Fridays with Rogers Partners

At our weekly meeting, Amanda Chiu discussed the recent decision of the Ontario Court of Appeal in Lloyd v. Baker, 2026 ONCA 434. The decision provides important guidance on the discoverability of claims under the Limitations Act, 2002 in motor vehicle personal injury actions.

Facts and Procedural History

The respondent, Ms. Lloyd, sustained a concussion in a motor vehicle accident on November 24, 2015, aggravating a prior workplace concussion. Although she expected to recover, her symptoms persisted for years and prevented her from returning to full-time work.

Ms. Lloyd commenced an action in November 2021, and the appellant, Mr. Baker, brought a summary judgment motion arguing the claim was statute barred. The motion judge dismissed the motion, finding that the respondent discovered her claim in July 2020 when she learned from a neuropsychologist that her injuries were permanent and likely met the Insurance Act threshold. The Court of Appeal considered whether the claim was discovered, or reasonably ought to have been discovered, more than two years before the action was commenced.

Analysis 

The Court of Appeal held that the motion judge failed to properly apply the objective discoverability test under ss. 5(1)(b) and 5(2) of the Limitations Act, 2002. While s. 5(2) presumes discovery on the accident date unless rebutted, s. 5(1)(b) asks when a reasonable person in the claimant’s circumstances ought to have discovered the claim. In Sanei v. Debarros, 2024 ONCA 104, and Fennell v. Deol, 2016 ONCA 249, the Court confirmed that this is an objective, due diligence-based inquiry. The concern on appeal was that the motion judge focused too heavily on when the respondent believed her injuries were permanent, rather than when a reasonable person in her circumstances ought to have discovered the claim.

The Court reaffirmed in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), that a claim is discoverable once it is “reasonably discoverable that the injury meets the threshold,” not when the claimant has full knowledge or expert confirmation. Similarly, Andrews v. Pattison, 2022 ONCA 267, confirms that the Limitations Act, 2002 “does not distinguish between meritorious and non-meritorious claims,” so certainty of success is unnecessary.

Applying that framework, the Court found that the respondent’s persistent symptoms, medical advice in 2016 that she might never return to baseline, and further opinions in 2018 that recovery was unlikely were sufficient to trigger discoverability. The July 2020 neuropsychological assessment was not a new diagnosis or material change. As explained in Yasmin v. Alexander, 2016 ONCA 165, delayed discovery without a change in condition may reflect a failure to make reasonable inquiries. Accordingly, the claim was discoverable more than two years before the action was commenced.

Conclusion and Takeaways

The Court of Appeal allowed the appeal and dismissed the respondent’s action as statute barred. The decision reinforces that discoverability is assessed objectively and that claimants cannot necessarily delay limitation periods by waiting for definitive expert confirmation where the surrounding evidence already indicates the need to act. Put simply, the clock starts when the evidence calls for action, not when certainty finally arrives.