2012 ONCA 699, 2012 ONCA 699

Duchesne v. St-Denis et al.; Gauvreau et al., Third Parties [Indexed as: Duchesne v. St-Denis] 112 O.R. (3d) 378 2012 ONCA 699 Court of Appeal for Ontario, Weiler, Sharpe JJ.A. and Mackinnon J. (ad hoc) October 17, 2012 Limitations -- Discoverability -- Legal consequences that flowed from known facts not required in order for plaintiff to have actualknowledge of claim under s. 5(1)(

a) of Limitations Act, 2002 -- Section 5(1)(

b) of Act applying to minors who are not represented bylitigation guardians -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1). The plaintiff, then 15 years old, was injured in 2002 while playing a game with two friends, G and B, on property owned by thedefendants. His mother sought legal advice and informed him that he had a lawsuit against a "bunch of people". The plaintiff chose not topursue an action at that time. In August 2006, he issued a statement of claim against the defendants eight days before the expiry of a two-year limitation period after he reached the age of majority.

The defendants made a third party claim against G and B. In June 2009, theplaintiff brought a motion to amend the statement of claim to add G and B as party defendants. If his claim against G and B wasdiscoverable prior to January 1, 2004, the former Limitations Act, R.S.O. 1990, c. L.15 applied and he had six years from attaining theage of majority to add them as parties. If his claim was only discoverable when he attained the age of majority after January 1, 2004, atwo-year limitation [page379] period applied and he was out of time.

The master held that the plaintiff had not actually discovered hisclaim against G and B under s. 5(1)(

a) of the Limitations Act, 2002 and that as a minor, the plaintiff could not be deemed to havediscovered his claim pursuant to s. 5(1)(b). The motion was dismissed. The Divisional Court upheld that decision. The plaintiff appealed. Held, the appeal should be allowed. The finding that the plaintiff did not have actual knowledge of the claim before January 1, 2004 was based on an incorrect view of thelaw. Knowledge of legal consequences that flowed from known facts was not required in order for actual knowledge to exist.

Theplaintiff could have had actual knowledge without having had the benefit of the legal analysis that might have identified for him thepotential liability of various potential defendants.

Section 8 of the Limitations Act, 2002 should not be interpreted as providing that s. 5(1)(

b) of the Act can only apply to a minor if alitigation guardian has been appointed to represent the minor. It was an error of law not to have addressed whether the claim wasdiscoverable by a reasonable person with the plaintiff's abilities and in his circumstances. APPEAL from the order of Polowin J., sitting as a single justice of the Divisional Court, [2011] O.J. No. 1848, 2011 ONSC 2282, 277O.A.C. 291 (Div. Ct.) affirming the decision of a master dismissing a motion to add parties. [page380] Cases referred toAlexis v. Toronto Police Service Board (2009), 100 O.R. (3d) 232, [2009] O.J.

No. 5170, 2009 ONCA 847, 259 O.A.C.148, 79 C.P.C. (6th) 10; Ball v. Amendola, [2009] O.J. No. 4114, (S.C.J.); Kowal v. Shyiak, [2012] O.J. No. 3420,2012 ONCA 512, 13 C.L.R. (4th) 7; Murphy v. Welsh, (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, 106 D.L.R.(4th) 404, 156 N.R. 263, 65 O.A.C. 103, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1, 42 A.C.W.S. (3d) 509; Placzek v.Green, [2009] O.J. No. 326, 2009 ONCA 83, 307 D.L.R. (4th) 441, 69 C.P.C. (6th) 42, 245 O.A.C. 220; Serban Estate (Re), [2009] O.J.No. 620, 48 E.T.R. (3d) 78, 2009 CarswellOnt 797 (S.C.J.); St. Jean (Litigation guardian of) v.

Cheung (2008), 94 O.R. (3d) 359, [2008]O.J. No. 4862, 2008 ONCA 815, 244 O.A.C. 160, 304 D.L.R. (4th) 619, 172 A.C.W.S. (3d) 1051, consd Other cases referred toDuchesne v. St-Denis, [2009] O.J. No. 2999, 179 A.C.W.S. (3d) 446 (S.C.J.); Macksoud (Litigation guardian of) v. Carroll (2011), 104O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108, 278 O.A.C. 38, 11 C.P.C. (7th) 190; Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J.

