Grewal v. Ivany, 2008 ONCA 687.
This is an interesting decision of the Court of Appeal of Ontario from last year. It addresses the issue of discoverability and when a limitation period starts running.
In Ontario, claimants normally have two years to commence an action. This however is subject to discoverability.
The injured parties were involved in a motor vehicle accident and waited three and a half years to commence an action. The motion judge dismissed the plaintiff's action as out of time.
The Court of Appeal held that the plaintiff's lack of prognosis, along with a medical notation in the family doctor's notes that the plaintiff's pain is chronic, were not enough to start the limitation period running.
Further the Court of Appeal said that there wasn't enough evidence to conclude that the plaintiff would meet the threshold or not, so he couldn't know if he should commence a claim or not. This was despite the fact that the plaintiff had admitted during cross examination that he was uncertain if his neck pain would go away at a time more than two years before he commenced the action. In other words, he knew he had pain and he knew he might not get better.
It is interesting that the threshold seems to have protected the plaintiff from the statute of limitations.