Name of defendant does not delay discoverability of cause of action

Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545, released today, sets out the useful principle that discoverability is not postponed until the particular name of a potential defendant is known.  The Court writes:

[18]          On the second ground of appeal, the appellants submit that the name of the property owner and the name of the company responsible for winter maintenance services were essential elements of the cause of action and the time did not run until the appellants knew these names or by the exercise of reasonable diligence could ascertain them.  The appellants rely on the following statement of Borins J.A. in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.) at p. 170:

While it is true that many of the cases in which it [the discoverability rule] has been applied concern a plaintiff’s discovery of the extent of an injury or the delayed effect or result of a defendant’s negligence, this case concerns the discovery of a tortfeasor.  The discovery of a tortfeasor involves more than the identity of one who may be liable.  It involves the discovery of his or her acts or omissions, which constitute liability.

In my view, counsel for the appellants states the rule too broadly and the above statement from Aguonie does not go as far as he suggests.  The proposition of the appellants, taken literally, would mean that in every motor vehicle accident when the ownership of the defendant’s vehicle was not immediately known, the limitation period would be extended until such time as a routine search of the motor vehicle register could be made.  Thus, the limitation period would not commence on the date of the accident but on the date that the routine motor vehicle search revealed the owner’s name.  This defies common sense and is not what the discoverability rule is intended to accomplish.  As has been said by this court in Zapfe at para. 19:

The discoverability principle is an interpretive tool of general application which guides the interpretation of limitation statutes.  Consideration of whether it applies in any given case is concerned with balancing fairness for both the plaintiff and the proposed defendant.