was he aware that a proceeding against them would be an appropriate means to remedy his damages. He knew he had been injured, he knew who was present and he knew he may have claims against a “bunch of people” but he did not know what is required to have discovered a claim against Gauvreau and Bedard under the common law or section 5 of the Limitations Act, 2002. Moreover, this evidence is sufficient to rebut the presumption set out in section 5(2) of the statute.

18Master Beaudoin next went on to determine whether the Appellant could be deemed to have discovered his claim for the purpose of section 5 (1)(b) of the Limitations Act, 2002. He referred to the Court of Appeal Decision in St. Jean (Litigation Guardian of) v. Cheung (2008), 2008 ONCA 815, 94 O.R. (3d) 359 (Ont. C.A) (“St. Jean”) but noted that unlike the St. Jean case, the Appellant’s mother was never his litigation guardian with respect to the accident and her knowledge was not a relevant consideration. He framed the issue to be whether a minor can be deemed to have knowledge of a claim?

19Master Beaudoin rejected the Appellant’s argument that the reference to “person” in section 5(1)(b) includes a minor and that there is no reason not to invoke the “ought to have known” provisions of that section in the Appellant’s case. He found that this argument ignored the significance of a litigation guardian in the new legislative scheme. He stated at paragraph 35:

This argument ignores the significance of a litigation guardian in the new legislative scheme. By virtue of section 6, the limitation period is no longer suspended until the age of majority if the minor has a litigation guardian. Section 8 of the Limitations Act, 2002 provides that the section 5 discovery principles will apply to the litigation guardian. As such, the current legislation makes critical distinction between a minor and one who is represented by an adult.

20Master Beaudoin referred to Murphy v. Welsh; Stoddart v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069 (S.C.C.) (“Murphy v. Welsh”) where it was held that those under legal disability are presumed not to know their rights and remedies and that it would be unfair to expect them to proceed diligently in such matters. He also referred to the decision of the Alberta Court of Appeal in Stuffco v. Stuffco, 2006 ABCA 317, [2006] A.J. No. 1346 (C.A.) (“Stuffco”). He concluded at paragraphs 44-47:

The Third Parties argue persuasively that an acceptance of the Plaintiff’s argument would require all minors to act diligently in the discovery of their claims. Since a number of limitation periods are affected by the new legislation, other minors could be affected adversely. The impact of the transition provisions of the new legislation will disappear in time. For that reason, the courts should not allow the unusual facts of this case to dictate the formulation of a principle that could impact minors in other situations.

While I acknowledge that minors can be held legally responsible for their actions, it is quite a different matter to expect them to exercise due diligence in acquiring the knowledge of a legal claim. I conclude that the above-cited statement from the Supreme Court of Canada’s in the Murphy v. Welsh; Stoddart v. Watson is determinative of the issue.

As a final and alternative argument, the Plaintiff submits that if I have any doubt as to the discoverability of his claim, I should allow the amendments to allow the new Defendants to plead the expiry of the limitation period. In my view, the record before me is persuasive that he did not discover his claim prior to January 2004.

I agree with the Third Parties that the Plaintiff cannot be deemed to have had knowledge of the claim against the Third Parties prior to January 1, 2004. In this case, the limitation period began to run on September 5, 2004, when the Plaintiff attained the age of majority or at the latest prior to August 28, 2006, when as an adult Plaintiff, he consulted lawyers who issued a Statement of Claim. The Plaintiff is now out of time to add the Third Parties and the motion to amend is dismissed.

The position of the Appellant

21It is the position of the Appellant that no new facts or information have been put forward by the Respondents to support a finding that the Appellant’s knowledge of the incident has changed at any point in time after the date of the incident. All material facts contained in the proposed Statement of Claim were within the knowledge of the Appellant immediately after the incident. The Appellants have not identified any new facts or information which were discovered after January 1, 2004 and have not identified an alternate date of discovery. The Appellant noted that Master Beaudoin similarly failed to identify any new information or facts that came into the Appellant’s possession after January 1, 2004 and, without explanation, determined that the limitation period began to run the day the Appellant attained majority or, at the latest, prior to August 28, 2006, when as an adult plaintiff, he consulted the lawyers who issued his claim.

22It is submitted that Master Beaudoin erred in finding that the Appellant must be aware that bringing a lawsuit against a specific person (as opposed to a collective group of defendants) would give or result in damages, failing which a cause of action could not be said to have been discovered. It is submitted that if this decision were to be accepted, the entire law of discoverability would be called into question as most litigants can never really know whether their action will be successful until it is either settled or tried. Where liability may be attributed to a variety of different people depending on varying theories of liability, it is impossible for a plaintiff to say definitively who would ultimately be found liable. As is the case in all complex multi-party litigation, all the Appellant could fairly say is that he knew he had a case against a variety of people but could not say whether a lawsuit against any specific individual would be successful.

23According to the Appellant, many of the perceived facts relied upon the Respondents and by Master Beaudoin arise from a misinterpretation of the Appellant’s evidence at Examinations for Discovery and on Cross-Examination. It is submitted that no evidence has been presented by the Respondents to suggest that the Appellant did not know as of January 1, 2004 that the game which was played on June 23, 2002 was dangerous or unsafe. The very fact that the Appellant was seriously injured would suggest that he was fully aware that it had been a dangerous activity. Further, it is noted that the Appellant was never asked by the Respondents whether he believed the game to be dangerous or unsafe after he sustained his injuries (here referring to the questions and answers at paragraph 10 above). It is not surprising that the Appellant admitted that he did not think the game was unsafe or dangerous at the time he was playing it.