No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d)147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Philion (Litigation guardian of) v. Lemieux Estate (2007), 85 O.R.(3d) 1, [2007] O.J. No. 1405, 2007 ONCA 281, 223 O.A.C. 267, 46 C.P.C. (6th) 203, 156 A.C.W.S. (3d) 916 Statutes referred toHighway Traffic Act, R.S.O. 1980, c. 198, s. 180 Limitations Act, R.S.O. 1990, c. L.15, s. 47 Limitations Act, 2002, S.O. 2002, c. 24,Sch.

B [as am.], ss. 4, 5 [as am.], (1)(a), (iii), (iv), (b), 6, 8, 9, 19 [as am.], 24 [as am.], (2), (5) [as am.], para. 2 Negligence Act, R.S.O.1990, c. N.1 [as am.] Joseph Y. Obagi and Elizabeth A. Quigley, for appellant. Pat C. Peloso, for respondent. The judgment of the court was delivered by [1] MACKINNON J. (ad hoc): -- The Limitations Act, 2002, S.O. 2002, c. 24, Sch. B came into force on January 1, 2004. The overallquestion raised by this appeal is whether the minor appellant's claim was discovered or discoverable by a reasonable person with hisabilities and, in his circumstances, prior to January 1, 2004.

Background [2] On June 23, 2002, the appellant, then age 15 (born September 5, 1986), and his two friends, Steve Gauvreau and Jean-Marc Bedard,were invited to the home of Brian and Danielle St-Denis. While at the home, the appellant and his two friends commenced a game offootball. A boy standing outside of the pool area would throw the football into the pool area. One of the other boys would jump off thedeck and into the pool to catch the football in mid-flight.

[ 3 ] In an attempt to catch the ball in mid-flight, the appellant jumped off the deck and into the pool. He struck his head on some part of the swimming pool and suffered severe personal injuries as a result. [ 4 ] The appellant's mother sought legal advice regarding her son's injury and, in accordance with the legal advice she received, informed her son that he had a lawsuit against a "bunch of people". The appellant elected not to pursue an action in order to focus on his recovery. Eventually, he reconsidered and, on August 28, 2006, issued a statement of claim against the defendants St-Denis.

This was eight days before he turned 20 (eight days before the expiry of a two-year limitation period after he reached the age of majority). [ 5 ] The third parties, Gauvreau and Bedard, were later brought into the action by the defendants. It was not until June 2009 that the appellant brought a motion to amend the statement of claim to add the third parties as party defendants. [ 6 ] If the appellant's claim against Gauvreau and Bedard was discoverable prior to January 1 2004, the former Limitation Act, R.S.O. 1990, c.

L.15 applies and the appellant plaintiff had six years from attaining the age of majority to add them as parties. If, on the other hand, his claim was only discoverable when he attained the age of majority after January 1, 2004, a two-year limitation would apply and he is out of time. Master Beaudoin [page381] dismissed the appellant's motion [ [2009] O.J. No. 2999, 179 A.C.W.S. (3d) 446 (S.C.J.) ]. The appeal from the master to a single judge of the Divisional Court upheld the master's decision. [ 7 ] The appeal to this court requires us to engage in an exercise of statutory

interpretation and, as a result, the standard of review is correctness. [ 8 ] For the reasons that follow, I am of the opinion that both the master and the Divisional Court judge erred. The finding that the appellant did not have actual knowledge of the claim before January 1, 2004 was based on an incorrect view of the law. The question of whether the appellant's claim was discoverable was conflated with the issue of when a limitation period involving a minor starts to run. Having regard to the plain wording of s. 5(1)(

a) and (b), it was error of law not to have addressed whether the claim was discoverable by a reasonable person with the appellant's abilities and in his circumstances. As a result, I would allow the appeal and grant leave to add the third party defendants but leave the limitation issue and the question of whether the claim was discovered or discoverable before January 1, 2004 to the trial judge. The Relevant Provisions of the Limitations Act, 2002 [ 9 ] As frequent reference is made to various provisions of the Limitations Act, 2002 , those provisions are set out here: 4.

