Samuel Beswick, ‘Error of Law: An Exception to the Discoverability Principle?’

Limitation statutes can become instruments of injustice when they foreclose civil recourse before plaintiffs could reasonably discover their injury. For this reason, reform has swept Canadian provinces to align the commencement of limitation with plaintiffs’ ‘discoverability’ of their claims. Canadian common law nevertheless maintains that ‘[d]iscoverability refers to facts, not law. Error or ignorance of the law, or uncertainty of the law, does not postpone any limitation period’: Hill v Alberta (1993) 100 DLR (4th) 331, §9. The effect of this exception is that limitation periods are not tolled on account of mistake of law, misjudgments of legal rights or practice, the overruling of precedent, or judicial declarations of void or unconstitutional legislation. A plaintiff’s cause of action in such cases will generally accrue when she suffers loss or damage, not when she discovers her error of law. Canada’s discoverability exception is a problematic doctrine …

Beswick, Samuel, Error of Law: An Exception to the Discoverability Principle? (August 2, 2018).

First posted 2019-03-22 07:17:25

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