24It is submitted that no evidence has been submitted by the Respondents that the Appellant did not believe, prior to January 1, 2004, that any of his injuries were contributed to by an act or omission of the Respondents. They only asked him whether he thought that they had caused his injuries and in response he stated that he knew he had a case against a bunch of people (referring to question 46 and 47 set out in paragraph 12 above). It is submitted that the evidence of the Appellant was that the Respondents could have prevented his injuries had they not thrown the football (referring to question 856 at paragraph 11 above). It is submitted that prior to January 1, 2004, the Appellant believed he had a case against “a bunch of people” on a collective basis. There is no suggestion that the Respondents were not part of the “bunch of people” against whom he believed he had a case. The Appellant merely admitted that he was not certain whether he “had something specifically” against them individually (referring to questions 48 and 49 at paragraph 12 above).

25It is the position of the Appellant that no evidence was adduced by the Respondents to support a finding that the Appellant was not aware that a proceeding would be an appropriate means to seek a remedy. It is noted that the Respondents and Master Beaudoin relied upon the transcript evidence that the Appellant did not know that a lawsuit against Bedard or Gauvreau individually would result in an award of damages. It is noted that even in complex medical malpractice cases which require the opinion of a medical expert to determine whether a claim exists, a claimant simply being told “you have a case” is sufficient to find that actual discovery of the cause of action had occurred to commence the running of the limitation period, even though the identity of the specific individual involved was only contained in the medical records and not identified specifically by the Plaintiff (citing Ball v. Amendola, 2009 55309 (ON SC), [2009] O.J. No. 4114 (Ont. S.C) at paragraphs 175 and 185.)

26The Appellant also referred to the decision of Alexis v. Toronto Police Service Board, 2009 ONCA 847, [2009] O.J. No. 5170 (Ont. C.A.) where it was held that a claim was discovered by the plaintiff by mere fact that she was told by her counsel that she “had a good case”, despite the fact that she was not told specifically against whom she “had a good case.”

27The Appellant submitted that the Respondents are attempting to play a game of semantics. The Limitations Act, 2002 only requires knowledge that a proceeding is an appropriate means to seek a remedy; it does not require knowledge that the proceeding would be successful.

28In addition, it is the position of the Appellant that Master Beaudoin erred in assuming that the Appellant’s decision to initially bring a lawsuit against the St-Denis’ and not the Respondents was based on the fact that he had not discovered his claims against them at the time. No evidence was presented by the Respondents to suggest that the decision to exclude them from the initial lawsuit against the homeowners was in any way related to the discovery of the claims. Other equally valid explanations are available, including the desire to obtain co-operation from the Respondents in the Appellant’s lawsuit against the homeowners.

29The Appellant submitted that Master Beaudoin also erred in finding that a minor cannot be deemed to have discovered a cause of action. Claims of incapable and/or minor persons can be deemed to be discovered in one of two ways. First, the Limitation Act, 2002 specifically provides (section 5 (1)(b)) for deemed discovery on the day a “reasonable person with the abilities and circumstances of the person with the claim first ought to have known” of the claim. Master Beaudoin erred in reading into the legislation the term “reasonable adult” to replace “reasonable person” in section 5 (1)(b), due to his subjective relief of the intentions of the drafters of the legislation, despite no evidence being presented of legislative intention. The term “reasonable person” is clear and unambiguous. Minors are clearly persons and are referred to as persons in section 6 (a).

30Moreover, the legislation specifically contemplates that the reasonableness standard must be considered in light of the person’s abilities and circumstances, which would include the person’s age, education and life experience. It is submitted that contrary to section 5 (1)(b) of the Limitations Act, 2002, no attempt was made by Master Beaudoin to determine whether a “reasonable person” of the Appellant’s ability and in his circumstances ought to have known of the claim prior to January 1, 2004. He should have attempted this analysis and/or deferred the matter to a trial judge.

31In addition, it is submitted that Master Beaudoin erred in finding that minors would be adversely affected by a finding that discoverability principles apply to them. The legislation already protects minors who have discovered or ought to have discovered a claim by suspending the commencement of the limitation period until they reach the age of majority.

32It is submitted that the decision of Master Beaudoin is contrary to the Ontario Court of Appeal decision in St. Jean, supra, which deemed a person under legal disability to have discovered a claim. This case was reviewed in detail by counsel for the Appellant.

33Finally, the Appellant submitted that a minor can be deemed to have discovered a claim on the date that another person discovered the claim on their behalf. Cases including St. Jean, supra, are cited in support. The fact that the running of the limitation period was suspended during the period of incapacity does not mean the claim could not have been discovered by the litigation guardian. It is noted that the Appellant’s legal guardian sought advice, prior to January 1, 2004, from Ms. Roccamo with respect to the incident. As no new facts or information have come to light since that meeting, his legal guardian would have known or ought to have known of the claim at that time. This would be sufficient to “discover” the cause of action pursuant to the transition provisions of the Limitations Act, 2002.

34In summary it is submitted that the onus is entirely upon the Respondents to establish the expiration of the limitation period, as well as to establish that the action was not “discovered” prior to January 1, 2004. It is the position of the Appellant that the Respondents have not met this burden and that the amendment to add them as defendants ought to be granted.

Determination

35I have not set out the submissions of the Respondents in that their position has, in a large measure, been accepted in the determination of this matter.

36I turn firstly to the standard of the appellate review of a Master’s decision. The standard will depend on whether the question under appeal is one of law, fact or of mixed fact and law. A question of law attracts the correctness standard, while a palpable and overriding error must be found with respect to a question of fact. Where a question under appeal is one of mixed fact and law, the appellate court must determine whether or not the question is one in which either issue of fact or law dominate. Where the matter referred to is more a matter of legal principle, the standard of correctness applies. Where the matter referred to is one in which the legal principle and the facts are inextricably linked and facts dominate, significant deference must be accorded. In Plan Group v. Bell Canada, 2009 ONCA 548 (Ont. C.A.) the following is stated at paragraphs 26 and 27:

In determining the proper standard of review, however, it is important to keep in mind the distinction between the nature of the question addressed by the trial court (i.e., a question of fact, a question of law, or a question of mixed fact and law) and the standard of appellant review of the trial court’s disposition of that question. The distinction does not matter if the trial court was answering a question of fact (where the standard of the appellant review is palpable and overriding error) or a question of law (where it is correctness). But the distinction is important where the question addressed was one mixed of fact and law. To say that a matter raises a question of mixed fact and law, by itself, does not mean that the standard of appellant review is necessarily one or palpable and overriding error. As Housens tells us, at para. 36, “[m]atters of mixed fact and law lie along a spectrum.” Thus, where the question at issue is determined to be one of mixed fact and law, the appellate court must take a further step and go on to locate the precise question at the proper point on the Housen spectrum in order to determine the applicable standard of appellate review.