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 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). 6. The limitation period established by

section 4 does not run during any time in which the person with the claim, (

a) is a minor; and [page382] (

b) is not represented by a litigation guardian in relation to the claim. . . . . . 8. 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. . . . . . 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: 1. 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. 2. If the claim was discovered before January 1, 2004, the former limitation period applies. (Citations omitted) The Order Under Appeal [ 10 ] As indicated, Master Beaudoin held that the plaintiff had not actually discovered his claim against the third parties before January 1, 2004.

He concluded that the appellant was not aware of any acts or omissions on the part of Gauvreau or Bedard that caused or contributed to his injuries, nor was the appellant aware that a proceeding against either friend would be an appropriate means to a remedy. He found that the appellant only knew that he had been injured, who was present and that he may have claims against a [at para. 7] "bunch of people".

This did not, in the master's view, constitute knowledge of the material facts as required under common law or s. 5 of the Act. [ 11 ] The master also held that, as a minor, the appellant could not be deemed to have discovered his claim pursuant to s. 5(1)(

b) of the Act. Section 5(1)(

b) states that a claim will be considered discovered on the day that a reasonable person with the abilities and in the circumstances of the person with the claim first "ought to have known" of the claim. [ 12 ] On appeal, the Divisional Court agreed that knowledge of the material facts requires both knowledge of the specific person who caused the injury as well as knowledge that a proceeding against this person would be an appropriate means to seek remedy for damages. It held that it was reasonable for the master to have concluded that neither was known in this case.

[ 13 ] The Divisional Court also agreed with the master that a minor cannot be deemed to have discovered his or her claim under s. 5(1)(

b) because a minor is presumed not to know his or [page383] her rights and is protected during the period of disability. It held that to conclude otherwise would run contrary to the statutory protection afforded to minors without a litigation guardian. [ 14 ] In reaching their respective decisions, both the master and the Divisional Court questioned whether the drafters intended to use the term "reasonable adult" instead of the term "reasonable person" in s. 5(1)(b). Their conclusion would have the result that a minor is a person within s. 5(1)(

a) but not within s. 5(1)(b). The Approach to be Used [ 15 ] The first step in determining whether a claim that arose prior to January 1, 2004 is governed by the former or the current Act is to apply the transitional provisions in s. 24 of the Limitations Act, 2002 , beginning with s. 24(2) . It is only if the current Act applies that the question would arise as to the applicability of s. 8 : see Philion (Litigation guardian of) v. Lemieux Estate (2007), 85 O.R. (3d) 1, [2007] O.J.

No. 1405, 2007 ONCA 281 . [ 16 ] The language of s. 24 itself does not address the applicable limitation period by reference to the legal capacity of the plaintiff; rather, it uses the point in time when the claim was discovered. There is nothing in s. 24 to suggest that a minor can only discover a claim in the manner described in s. 5(1)(a) (actual knowledge) and not by means of deemed knowledge in s. 5(1)(b). When the statutory language is clear and unambiguous, there is no basis for the court to provide an

interpretation at odds with the actual language used by the drafters. When a statute uses the same word in different provisions, consistency favours applying the same meaning throughout. In St. Jean (Litigation guardian of) v. Cheung (2008), 94 O.R. (3d) 359, [2008] O.J. No. 4862, 2008 ONCA 815 , at para. 59 , the court stated: 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. [page384] [ 17 ] Nor is there any language in s. 5 or s. 9 that would justify ruling that a minor is a person for the purpose of s. 5(1)(

a) but not for the purpose of s. 5(1)(b). Actual Knowledge [ 18 ] The appellant submits that he was aware of all the material facts in support of his claim prior to January 1, 2004. There is no doubt that he was aware of the circumstances and could identify all of the people involved. It is conceded that prior to January 1, 2004, he knew 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"; and (

g) he decided not to pursue an action because he wanted to concentrate on his recovery. [ 19 ] Neither the appellant nor his mother deposed an affidavit in support of the motion. Transcripts of the appellant's examination for discovery and examination as a witness were in evidence. In his examination, the appellant admitted that even during 2004, he did not know that he had a case specifically against either Gauvreau or Bedard that would result in a damage award in his favour. He testified that he knew he had a case but not specifically against whom.

