The Limitation Clock Does Not Wait for a Legal Opinion
Two recent decisions from the Court of Appeal for Ontario deliver the same practical warning: discoverability generally turns on the material facts, not on when a claimant obtains legal advice or develops a stronger theory of the case.
Legal Advice is Not a New Material Fact
In Wiebe v. Johnson & Johnson Inc., 2026 ONCA 597 (“Wiebe”), three appellants, who were the plaintiffs in the underlying product-liability actions, brought claims involving surgical mesh. They argued that their claims were not discoverable until they consulted counsel, learned the manufacturer’s identity and were advised that the products might be defective. The Court rejected that position - both on the motion for summary judgment and at the Court of Appeal holding that the appellants knew that they had experienced complications, that the mesh had been removed and that the manufacturer could be identified through available medical records: Wiebe, at paras. 3–5.
The Court of Appeal held that reasonable diligence could have supplied the remaining information shortly after the revision surgeries and that the appellants did not need counsel’s opinion that the mesh might be defective before commencing their claims Wiebe, at paras. 23–27.
At paragraph 35, the Court captured their central point:
“Simply being advised by a lawyer that a claim is appropriate cannot, without more, constitute a “material fact” that a plaintiff must know before the limitation begins to run. If this were so, virtually all limitation periods would not be triggered until legal advice was sought and obtained. This cannot be the law.”
Seeing a later advertisement and receiving legal advice about the viability of litigation did not create new facts or restart the limitation period: Wiebe, at para. 36.
An Agent’s Knowledge May Be the Client’s Knowledge
The Court of Appeal applied a similarly strict approach in Toronto Standard Condominium Corporation No. 2587 v. Rock Contracting Services & Management Inc., 2026 ONCA 602 (“TSCC 2587”). The condominium corporation’s property manager knew about the property damage when it occurred. Because the property manager was acting as the corporation’s agent, that knowledge was attributed to the corporation: TSCC 2587, at paras. 5–8.
The corporation also failed to provide evidence from the individuals who knew about the damage on the relevant date. Without that evidence, it could not rebut the presumption under s. 5(2) of the Limitations Act, 2002 that the claim was discovered when the underlying act occurred: TSCC 2587, at paras. 9-10.
The corporation argued that it did not confirm the subcontractor’s identity until several days later. The Court held that this did not save the claim. Even accepting that the name was initially unknown, there was no explanation for why the action was not commenced during the two years that followed: TSCC 2587, at paras. 11–12.
The Practical Lesson for Litigants
Together, the decisions confirm that a claimant does not need a completed investigation, perfect evidence or a favourable legal opinion before the limitation period begins.
At intake, counsel should determine:
what the client knew and when;
what was known by the client’s employees, property managers or other agents;
which records were reasonably available; and
whether those records could identify a proposed defendant or the material basis for the claim.
Where discoverability may become contentious, counsel should preserve evidence from the people with first-hand knowledge and calendar the earliest reasonably defensible discovery date. Waiting for stronger evidence or greater confidence in the claim may mean waiting too long.
Sources:
Wiebe v. Johnson & Johnson Inc., 2026 ONCA 597.
Toronto Standard Condominium Corporation No. 2587 v. Rock Contracting Services & Management Inc., 2026 ONCA 602
Limitations Act, 2002, SO 2002, c 24, Sch B.