Where the matter referred to is more a matter of legal principle and sits towards the error of law end of the spectrum, the standard is correctness. Where the matter is one which the legal principle and the facts are inextricably intertwined – where the facts dominate, as it were – it falls more towards the factual end of the spectrum, and significant deference must be accorded. Contractual interpretation, in my opinion, is generally the type of case that falls within the former category, negligence one that generally falls into the latter.

37In Sheeraz v. Kayani, 2009 CarswellOnt 5397 (Ont. S.C.J.) Price J., noting Court of Appeal jurisprudence, stated that the determination of when the limitation period begins to run is one of fact. However, even if in the circumstances of this case the issue of whether or not a claim had been actually discovered is not a pure question of fact (Master Beaudoin having applied section 5 of the Limitations Act, 2002), it is, at the very least, a mixed question of fact and law in which facts predominate. The decision of Master Beaudoin with respect to the question of actual discovery should be reviewed on a standard of palpable and overriding error. However the issue of deemed discovery required the interpretation of the legislation. This is a question of law and the correctness standard must be applied.

38The Appellant relied heavily on the decision of the Ontario Court of Appeal in St. Jean, supra. This was an appeal by the plaintiffs from a decision dismissing their claim on the basis that it was out of time. In November 1982, Robert St. Jean was born severely hypoglycaemic and suffered serious brain injury rendering him mentally incompetent. In November 2002, a medical malpractice suit was started on his behalf by his litigation guardian. The defendants were the mother’s obstetrician and the hospital. None of the three doctors who treated Robert after his birth were named as defendants in the first action. In February 2003 the litigation guardian (a law clerk) received the complete hospital chart in relation to the birth. A review of the chart would have disclosed the postnatal care that Robert received from those three doctors. In 2005 another lawyer took over the file. He retained a neonatologist who provided an opinion that the likely cause of his protracted hypoglycaemia was the inadequate treatment he received postnatally. In May 2006, a second action was commenced by his litigation guardian (his mother).

39Gillese J.A., writing for the Court of Appeal, set out section 24(5) of the Limitations Act, 2002. She stated that section 24(5) will apply if two conditions are met: (1) the former limitation period did not expire before January 1, 2004; and, (2) a limitation period under the new Limitations Act, 2002 would apply if the claim were based on an act or omission that took place on or after January 1, 2004. She stated at paragraphs 50-60:

As both conditions in s. 24(5) are met, this subsection applies. The question that divides the parties is whether rule 1 or rule 2 of s. 24(5) applies. If rule 1 applies, the new Limitations Act applies as if the act or omission had taken place on January 1, 2004. If rule 2 applies, however, the former limitation period governs. Which of rule 1 or 2 applies depends on whether the claim was “discovered” before January 1, 2004.

The appellants argue that the claim was discovered before January 1, 2004. They submit that the motion judge erred when he held that the litigation guardian appointed in the first action could not “discover” the existence of a claim until January 1, 2004. They contend that a claim is discovered when the material facts on which it is based have been, or ought to have been, discovered by the exercise of reasonable diligence. In making this submission, they rely on the common law meaning of discoverability. As the litigation guardian in the first action had knowledge of all the material facts giving rise to the claim in the second action by no later than February 2003, the claim was discovered at that time.

The new defendants argue that the motion judge correctly found that Robert's claim against them was not “discovered” before January 1, 2004. They say that Robert's claim against them was not discovered before January 1, 2004, because before that time, only he, as the person with the claim, was capable of discovering it. Thus, whether or not he had a litigation guardian who knew all the material facts on which to base a claim, the limitation clock did not start to run because the claim was not “discoverable.” They argue that because Robert's mental incompetence prevented him from discovering his claim, the claim could not have been discovered before January 1, 2004. While the new Limitations Act changed the law so that discovery of a claim by a litigation guardian is now deemed to be discovery of the claim by the person under a disability, where the litigation guardian acquired the knowledge before January 1, 2004, January 1, 2004, is deemed to be the day of discovery.

I do not accept the new defendants' submission. It is correct that prior to January 1, 2004, the appointment of a litigation guardian for a minor (or incompetent) plaintiff did not have the effect of “crystallizing” a claim and thereby cause the limitation period to begin to run: see Rothwell v. Raes (1988), 1988 4636 (ON SC), 54 D.L.R. (4th) 193; affirmed on appeal (1990), 1990 6610 (ON CA), 2 O.R. (3d) 332 (C.A.), leave to appeal to SCC refused, [1991] S.C.C.A. No. 58, 2 O.R. (3d) xii. However, the reason is not, as the new defendants contend, because the claim could not be discovered by anyone other than the person with the claim. In Rothwell at pp. 266-68, Osler J. referred to the well-settled principle of law that the Rules of Civil Procedure may not be permitted to conflict with an Act of the legislature. He noted that it was the Rules of Civil Procedure that created the mechanism by which a litigation guardian could be appointed to pursue a claim by a person under a disability. Accordingly, he concluded that appointment of a litigation guardian pursuant to the Rules of Civil Procedure could not overcome the “absolute protection” given to the person with the disability provided by s. 47 of the former Limitations Act.

