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Class Actions (Ont) - Limitations

. Levac v. James

In Levac v. James (Ont CA, 2023) the Court of Appeal considered aspects of limitations discoverability unique to class actions:
[105] Under s. 5 of the Limitations Act, 2002, a claim is discovered on the earlier of the date when the plaintiff knew or ought to have known that an incident occurred that resulted in a loss (s. 5(1)(a)(i)), that the defendant did or failed to do something to cause that loss (s. 5(1)(a)(ii) and (iii)), and that, having regard to the nature of the injury, loss, or damage, a court proceeding is an appropriate means to seek a remedy (s. 5(1)(a)(iv)): Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, 16 C.C.L.I. (6th) 289, at para. 34. A plaintiff need not know the exact act or omission by the defendant that caused the loss, but rather must have knowledge of the material facts upon which a “plausible inference of liability” can be drawn: Gordon Dunk Farms, at paras. 30-36, citing Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at para. 42.

[106] Because discoverability involves an inquiry into the individual claimant’s state of knowledge, courts have generally been hesitant to certify common limitations issues in class proceedings. Where such an issue is certified, as in this case, the plaintiff must prove that no class member knew or ought to have known the material facts in issue prior to the presumptive discovery date. As this court stated in Smith v. Inco Limited, 2011 ONCA 628, 107 O.R. (3d) 321, at para. 164:
If, as the trial judge found in this case, the evidence does not establish that all class members were not aware of and ought not to have been aware of the material facts, then the application of the [Limitations Act, R.S.O. 1990, c. L.15] to the claims is an individual and not a common issue. It is an error to treat the limitation period as running from the date when a majority, even an overwhelming majority, of the class members knew or ought to have known the material facts in issue. [Emphasis added.]
[107] In this case, I accept that it was open to the trial judge to find that material facts grounding both the claims in negligence and breach of fiduciary duty were not discoverable by any Class Member prior to the TPH investigation. In the unique circumstances of a disease outbreak where liability is based not on a single infection but on a group of infections far exceeding the expected rate, which was itself evidence of a systemic failure to follow appropriate IPAC and to investigate, report, and remediate infections, this information was necessary to discover the claims.

[108] As the trial judge found that Dr. James did not report any of the infections, his concealment of material facts resulted in a lack of actual or objective knowledge by Class Members of the elements set out in s. 5(1)(a), preventing discovery until the date the concealed facts were revealed: Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 72.


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