Limitations Act - Discoverability - Appropriate Means - I [s.5(1)(a)(iv)]. Clarke v. Sun Life Assurance Company of Canada
In the long-term disability case of Clarke v. Sun Life Assurance Company of Canada (Ont CA, 2020) the Court of Appeal considered s.5(1)(a) sub-clause (iv) when ["a proceeding would be an appropriate means to seek to remedy it"]:
A proceeding would be an appropriate means. Sosnowski v. MacEwen Petroleum Inc.
 The motion judge next considered the issue of when a proceeding would be an appropriate means to remedy the loss, injury or damage: Limitations Act, 2002, ss. 5(1)(a)(iv) and (b). For the reasons that follow, I conclude that the motion judge failed to conduct the analysis required by the Act on this point.
 The discoverability analysis required by ss. 5(1) and (2) of the Act contains cumulative and comparative elements.
 Section 5(1)(a) identifies the four elements a court must examine cumulatively to determine when a claim was “discovered”. When considering the four s. 5(1)(a) elements, a court must make two findings of fact:
(i) The court must determine the “day on which the person with the claim first knew” all four of the elements. In making this first finding of fact, the court must have regard to the presumed date of knowledge established by s. 5(2): “A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved”; andArmed with those two findings of fact, s. 5(1) then requires the court to compare the two dates and states that a claim is discovered on the earlier of the two dates: see Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-35.
(ii) The court must also determine “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 four elements identified in s. 5(1)(a).
 Accordingly, as part of her cumulative and comparative discoverability analysis, the motion judge was required to determine (i) the day on which Ms. Clarke “first knew … that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it” (s. 5(1)(a)(iv)) and (ii) the day on which a reasonable person with the abilities and in the circumstances of Ms. Clarke first ought to have known of that matter (s. 5(1)(b)).
 The motion judge’s reasons disclose that she failed to make any specific finding about either date.
 Although the motion judge noted, at paras. 30(iii) and (iv), that Ms. Clarke’s three-year delay in providing additional medical information was “unexplained” and her evidence was “silent as to her knowledge, intentions or assumptions about the matter”, the motion judge was not prepared to draw any inferences from this absence of evidence. Read as a whole, her reasons disclose that she was not able to determine when Ms. Clarke first knew that a proceeding would be an appropriate means to seek to remedy her injury.
 In that circumstance, the motion judge was required to deal with s. 5(2) of the Act, which presumes that a person with a claim knows of the matters in s. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. Applying the presumption requires the court to assess whether the claimant had acted with due diligence in determining if she had a claim: Miaskowski v. Persaud, 2015 ONCA 758, 393 D.L.R. (4th) 237, at paras. 24-27. The motion judge did not deal with the s. 5(2) presumption or the related obligation of the insured to act with due diligence.
 Given the motion judge’s failure to make the requisite findings of fact in respect of ss. 5(1)(a)(iv), (b), and (2), her conclusion that Sun Life had not established the elements of a limitation defence under ss. 4 and 5 of the Act lacked an adequate legal and factual foundation. For that reason, her order must be set aside.
 I do not consider this to be an appropriate case to exercise this court’s fact-finding powers under Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4), in respect of ss. 5(1)(a)(iv), (b), and (2), including the issue of Ms. Clarke’s due diligence. No examinations for discovery or cross-examinations have been conducted in this proceeding. A fuller record is required to assess, for the purposes of the s. 5(1)(a)(iv) analysis, the significance of the informal appeal process offered by Sun Life and engaged by Ms. Clarke, including whether that process constituted an alternative process with a reasonably certain or ascertainable date on which it runs its course or is exhausted, as required by Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, at para. 48. Accordingly, the remaining issues related to the limitation period defence are more appropriately determined through some form of trial.