Similarly, Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, does not stand for the proposition that only the person with the claim could discover the claim. In Murphy v. Welsh at p. 1080, the Supreme Court of Canada explained that the reasonable discovery rule was fashioned in incest cases to prevent the injustice of a claim becoming statute-barred before the plaintiff became aware of its existence. There is nothing in the reasoning to suggest that the claim could not be discovered by anyone other than the person with the claim.

I accept the appellants' submission on this matter. In my view, the claim was discovered prior to January 1, 2004. Robert's litigation guardian is treated as having discovered the claim against the new defendants when she obtained the hospital records in February 2003. Her knowledge was acquired in her capacity as Robert's litigation guardian and, therefore, in law can be imputed to Robert but not for the purposes of triggering the running of the limitation period. The fact that the running of the limitation period was suspended during the period of incapacity does not mean the claim could not have been discovered by the litigation guardian. The two notions are different, but related, and should not be conflated. The decision of the Supreme Court of Canada in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, supports this view. In Peixeiro, the Supreme Court stated, at para. 41, “There is no conflict between the rule in s. 47 of the [former] Ontario Limitations Act (which merely codifies the common law rules against allowing time to run against those under a legal disability) and the discoverability principle.”

I would add that the normal meaning of the word “discovered” accords with this view. Think of the many law suits that are started while a person is in a period of incapacity. Although the limitation period does not run during the incapacity, the act or omission that founds the claim must have been discovered as it is the basis for the lawsuit.

In addition, interpreting “discovered” in this way is consistent with the meaning given to that word elsewhere in the new Limitations Act. Section 5(1) of the new Limitations Act provides that a claim is discovered on the earlier of (a) the day on which the person with the claim first knew certain things and (b) “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).” Section 8 of the new Limitations Act provides that “if a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.”

Accordingly, to the extent that ss. 5 and 8 of the new Limitations Act guide the interpretation to be given to the word “discovered” in s. 24(5) 1 and 2, Robert discovered the claim in February 2003 when his litigation guardian received the hospital records.

It was suggested that to interpret “discovered” by reference to ss. 5 and 8 for events that pre-date January 1, 2004, amounts to giving the legislation retroactive effect. I disagree. Interpreting the word “discovered” in that manner does not have the effect of deeming the law to be different from what it was prior to January 1, 2004. Rather, this approach enables the court to apply the word “discovered” in s. 24(5) in the manner intended by the legislature. It is a basic tenet of statutory interpretation that language in a piece of legislation is used consistently. As Ruth Sullivan states in Sullivan on the Construction of Statutes, 5th edition, at p. 361: “[I]t is assumed that language is used consistently, that tautology is avoided, that the provisions of an Act all fit together to form a coherent and workable scheme.” (footnotes omitted) As the meaning of the word “discovered”, for the purposes of the new Limitations Act is contained in s. 5, following this tenet of statutory construction, one would apply that same meaning to the word throughout the legislation.

In conclusion on this point, rule 2 of s. 24(5) is operative and the former limitation period applies. The former limitation period in s. 24 includes the postponement or suspension of a limitation period pursuant to s. 47 of the former Limitations Act: see Philion (Litigation Guardian of) v. Lemieux (Estate of) (2007), 2007 ONCA 281, 85 O.R. (3d) 1 (C.A.), at paras. 18-21. Thus, the running of the limitation period continues to be suspended due to Robert's mental incapacity and the second action was brought in time.

40What distinguishes St. Jean, supra, from the case at hand is that no litigation guardian was ever appointed for the Appellant. While his mother consulted Ms. Giovanna Roccamo through a telephone call and a meeting, the Appellant did not participate in those discussions. Moreover, as she was never his litigation guardian with respect to this accident, her knowledge is not a relevant consideration (as distinguished of course from what he said he learned from her). There is no affidavit evidence from the mother that would indicate what she told the Appellant after consulting with Giovanna Roccamo.

41There is no dispute that the transitional provisions of the Limitations Act, 2002 apply to this case. The critical issue is whether rule 1 or rule 2 of section 24(5) governs. Section 24(5) states:

24. (5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:

25. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

26. If the claim was discovered before January 1, 2004, the former limitation period applies.

Discoverability is codified in section 5 of the Limitation Act, 2002, which provides:

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

42Section 5(1)(a)(iii) requires that the act or omission be that of a particular person. Knowledge of an act or omission has to be specific to “that of the person against whom the claim is made.” This was confirmed by the Ontario Court of Appeal in Placzek v. Green; 2009 ONCA 83 (Ont. C.A.) (“Placzek”). While this case focussed on section 24 and the Court found that the transition period did not apply, it stated at paragraph 41:

If it is not otherwise obvious, s. 5(1)(a)(iii) of the new Act makes it clear that the “acts or omissions” on which a claim is based must be the acts or omissions of the defendant to the claim. In particular, s. 5(1)(a)(iii) provides that one element of discovering a claim is knowing that “the act or omission was that of the person against whom the claim is made.” 6

6Although it may not be appropriate to apply all of the sections of the new Act when interpreting the transition section, in St. Jean, at paras. 57-59, this court held that it is appropriate to refer to other sections of the new Act that describe the meaning of words used in the transition section.

43Master Beaudoin referred to Placzek, supra, in his Decision. He also noted the case of Thompson v. Zeldin, supra. Master Beaudoin stated at paragraphs 18 and 19:

In Thompson v. Zeldin my colleague Master Glustein held that the common law doctrine of discoverability had not been modified by section 5(1)(iv) of the Limitations Act. He cited the Central Trust decision and summarized the common law principle as follows:

...the limitation period runs if a party knows sufficient facts to base allegations of his or her claim... It is not necessary to understand the potential success of a legal claim, but rather to know facts sufficient to allege that a party has committed an act against the person for which liability may attach.

Contrary to the submissions of the Plaintiff, knowledge if the “material facts” requires more than knowledge of an accidental injury and the identities of the person present. As Master Glustein noted, there must be knowledge that there is a claim against a person for which liability may attach. This is restated in section 5. While holding that section 5 did not modify the common law rule Master Glustein went on to apply all of the elements of section 5 (i), (ii), (iii) and (iv) to the facts of the case.