This admission was key to the determination that the appellant had not "discovered" his claim against these particular persons as required by s. 5(1)(a)(iii) and (iv) prior to the implementation of the Limitations Act, 2002 . [ 20 ] According to the Divisional Court, at paras. 44 and 45: It 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. [page385] I 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. [ 21 ] The Divisional Court also stated, at para. 47: A 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. [ 22 ] The Divisional Court referred to Placzek v. Green, [2009] O.J. No. 326, 2009 ONCA 83 , 307 D.L.R. (4th) 441 in support of its determination. Placzek had a unique factual background. It dealt with when

an act or omission occurs in the context of a proposed contribution and indemnity counterclaim under the Negligence Act, R.S.O. 1990, c. N.1 in relation to any judgment Ms. Placzek might obtain against Mr. Green.

[23] The issue before the court was whether the act or omission alleged by Mr. Green in his proposed counterclaim had occurred beforeor after January 1, 2004 as part of the determination of whether the transitional rules would apply. The court did not doubt that Mr.Green knew who he had a counterclaim against. Rather, the court held that a counterclaim for contribution and indemnity does not ariseuntil after the initial, underlying tort has crystallized.

In Placzek, this did not occur until after the Limitations Act, 2002 came into force.Read in full context, it is clear that the purpose of the reference in para. 41 to the acts or omissions, as required to be those of theproposed defendant, was to answer the submission of Mr. Green that since Ms.

Placzek's claim against him had arisen before January2004, s. 24(5), para. 2 applied and his counterclaim was not prescribed. [See Note 1 below] The point the court was making was that theacts or omissions described in s. 24(5) must be those of the proposed [page386] defendants (in Placzek, those in the proposedcounterclaim) and not defendants in some other action (in Placzek, those in the initial statement of claim). [24] The

interpretation given by the Divisional Court to Placzek is inconsistent with this court's decision in Alexis v. Toronto PoliceService Board (2009), 100 O.R. (3d) 232, [2009] O.J. No. 5170, 2009 ONCA 847. In Alexis, the court held that the absence of clearlegal advice as to the identity of a particular proposed defendant was not sufficient to delay the running of the limitation period. In thatcase, the plaintiff had been escorted by police officers to a hospital where she was admitted by a doctor as an involuntary patient for apsychiatric assessment.

She was released the next day having been found not to be a danger to herself. Shortly thereafter, she consulted alawyer who advised her that she had a strong case but that he would have to review the various hospital and police records before beingsure. In response to the submission that clear legal advice is required before a claim can be discovered, the court stated, at paras. 9 and11: I would not give effect to this submission.

Assuming, without deciding, that legal advice was required to fulfil this requirement, I notethat the appellant had obtained legal advice in December 2005 and re-attended the lawyer's office in February 2006 and several timesthereafter. This advice was received in excess of two years before the claim was issued. The appellant's evidence is that her counselconsistently expressed his opinion that she had a good case.

The fact that counsel advised her that he would have to review the varioushospital and police records before being sure does not, in my view, delay the start of the running of the limitation period. . . . . . As a result of being provided with the Form 42, the appellant knew or by due diligence could have ascertained the name of the physicianwho completed the form. The fact that Dr. Heiber's name as the physician who completed the form is difficult to read is no basis forsuggesting that the appellant did not know the identity of the physician or could not have discovered it with reasonable diligence.

All thatwas required was for the appellant to re-attend at the hospital to confirm the physician's name. [25] Similarly, in Ball v. Amendola, [2009] O.J. No. 4114, (S.C.J.), the court found that the plaintiff did have actualknowledge of the proposed added defendant, Dr. Pugh, and his involvement at the time the original statement of claim was issued. Atthat time, the plaintiff had medical records that clearly disclosed Dr. Pugh's identity. The court rejected the submission that it was notuntil later, when the plaintiff received an expert report identifying Dr.

Pugh's omission to conduct a particular test as potentially belowthe standard of care, that the limitation period should start to run. [page387] [26] The decision of the Court of Appeal in Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512 is more analogous to the instantcase. In Kowal, at paras. 18 and 19, the court held that: Certainty of a defendant's responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough tohave prima facie grounds to infer that the acts or omissions were caused by the party or parties identified. . . .