In Sosnowski v. MacEwen Petroleum Inc. (Ont CA, 2019) the Court of Appeal considered s.5(1)(a)(iv) of the Limitations Act ["appropriate means"]:
(i) The Limitations Act. Brown v. Baum
 In 1969, the Ontario Law Reform Commission in its Report on Limitation of Actions said the following about Ontario’s law of limitations at that time, at p. 7:
To the lawyer, Ontario’s limitation laws are, at the very least, perplexing. They introduce an element of hazard into the practice of law which is quite unnecessary. There was widespread acknowledgement in the civil bar even then that reform of Ontario’s limitations law was long overdue. The patchwork of various limitations and the lack of uniformity in how they were interpreted resulted in uncertainty both for the bar and the public. Over the course of the next 30 years, successive Ontario governments made efforts to reform the law. After many starts and stops, in 2002, the current Limitations Act was passed in the provincial legislature. It was heralded as a significant reform of the existing law of limitations. It was hoped that the new legislation would reduce the number of limitations-related motions and negligence claims against lawyers by bringing certainty and consistency to this area of the law.
To the ordinary citizen, these laws are beyond comprehension. It is he, of course, who really suffers in their application.
 Two of the most significant changes in the new Limitations Act were found in ss. 4 and 5. Section 4 introduced a new basic limitation period of two years:
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. In s. 5, the legislature attempted to codify the existing jurisprudence on the discoverability of claims and added a new factor to the discoverability analysis. That section reads as follows:
5 (1) A claim is discovered on the earlier of, The new factor was the appropriateness of bringing an action. It was not an element of the previous iteration of the Limitations Act or the common law discoverability rule. It is the interpretation of s. 5(1)(a)(iv) that is determinative of this appeal and to which I will next turn.
(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). [Emphasis added.]
(ii) Subsection 5(1)(a)(iv) Jurisprudence
 This court’s jurisprudence has developed certain principles for the interpretation and application of s. 5(1)(a)(iv).
 First, the determination of whether a proceeding is an appropriate means to seek to remedy an injury, loss, or damage depends upon the specific factual and/or statutory setting of each case: Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at para. 46.
 Second, this court has observed that two circumstances most often delay the date on which a claim is discovered under this subsection. The first is when the plaintiff relied on the defendant's superior knowledge and expertise, especially where the defendant took steps to ameliorate the loss. The other situation is where an alternative dispute resolution process offers an adequate remedy, and it has not been completed: Nasr, at para. 50.
 Third, Sharpe J.A. in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34, provided the following guidance concerning the meaning of the term "appropriate":
This brings me to the question of when it would be “appropriate” to bring a proceeding within the meaning of s. 5 (1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5 (1) (a)(iv) states that a claim is "discovered" only when "having a regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it," the word "appropriate" must mean legally appropriate. To give “appropriate” an evaluative gloss allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess the tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Emphasis in original.] In other words, appropriate means whether it is legally appropriate to bring an action. Appropriate does not include an evaluation of whether a civil proceeding will succeed.
 Winmill concerned an appellant who was involved in a physical altercation with the police. He was charged with assaulting a police officer and resisting arrest but was eventually acquitted of both charges. After his acquittals, the appellant issued a notice of action and then a statement of claim seeking damages for negligent investigation and battery.
 The respondents brought a motion for summary judgment to dismiss the appellant’s claim on the basis that it was commenced two years and one day after the police altercation, and thus he had missed the limitation period by one day. The motion judge found that the claim for negligent investigation began to run on the date the appellant was acquitted. However, she dismissed the claim for battery because the limitation period ran from the date of the altercation with the police.
 In Winmill, the majority of this court found that the appellant could not determine whether it was appropriate to bring an action until he knew the outcome of the criminal proceedings. The court stated at para. 33 that “the criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are very close to being two sides of the same coin or mirror images of each other.” Accordingly, the order dismissing the battery claim was set aside.