44It is also my view, contrary to the submission of the Appellant, that for the purpose of section 5, knowledge of the “material facts” requires more than knowledge of an accidental injury and the identities of the persons present. There must be knowledge that there is a claim against a person for which liability may attach. Further, section 5(1)(iv) requires knowledge “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.” Section 5(1)(iii) and section 5(1)(iv) require knowledge of a possible cause of action against specific persons.

45I note in this regard that section 24, which does not contain language referring to a particular person, has been interpreted as being defendant-specific. In Placzek, supra¸ the Court of Appeal stated at paragraph 39 that the term “acts or omissions” in section 24(2) refers to acts or omissions of a defendant. Further, at footnote 6 to paragraph 41, the Court of Appeal referred to St-Jean, supra, at paragraphs 57-59 and noted that the Court had held it appropriate to refer to other sections of the new Act that describe the meaning of words. Paragraphs 57-59 of St-Jean are set out above.

46In St-Jean, the Court of Appeal reviewed Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774 and found that the word “proceeding” in section 24 cannot be sensibly interpreted without reference to the party against whom an action is brought. The Court stated at paragraph 30 and 31:

On appeal, this court held that the motion judge erred in applying s. 21 of the new Limitations Act. In reaching this determination, it was necessary to determine whether the conditions in s. 24(2) had been met. Justice Feldman, writing on behalf of [page368] the court, concluded that although the plaintiffs had commenced a proceeding before January 1, 2004, it was not a proceeding in respect of acts or omissions of Dr. James and, therefore, it was not a proceeding within the meaning of s. 24(2). At para. 11 of the reasons, she explains:

The term “claim” is defined in s. 1 of the new Act as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. This definition focuses on particular acts or omissions, even if more than one act or omission by more than one party contributed to the same injury. The term “proceeding” is not defined in the new Act. However, it is defined in rule 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as “an action or application”. Thus, the words “claims . . . in respect of which no proceeding has been commenced” in s. 24(2) refer to claims resulting from particular acts or omissions by a particular party for which no court action has been commenced. This interpretation has been applied in several decisions of the Superior Court of Justice, including Pallotta v. Marks, [2005] O.J. No. 2963 (S.C.J.), in which Hoy J. noted at para. 23 that it would be inconsistent with the scheme of the new Act “for 'proceeding' in section 24(2) to be interpreted without reference to the person against whom the proceeding is made”. Accordingly, although the plaintiffs commenced a proceeding within the limitation period against certain defendants in respect of their acts or omissions, no proceeding was commenced by the plaintiffs in respect of the acts or omissions of Dr. James. Consequently, the transition provision, s. 24 of the new Act, applies.

In my view, Pepper has been overtaken by the more nuanced approach in Meady. The word “proceeding” in s. 24(2) cannot be sensibly interpreted without reference to the party or parties against whom an action is brought. The acts or omissions had to have been performed by someone. Before the second action was commenced, there had been no proceeding based on the acts or omissions of the new defendants in 1982. In the first action, it was the acts or omissions of Dr. Makkay and the Hospital which were the basis of the claim.

47A plain reading of section 5 (1)(a) makes it clear that the act or omission at subparagraph (iii) must be that of a specific person. In addition, a “proceeding” at subparagraph (iv) must be interpreted in a manner consistent with section 5, and as such, a “proceeding” must be against a specific person. It would be inconsistent with the scheme of section 5, and the Limitations Act, 2002, for a “proceeding” to be interpreted without reference to the person against whom it is brought.

48The Appellant submitted that the Master erred in finding that the Appellant must be aware that the bringing of a lawsuit against a specific person (as opposed to a collective group of defendants) would give or result in damages, failing which a cause of action could not be said to have been discovered. However, a reading of the Decision clearly indicates that he made no such finding. While there is reference to “would give or result in damages” in questions 51 and 53 from the Appellant’s May 22 Examination (set out in paragraph 12 above), Master Beaudoin referred to questions 42-53 in their entirety. Master Beaudoin stated at paragraph 18 “there must be knowledge that there is a claim against a person for which liability may attach” (emphasis mine). He stated at paragraph 22 that “these sections require knowledge of a possible cause of action against a third party” (emphasis mine). He imposed no requirement that the Appellant must be aware that the bringing of a lawsuit against a specific person would give or result in damages.

49I do not see how St-Jean, supra, assists the Appellant with respect to the first part of Master Beaudoin’s Decision that is, with respect to “actual” discovery. It is a case that deals with a litigation guardian and deemed discovery. Further, in Ball v. Amendola, supra, also relied upon the Appellant, the Court considered the Regulated Health Professions Act, 1991, S.O. 1991 c. 18 not the Limitations Act, 2002. Finally, in Alexis v. Toronto Police Service Board, supra, the plaintiff had obtained legal advice regarding the appropriate means to seek a remedy in 2005 and was consistently told she had a good case. The fact that counsel advised her that he would have to review the various hospital and police records before being sure did not, in the Court’s view, delay the start of the running of the limitation period. It is factually distinguishable from the case at hand.

50The Appellant did not participate in the consultations with Ms. Giovanna Roccamo in 2002. There is no affidavit from his mother with respect to what she may have been told. In any event, her knowledge is not relevant. All that he knew is that he had a “lawsuit” against a “bunch of people.” However the Appellant stopped this process. He explained at his Examination on May 22, 2009 that he did not wish to pursue the matter at that time because he had tremendous work to do to get better and did not want to be distracted. It was not before 2004 that the Appellant started to focus on his legal remedies, as he realised he would incur long-term care and expenses going forward.