By August 31, 2007, and certainly by November 1, 2007, the respondents were familiar with all the material facts. They knew that theyhad contracted with both Giant Builders and Overall Plastering. They were aware who had done the work on their home.

They knewthey had suffered a loss and that the acts or omissions were caused by either the appellants, or the third parties, or both. [27] These cases support the proposition that the legal analysis or advice that would have enabled the appellant to sort through theliability of the various individuals involved in the activities leading to his injuries may not have been necessary in order for him to haveactual knowledge of his claim against the third parties.

His ability to have obtained that legal analysis prior to January 1, 2004 would berelevant to the different consideration of whether the claim was discovered under s. 5(1)(b). This was the inquiry in St. Jean and inMacksoud (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108. In St. Jean, the existenceof the doctors sought to be added was readily apparent in the hospital records. Had that plaintiff sought appropriate expert advice in atimely way, the proposed new defendants would have been identified from a review of the hospital records.

In Macksoud, the facts weresomewhat different; however, the court reached the same conclusion on discoverability, at para. 24: In this case, it appears that the claims were not necessarily discoverable just from a review of the records by a lay person as in St.

Jean.However, a reasonable person acting as litigation guardian, and in this case, acting for herself as well, would retain competent counselwho is expected to take whatever are the necessary steps in a potentially complex medical malpractice case to identify all the potentialdefendants against whom claims may be made, within the relevant limitation period. [28] It would also appear that the Divisional Court confused the reference to "proceeding" in s. 24(2), [See Note 2 below] which must bea proceeding with respect to the acts or omissions of the specific [page388] person, and "proceeding" as used in s. 5(1)(a)(iv).

There, theinquiry is directed to the nature of the loss or injury and whether its nature would warrant a legal proceeding. Although it was a thresholdcase, the facts in Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31 illustrate this distinction.Mr. Peixeiro knew he had suffered a back injury, but did not know he had herniated a disc in the accident, and did not sue because hethought his injuries were not serious enough to qualify for compensation in tort. The Supreme Court held that having regard to thestatutory threshold, the limitation period did not begin to run until Mr.

Peixeiro knew or could reasonably have known that the injury hesustained included the herniated disc. [29] Both the master and the Divisional Court erred in their

interpretation of previous decisions of this court relative to whetherknowledge of legal consequences that flow from known facts is required in order for actual knowledge to exist. Such knowledge mayassist in the acquisition of actual knowledge of a claim, but it is not a requirement. The appellant here could have had actual knowledgewithout having had the benefit of the legal analysis that might have identified for him the potential liability of various potential

defendants. [30] As the finding of the master, affirmed by the Divisional Court, that the appellant did not have actual knowledge of the claim beforeJanuary 1, 2004 was based upon an incorrect view of the law, that finding must be set aside. Deemed Knowledge [31] The Divisional Court made no determination of whether the minor's claim was "discoverable" pursuant to s. 5(1)(

b) of the Act.Rather, the Divisional Court stated, at para. 72: In my view, the Appellant's argument that the Appellant or a reasonable minor with the Appellant's abilities and in his circumstancesought to have known of the matters referred to in section 5(1)(a), runs contrary to the statutory protection afforded to minors (notrepresented by litigation guardians) and is contrary to the law. Minors are presumed not to know their rights and are protected duringtheir period of disability. Murphy v. Welsh, supra, is dispositive of the matter.

This has been recognized in other decisions and isreflected in the Limitations Act, 2002 itself. [32] The respondent adopts this view and submits that s. 8 of the Limitations Act, 2002 should be interpreted as providing that s. 5(1)(b)can only apply to a minor if a litigation guardian has been appointed to represent the minor. [page389] [33] I disagree. First, s. 8 only applies if a litigation guardian has been appointed. It does not apply if there is no litigation guardian, as isthe case here. [34] Second, the Divisional Court relied on St. Jean and Serban Estate (Re), [2009] O.J.

