The plaintiff brought a small claims action against the defendant excavation contractor for damages relating to allegations of negligent design, installation, approval, and inspection of a septic system. The trial judge dismissed the action on the ground that it was statute barred by operation of the Limitations Act, 2002. The trial judge found that a reasonable person would have discovered the claim by a date more than three years before the claim was commenced and reasoned that having made this finding, he was not required to consider when a proceeding was an appropriate means to remedy the claim. The Divisional Court upheld the trial judge’s holding. The defendant appealed. The central issue on appeal was whether the courts below failed to conduct a proper analysis as to when the plaintiffs knew or ought to have known that a legal proceeding would be an appropriate means to remedy their alleged losses. The Court of Appeal noted that it had repeatedly held that consideration of when a proceeding was an appropriate means to remedy a claim is an essential element of the discoverability analysis and held that the Small Claims Court and Divisional Court erred in failing to do so. The Court of Appeal went on to hold that in the circumstances the plaintiffs did not know, and a person in their situation would not reasonably have known, that a proceeding was an appropriate means to remedy their losses until at earliest a date less than two years before the claim was commenced. Therefore, the action was not stature barred and it was remitted back to the Small Claims Court for determination on its merits.