(iv) Application of Principles
 As noted, the determination of whether a civil proceeding is an appropriate means depends upon the specific factual and/or statutory setting of each case. In Winmill, the majority held that the civil claim and the criminal charges were two sides of the same coin. That finding was presumably made on the basis that the civil claim involved determining the appropriateness of the conduct of the police, who were also closely involved with the criminal charges. That makes Winmill distinguishable from the facts of the present case, where the police’s conduct is not the subject of the civil proceeding. In my view, therefore, the motion judge did not err in distinguishing Winmill. The issue that remains is whether the motion judge otherwise erred in her analysis of s. 5(1)(a)(iv).
 The appellant relies on 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, in support of his position. However, 407 ETR was an example of a case where an alternative administrative means of settling the dispute had not been completed. It has no application to the case at bar, where there is no alternative process. The appellant also relies on the following statement in Novak v. Bond, 1999 CanLII 685 (SCC),  1 S.C.R. 808, 63 B.C.L.R. (3d) 41, at para. 85:
Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely. [Citation omitted.] The factual and statutory context of that statement is important. Novak involved a situation where a doctor misdiagnosed a lump on the plaintiff as benign. It was later discovered that she had cancer. After undergoing surgery, it appeared that the cancer had been cured. The plaintiff considered suing her doctor at that point but decided instead to focus on her recovery and accept the diagnosis that she had fully recovered from cancer. Some years later, the cancer reoccurred, and she sued her original doctor.
 The case considered British Columbia’s limitations legislation. Subsection 6(4)(b) of that statute provided for the postponement of the limitation period until a properly advised reasonable person would consider that the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.” That, of course, is a very different provision than s. 5(1)(a)(iv). In my view, Novak does not assist the appellant because the British Columbia legislation explicitly permitted an evaluation of whether it was in the plaintiff’s interests to commence a proceeding.
 The appellant’s principal submission is that he should have been permitted to wait until the criminal proceedings concluded so that he could evaluate his chances of success in litigation. He argues that litigation is an expensive and risky proposition, and he should not have been forced to commence a civil proceeding until he knew that he had a chance of success. This argument, of course, is precisely what this court in Markel said a plaintiff is not permitted to do.
 If such an evaluative analysis could effectively stop the running of the limitation period, questions will necessarily follow regarding the nature of that analysis and the factors that could be considered. For example, is it open to a plaintiff to argue that he or she can await the outcome of a related discipline process in a professional negligence claim? May a potential plaintiff commence a claim many years after the events if there is a change in the law that increases his or her chances of success? If a critical witness goes missing and is later discovered, is it open to the plaintiff to assert that he or she did not know whether it was appropriate to bring an action until the witness was found?
 I cite these examples, not to suggest that they should succeed under the appropriate means provision, but to show how far that provision might be expanded once plaintiffs are permitted to evaluate the strength of their claim before being required to commence a proceeding. This approach would introduce a measure of uncertainty that is contrary to the legislature’s intention in enacting the current Limitations Act. It would, in effect, transport the law back to the same state of uncertainty that existed before the changes in the legislation in 2002.
In Brown v. Baum (Ont CA, 2016) the Court of Appeal addresses an important element of the general two-year limitations period commencement test, that of "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it" [s.5(1)(a)(iv)]. It was a medical malpractice case where the parties, after the cause of the injury was known, nonetheless engaged in reparative surgeries. The lawsuit was commenced more than two years after first knowledge of the injury and it's cause.