51During his Examination on May 22, 2009, the Appellant agreed that he did meet with his friend, Jean-Marc Bedard, in 2004 to discuss how the accident happened and whether Mr. Bedard would agree to visit a lawyer with him. This would indicate that in 2004, the Appellant would not have known of any act or omission of Mr. Bedard that caused or contributed to his injuries. Obviously, he would not have asked for his friend’s assistance if he thought otherwise.

52Further, during his Examination, the Appellant described his knowledge of a claim in 2004 as follows:

• He did not understand that he had a case against the St-Denis’. (page 12 of the transcript)

• “I knew that I had a serious injury. I knew this injury was going to lead to long term care and I knew that this long term care had expenses. And I knew I had, well I knew I had a case and that’s it.” (page 12 of the transcript)

• He did not know that he had a case against anybody specifically. (page 12 of the transcript)

• “What I am saying his that I had a case but I didn’t know specifically...yeah against whom.” (page 13 of the transcript)

• He did not know that he had a case against Jean-Marc Bedard. (page 14 of the transcript)

• At that time, he did not know that his injuries had been caused by any act or omission of Jean-Marc Bedard or Steve Gauvreau. (page 14 of the transcript)

• “I didn’t know. I didn’t know. I just knew then again, I had a case against a bunch of people. I didn’t – I didn’t know much more than that.” (page 14 of the transcript)

• At that time, the Appellant did not know he could go after Bedard and Gauvreau for anything that they had done or not done. “Whether it’s Steve, the St-Denis’ or Jean-Marc, I didn’t know I had something specifically”... “against one of them specifically.” (page 14 of the transcript)

• At that time, he did not know that suing the St-Denis’, Mr. Bedard or Mr. Gauvreau would result in damages. (page 15 of the transcript)

53Master Beaudoin reviewed the evidence given by the Appellant at his Examination for Discovery and Examination on May 22, 2009 and specifically the Appellant’s admissions that he only knew he had a case against a “bunch of people;” he did not know he had a case specifically against the Respondents; he did not know his injuries had been caused by any act or omission of the Respondents and he did not know he could “go after” the Respondents for anything they had done or not done. While it is true that counsel for the Respondents never specifically used the word “contributed to” in their questioning at the Examination on May 22, 2009, it is clear on the totality of the questioning and the answers given, that the Appellant did not know, prior to January 1, 2004 that he had a claim against the Respondents for any act or omission on their part.

54Master Beaudoin’s findings of facts are reasonable and supported by the evidence. In my view he correctly held, based on the evidence and the Appellant’s own admissions, that the Appellant did not know before January 1, 2004 that he had a claim against the Respondents.

55For completeness, I note that the Respondents asked this Court to draw an adverse inference from the fact that the Appellant did not file affidavits from the mother, Ms. Giovanna Roccamo or John Lundrigan in support of his motion, as it was readily apparent that the limitation period issue would be the major, if not only, focus. It is not necessary for me to draw an adverse inference based on the findings I have made. However, I do note that very capable and experienced counsel took no steps to add the Respondents to the Statement of Claim as Defendants in August 2006 or even after the Examinations for Discovery. This fact undermines the Appellant’s claim that he discovered or can be deemed to have discovered his claim against the Respondents before 2004.

56I turn now to the second issue before Master Beaudoin. Was the claim discoverable by the Appellant prior to January 1, 2004? Section 5(1)(b) of the Limitations Act, 2002, states that a claim will be considered “discovered” on the day that a reasonable person with the abilities and circumstances of the person with the claim first ought to have known of the claim. It is the position of the Appellant that “person” includes a minor. It is the position of the Respondents that it does not.

57The case law supports the position of the Respondents. In Murphy v. Welsh, supra, one of the issues to be determined by the Supreme Court of Canada was “In actions on behalf of infants and those under legal disability for damages occasioned by a motor vehicle, will be the limitation period be reckoned from the date the person comes of age or disability ceases or from the date of the accident?” The Court examined the purpose of limitation legislation and stated the following at pages 1080-1081:

This Court recently described the purpose of limitations legislation in M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6. This case involves a claim for damages for incest brought well after the expiration of the limitation period, even allowing for the plaintiff to reach majority. La Forest J. stated at pp. 29-30:

In order to determine the time of accrual of the cause of action in a manner consistent with the purposes of the Limitations Act, I believe it is helpful to first examine its underlying rationales. There are three, and they may be described as the certainty, evidentiary, and diligence rationales: see Rosenfeld, “The Statute of Limitations [page1080] Barrier in Childhood Sexual Abuse Cases: The Equitable Estoppel Remedy” (1989), 12 Harv. Women's L.J. 206, at p. 211.

Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), 4 T.R. 301, 100 E.R. 1031, and A'Court v. Cross (1825), 3 Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations.

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim.

Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion.

While these rationales benefit the potential defendant, the Court also recognised that there must be fairness to the plaintiff as well. Hence, the reasonable discovery rule which prevents the injustice of a claim's being statute barred before the plaintiff becomes aware of its existence: Kamloops (City of) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2; Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147; M. (K.) v. M. (H.), supra. A limitations scheme must attempt to balance the interests of both sides.

The s. 180(1) limitation period favours the defendant by serving both the certainty and evidentiary rationales. The diligence rationale cannot be used to support s. 180(1). Implicitly, diligence requires awareness of one's rights. Those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters.

58Murphy v. Welsh, supra, clearly provides that minors are presumed not to know their rights and that it would be unfair to expect them to proceed diligently. The case has not been overturned or critiqued. The principle established therein has been recognized in other cases and is, in my view, reflected in the Limitations Act, 2002.