No. 620, 48 E.T.R. (3d) 78, 2009 CarswellOnt797 (S.C.J.) to conclude that only a litigation guardian can discover a claim for a minor. Neither case reached this conclusion. In St. Jean,there was a litigation guardian so the point did not arise. In Serban, the issue was whether the Office of the Children's Lawyer, whichsubsequently did become the minor's litigation guardian, could be deemed to have discovered the claim on behalf of the minor prior tothe date of its appointment.

The court decided that a litigation guardian cannot be deemed to have discovered a minor's claim prior tobeing appointed as litigation guardian. [35] The Divisional Court also relied on the Supreme Court of Canada decision in Murphy v. Welsh, (SCC), [1993] 2S.C.R. 1069, [1993] S.C.J.

No. 83, at p. 1080 S.C.R., where it noted minors and others under legal disability are presumed not to knowtheir rights and remedies and that it would be unfair to expect them to proceed diligently in relation to a limitation period because,"implicitly, diligence requires awareness of one's rights". [36] At that time, the suspension of limitation periods for minors set out in s. 47 of the Limitations Act had been found to be inapplicableto limitation periods contained in some other pieces of legislation.

In Murphy, this issue arose with respect to the limitation period in s.180 of the Highway Traffic Act, R.S.O. 1980, c. 198. The Court of Appeal had held that the specific Highway Traffic Act limitationperiod applied equally to minors and adults. That decision was overturned by the Supreme Court for the reasons set out above. [37] The Limitations Act, 2002 has expressly addressed this issue in ss. 6 and 19. [See Note 3 below] The legislature has provided for theprotection of minors in s. 6 by suspending the limitation period for minors (without litigation guardians).

Resort to policy to [page390]provide this protection is no longer necessary.

Section 6 also implicitly recognizes that minors can discover their claims prior to reachingthe age of majority. If they could not do so, the suspension of the running of the limitation period would not have been necessary. [38] Nor was the Divisional Court's concern warranted that application of s. 5 (1)(

b) to minors could, in non-transitional circumstances,decrease their limitation period. Where it is possible to show that a minor could have discovered his or her claim before reaching the ageof majority, it will also be possible to show that the minor (now an adult) could have discovered the claim on the day that he or shereached majority. Therefore, application of s. 5(1)(

b) to minors would never decrease their limitation period under the non- transitionalrules of the Act. [39] It may appear anomalous that application of the meaning of "discovered" in s. 5 may, in some circumstances under the transitionalrules, extend rather than shorten a plaintiff's limitation period. This is the result of the clear language used by the drafters and reflectstheir balancing of the rights of plaintiffs and defendants in transitional circumstances. A result is that, in some circumstances, a plaintiffwill benefit from the former, longer limitation period.

There is no policy justification to limit that benefit, where it is available, only toadult plaintiffs. [40] For these reasons, it was an error in law not to have addressed whether the claim was discoverable by a reasonable person with theappellant's abilities and in his circumstances. Disposition [41] I would allow the appeal and set aside the order of the Divisional Court dated June 23, 2011. I would grant the appellant leave toserve and file a fresh statement of claim adding the third party Steve Gauvreau as a defendant (the action against Jean-Marc Bedard hasbeen settled).

I would leave the limitation issue and the question of whether the claim was discovered or discoverable to be determinedby the trial judge. I would award costs to the plaintiff throughout, in the amount of $15,000 for fees in relation to each of the motion, theDivisional Court appeal and this appeal, plus disbursements and applicable taxes in the all-inclusive total amount of $56,005. Appeal allowed.

Notes ---------------- Note 1: Placzek, at para. 39: "Second, in my opinion, the term 'acts or omissions' in s. 24(2) refers to acts or omissions of a defendant.Further, in the context of a contribution and indemnity claim, this must mean the defendant's failure to discharge his or her fair share ofan injured party's claim before the contribution and indemnity claimant's liability to the injured party for a disproportionate share of theinjured party's damages has crystallized."

Note 2: This

section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date. Note 3: 19(1) A limitation period set out in or under another Act that applies to a claim to which this Act applies is of no effect unless, (

a) the provision establishing it is listed in the

Schedule to this Act; or (

b) the provision establishing it, (

i) is in existence on January 1, 2004, and (ii) incorporates by reference a provision listed in the

Schedule to this Act. ----------------