The court of appeal held held that the time use for repair attempts did not, in the circumstances of this case, count for the limitations calculation. The court stressed that application of this principle was very conditional on the circumstances of each such case, however in my opinion the case is useful to extend the running of the limitation period in any case where negotiation, mitigation or repair efforts are undertaken after injury and it's causation is known:
 The appellant [defendant] argued that the limitation period commenced either at the initial surgery in March 2009 or at the latest by July 2009, and that even if the respondent had wanted to refrain from commencing an action until she stopped seeing the appellant, there would have been time for her to have done so following the final consultation visit in June 2010. In other words, the respondent had two years to continue to be treated by Dr. Baum before she had to commence the action against him.. Clarke v Faust
 The motion judge rejected this submission, pointing out that the limitation period does not commence until the injured party first knows that an action is an appropriate remedy. Therefore, the issue was whether, during the period when her doctor was trying to fix the problems she felt that he had caused, she knew it was appropriate to sue him. In considering that issue, he referred to this court’s decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652, at para. 34, where Sharpe J.A. discussed the meaning of “appropriate” in the context of s. 5(1)(a)(iv):
… I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. The motion judge concluded that on the record in this case “[i]t would be unreasonable and inappropriate…to start the two-year limitation clock running against Ms. Brown while the defendant’s good faith efforts to achieve a medical remedy continued.” In so finding, he emphasized that he was not finding as a rule that the limitation period will not commence until the doctor-patient relationship ends in every case where the relationship is ongoing after the injury, loss or damage has occurred – only that it might not, depending on the facts and circumstances of each case.
 The motion judge’s application of the subsection to the facts on this record was particularly apt: he concluded that because the doctor was continuing to treat his patient to try to fix the problems that arose from the initial surgery, that is, to eliminate her damage, it would not have been appropriate for the patient to sue the doctor then, because he might well have been successful in correcting the complications and improving the outcome of the original surgery. On the evidence of Dr. Brown, the specialist who provided Ms. Brown with a second opinion, by September 2010, Dr. Baum in fact was successful in ameliorating Ms. Brown’s damage.
 Second, the appellant submits that the motion judge gave the term “appropriate” an “evaluative gloss” rather than applying the meaning of “legally appropriate”, contrary to this court’s decision in Markel. Again I do not agree. The motion judge was entitled to conclude on the facts of the case that Ms. Brown did not know that bringing an action against her doctor would be an appropriate means to remedy the injuries and damage she sustained following her breast reduction surgery until June 16 2010, after Dr. Baum performed the last surgery.
 Further, I am satisfied that the test in s. 5(1)(b) is met. A reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated.
 I would also add this observation: the Markel case involved insurance transfer payments and considerations of the appropriateness of possibly delaying the commencement of legal action in order to negotiate a settlement. The considerations for when it is appropriate for a patient to delay suing her doctor when that doctor is continuing to treat her are quite different. I certainly agree with the motion judge that there are many factual issues that will influence the outcome. The fact that a number of recent cases (for example, Tremain v. Muir (Litigation guardian of), 2014 ONSC 185 (CanLII), Chelli-Greco v. Rizk, 2015 ONSC 6963 (CanLII), Novello v. Glick, 2016 ONSC 975 (CanLII), 2016 ONSC 975 (Div. Ct.), and Barry v. Pye, 2014 ONSC 1937 (CanLII)) have considered this very issue with different outcomes is a testament to this approach.
 In my view, the motion judge made no error in his approach to this issue. He considered all of the relevant case law, and applied it to the facts. He was entitled to find that Ms. Brown did not know that it was appropriate to sue Dr. Baum until after the last surgery he performed to try to correct the complications and improve the outcome of the original surgery. As the motion judge observed, it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue.
In Clarke v Faust (Ont CA, 2016) the Court of Appeal addresses the interesting Limitations Act discoverability trigger that a person know that an action is the "appropriate means" to seek a remedy before the limitations starts to run [Limitations Act, s.5(1)(a)(iv)]:
 The motion judge was mistaken in her understanding of the Act. She failed to consider the requirement of s. 5(1)(a)(iv) that a person with a claim know that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage having regard to its nature. That provision requires, in my view, a person to have good reason to believe he or she has a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to seek to remedy the injury, loss or damage.. Unegbu v. WFG Securities of Canada Inc.
In Unegbu v. WFG Securities of Canada Inc. (Ont CA, 2016) the Court of Appeal commented as follows on the commencement of the running of a limitation period:
It is well-established that a lack of appreciation of the legal significance of the facts grounding a claim does not stop the limitation from running: Nicholas v. McCarthy Tetrault,  O.J. No. 4258 at para. 27, aff’d 2009 ONCA 692 (CanLII).