Limitation Periods

The firm has just completed two mandates raising the issue of limitation periods which may bar a legal proceeding before it is commenced. One common issue arose in both matters: “discoverability” of the cause of action, which triggers the running of the limitation period. The test of discoverability raises an objective, rather than subjective, test because it asks: when ought the plaintiff, having regard to all the circumstances, to have realized that a legal claim had arisen? From that date, the limitation time period commences to run. A careful marshalling and review of the evidence on this issue is required. The court will hold a party to the standard of reasonableness; whereas a mere possibility of discovery of the cause of action imposes too high a standard on a plaintiff.