59In Re: Serban Estate, 2009 Carswell Ont 797, (“Serban”) the deceased died intestate in 2007 and was survived by his wife and child who was six years old. The Office of the Children’s Lawyer (“OCL”) applied on behalf of the child asking to be appointed the litigation guardian. The respondents claimed that the OCL had knowledge of the claim for support for the child for over one year yet took no action and therefore, the claim was statute barred under the Limitations Act, 2002. Section 61 of the Succession Law Reform Act, R.S.O. 1990, c. 34 s.26 contained a six month limitation period from the grant of letters of administration. The respondents submitted that if the claim should have been discovered by the person who became the litigation guardian (the OCL), then the limitation period starts to run even though no proceedings have been commenced. Strathy J. stated the following at paragraphs 12-14:

Subsection 19(5) of the LA provides that the provisions of sections 6, 7, and 11 apply with necessary modifications to the statutory limitations contained in the Schedule. In the context of this case, section 6 is relevant. It provides that the limitation period established by section 4 (the general limitation period) does not run during any time in which the person with the claim (a) is a minor and (b) is not represented by a litigation guardian in relation to the claim. Mr. Pascaluta refers to sections 4 and 5 dealing with discoverability and says that a "necessary modification" in the words of section 19(5) of the LA is to import the “discoverability principle” - if the claim should have been discovered by the person who became litigation guardian - in this case the OCL, the clock starts running, even though no proceedings have been commenced.

Mr. Pascaluta candidly acknowledges that there is no authority for this proposition at least, no decided case in which it has been accepted or applied. In my view, with deference to Mr. Pascaluta's forceful submissions, the submissions and interpretation runs counter to the plain language of section 6 of the LA and seeks to introduce a third exception to section 6 i.e. "(c) or, when the person appointed litigation guardian or the OCL knew or ought to have known of the claim." In my view, this interpretation is not to be found in the language of the statute and on the contrary, as Ms. Popovic-Montage submits there are other sections (such as section 8 and section 14(4) of the LA) which suggest that notice to anyone other than a duly appointed litigation guardian is entirely irrelevant.

In my view, the interpretation urged by Mr. Pascaluta would lead to chaos, would impose an intolerable burden on the OCL and would defeat the entire purpose of s. 6 of the LA - to protect minors.

60This case stands for the proposition that no other party but a duly appointed litigation guardian can be deemed to ought to have discovered a claim on behalf of a minor. This is consistent with section 8 of the Limitations Act, 2002.

61In other cases, courts have protected the rights of minors. In Papamonolopoulos v. Toronto (Board of Education) (1986), 1986 2688 (ON CA), 56 O.R. (2d)1 (Ont. C.A.) leave to appeal ref’d (1987), 1987 5366 (SCC), 58 O.R. (2d) 528 (S.C.C.), the plaintiff was injured in a school activity at sixteen years of age, but did not bring an action until shortly after she reached majority at eighteen. Section 11 of the Public Authorities Protection Act, R.S.O 1980, c.406, provided a six month limitation period. Section 47 of the Limitations Act, R.S.O. 1980, c.240, provided that where a person entitled to bring an action in sections 45 or 46 is at the time the cause of action accrues to a minor, the period within which the action may be brought shall run from the date when such person becomes of full age. The trial judge found the defendant negligent and assessed damages, but dismissed the action as out of time.

62The Court of Appeal noted that the predecessor to section 47 finds its origin in the early laws of England referring to a statute enacted in 1623. It stated at page 3:

And so, since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them. Williams, Limitation of Actions in Canada, 2nd ed. (1980), p. 203, says:

All modern Limitation of Actions Acts recognize infancy as a disability. Naturally, the rationale is that an infant is unable adequately to look after his own affairs, including the bringing of actions. Clearly, the rationale will be affected by the modern move towards lowering the age of majority.

In Halsbury's Laws of England, 1st ed., vol. 19, p. 56, para. 90, “Limitation of Actions”, the following appears:

90. If a cause of action accrues to a person who is at the time of the accrual either under age or of unsound mind, the statute does not run until he is of age or of sound mind.

But in both Ontario and England in modern times, limitation periods are prescribed not only by the Limitations Act but also by special provisions in separate statutes for certain causes of action. This is such an instance. The issue here is whether s. 47 of the Limitations Act is restricted to limitation periods set out in that statute or is a general provision applicable in the absence of clear words to the contrary to all limitations periods including, in this case, the one set out in s. 11 of the Public Authorities Protection Act, R.S.O. 1980, c. 406.

63The Court of Appeal concluded that section 47 applied generally to limitation periods prescribed by the Limitations Act, and in absence of clear wording to the contrary, by other statues which provide for the limitation of an action.

64Further in Rodenbush v. Shaver (1956), 1955 231 (SK CA), 16 W.W.R. 477 the Saskatchewan Court of Appeal protected the rights of a minor until she turned twenty-one years of age. It stated:

The proposed plaintiff at the time of the accident was an infant, 19 years of age, and became 21 years of age on December 26, 1954. She was not aware of her rights till some time in January, 1955, when her father-in-law consulted a solicitor and as a result the solicitor made preparations for an application for an extension of time under sec. 153 (3) of The Vehicles Act. The motion was launched on May 16, 1955. In Simpson on Infants, 4th ed., p. 43, the learned author, in dealing with the disability of an infant, is reported as follows:

“Similarly laches will not prejudice an infant for the presumption of law is that he does not understand his rights and is not capable of taking advantage of the rules of law so as to apply them to advantage.”

65Finally, I note the case of Stuffco, supra. The transitional provision of the Alberta Limitations Act, R.S.A. 2000, c.L-12 also make reference to “ought to have known.” The Alberta Court of Appeal held that the time where a claim “ought to have been discovered” is suspended until the age of majority.

66In Stuffco, the plaintiff began an action against her parents for damages arising from a motor vehicle accident that occurred when she was a minor. The Court of Appeal found that because the legislation suspended the running of the limitation period as against a minor, the actual or imputed knowledge of a minor is also suspended until the age of majority. The Court stated at paragraphs 44, 46 and 47:

In my view, it makes more sense to say that s. 5(2) suspends the actual or imputed acquisition of a minor's knowledge of a claim until the minor comes of age. Thus, even when a minor has actual or constructive knowledge of a claim, the earliest she can be deemed to possess that knowledge is her 18th birthday. This is consistent with the threshold issue in applying s. 2(2) which is whether the claimant knew or ought to have known of her claim. It follows that s. 2(2) does not apply in the present case because the appellant cannot be deemed to have known of her claim until November 9, 2001, well beyond March 1, 1999.

