Discoverability principle

A buyer who finds a hidden problem after closing asks when the deadline began. Under this principle the basic period runs from discovery of the claim rather than from the act behind it. This entry covers Ontario, British Columbia and Alberta only; check the rules where you are.

How the three Acts test it

• Ontario (s. 5): a claim is discovered on the earlier of the day the claimant first knew four listed matters and the day a reasonable person with the claimant’s abilities and in their circumstances ought to have known them. The claimant is presumed to have known on the day of the act or omission unless the contrary is proved (s. 5(2)).
• British Columbia (s. 8): a claim is discovered on the first day the person knew or reasonably ought to have known four listed matters, except for the special situations referred to in ss. 9 to 11.
• Alberta (s. 3(1)): subject to ss. 3(1.1), 3(1.2), 3.1, 3.2 and 11, the discovery-based period runs from when the claimant first knew, or in the circumstances ought to have known, that the injury occurred, that it was attributable to the defendant’s conduct and that, assuming liability on the defendant’s part, it warrants bringing a proceeding. An outer period runs from when the claim arose, whichever expires first, and the defendant must plead the Act as a defence.

What to ask

Ask which province’s law governs, what the claimant knew and when, and whether the outer limit is close. The outer limit is covered in the ultimate limitation period, and whether a purchase agreement can change the deadline is a separate question.