The limitation period set out in s. 3(1)(a) is triggered by either actual or imputed knowledge of the three matters set out in the section. For the same reasons expressed above in relation to s. 2(2), I find that s. 5(2) suspends the possible acquisition of that knowledge until the minor turns 18. This means that November 9, 2001 is the earliest date the appellant could have acquired sufficient knowledge of her claim to trigger the limitation period set out in s. 3(1)(a). It is also the earliest date that the 10-year limitation period found in s. 3(1)(b) could begin to run. The statement of claim was filed on April 22, 2003, prior to the expiry of either limitation period. The action is not barred, therefore, by the limitation provisions of the New Act.

This decision is in keeping with the primary purpose of the New Act which is to delay the operation of the limitations clock until a claimant knows of her claim. It is also consistent with the purpose of s. 5(2), and its replacement s. 5.1, both of which recognize that minors are not capable of discovering the full extent of their legal rights, particularly in relation to suits against their parents, until they reach the age of majority.

67The Alberta Court of Appeal thus held that the intention of the legislature in delaying the running of a limitation period against a minor, recognized the fact that a minor is not capable of discovering the full extent of his or her claim prior to reaching the age of majority.

68The Appellant has relied on the decision of St. Jean, supra. However that case is clearly distinguishable from the case at hand. In St. Jean the plaintiff was represented by a litigation guardian. The case did not deal with section 5(1)(b). It interpreted section 5(1)(a) where a litigation guardian was in place. In the case at hand, the Appellant’s mother was not his litigation guardian and as I have stated earlier her knowledge is irrelevant. St. Jean does not stand for the proposition, as suggested by the Appellant, that the knowledge of the Appellant’s legal guardian (his mother) is sufficient to “discover” the cause of action pursuant to the transition provisions of the Limitations Act, 2002. It holds that the key to affecting the rights of a minor is for a litigation guardian to be appointed. This is also reflected in Serban, supra.

69I am mindful that section 5 of the Limitations Act, 2002 refers to “person” and not “adult person” but surely that is not the end of the analysis, as indicated in Stuffco, supra. Like Master Beaudoin, I note that the common law test previously made reference to the “reasonable man” and the new legislation uses gender neutral language and refers to “person.” I also question whether the drafters of the legislation intended to use the term “reasonable adult” instead.

70The Limitations Act, 2002 must be viewed in its totality. Section 5 does not stand alone. Section 4 sets out the two year limitation period. Section 5(1)(a) sets out the test for when a claim is discovered. Section 5(1)(b) deals with deemed discovery. Section 6 sets out that the limitation period established by section 4 does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim. Section 8 provides that if a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim. Thus, section 8 provides that a litigation guardian can discover a claim for a minor. If one accepts the position of the Appellant, section 8 would not be required. Further, section 9 must be noted. A potential defendant may apply to have a litigation guardian appointed for a potential plaintiff. The appointment of the litigation guardian ends the postponement or suspension of the running of the limitation period if certain conditions are met. One of the conditions that is required is that the litigation guardian must know of the matters referred to in section 5(1)(a). This is consistent with an interpretation that a minor with no litigation guardian, cannot be deemed to have discovered a claim.

71Looking at the statute in its entirety, it first speaks generally of persons but then specifically deals with minors. The principle of statutory interpretation, generalia specialibus non derogant (the specific provision overrides or prevails over the general provision), is applicable.

72In my view, the Appellant’s argument that the Appellant or a reasonable minor with the Appellant’s abilities and in his circumstances ought to have known of the matters referred to in section 5(1)(a), runs contrary to the statutory protection afforded to minors (not represented by litigation guardians) and is contrary to the law. Minors are presumed not to know their rights and are protected during their period of disability. Murphy v. Welsh, supra, is dispositive of the matter. This has been recognized in other decisions and is reflected in the Limitations Act, 2002 itself.

73Discoverability, before being codified in section 5, was a rule of statutory interpretation designed to prevent an injustice to a plaintiff who may not be aware that he/she has a cause of action. For the Appellant to submit that the Master had an obligation to determine whether the Appellant ought to have known that he had cause of action, flies in the face of that. It has the effect of turning discoverability into a sword, as opposed to a shield, just so as to take advantage of a transition period.

74The Limitations Act, 2002 contains provisions to protect minors. It defers the running of a limitation period until a person reaches the age of majority, except in cases where a litigation guardian has been appointed. Had the legislature intended to insert additional exceptions to this rule, it would have clearly done so.

75In summary, it is my view that Master Beaudoin did not err in his conclusion of law with respect to the issue of discoverability that is, that as a minor with no litigation guardian, the Appellant cannot be deemed to have known of the claim. Further, for the reasons set out above, he correctly held that the Appellant did not know, before January 1, 2004 that he had a claim against the Respondents. Master Beaudoin correctly held that the limitation period began to run on September 5, 2004, when the Appellant attained the age of majority or thereafter when he consulted with his lawyer, which resulted in the Appellant issuing a Statement of Claim on August 28, 2006. At the latest, prior to August 2006, the Appellant ought to have known of his claim.

76The Appellant is therefore out of time to add the Respondents as defendants. Section 21 of the Limitations Act, 2002 provides that if a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. In Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 2008 O.N.C.A 469, the Ontario Court of Appeal ruled that the doctrine of special circumstances no longer applies in respect of the Limitations Act, 2002.

77The appeal is dismissed. If counsel are unable to come to an agreement on costs, the Respondents may provide written submissions on costs within fourteen days of the release of this decision. The Appellant has a further fourteen days to provide responding submissions.

Polowin J.