



COURT OF APPEAL FOR ONTARIO

CITATION: Duchesne v. St-Denis, 2012
    ONCA 699

DATE: 20121017

DOCKET: C54652

Weiler and Sharpe JJ.A., and Mackinnon J. (
ad
    hoc
)

BETWEEN

Eric Duchesne

Plaintiff (Appellant)

and

Brian Marcel St-Denis and Danielle Lise Menard
    St-Denis

Defendants

and

Steve Gauvreau
and Jean-Marc Bedard

Third Parties (
Respondent
)

Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant

Pat C. Peloso, for the respondent

Heard: September 4, 2012

On appeal from the order of Justice Heidi S. Levenson
    Polowin sitting as a single justice of the Divisional Court, dated June 23,
    2011, with reasons reported at 2011 ONSC 2282,  277 O.A.C. 291.

Mackinnon
    J. (
ad hoc
):

[1]

The
Limitations Act, 2002,
S.O. 2002, c. 24, came into force on
    January 1, 2004.  The overall question raised by this appeal is whether the
    minor appellants claim was discovered or discoverable by a reasonable person
    with his abilities and, in his circumstances, prior to January 1, 2004.

Background

[2]

On June 23, 2002, the appellant, then age 15 (born September 5, 1986),
    and his two friends, Steve Gauvreau and Jean-Marc Bedard, were invited to the
    home of Brian and Danielle St-Denis.  While at the home, the appellant and his
    two friends commenced a game of football.  A boy standing outside of the pool
    area would throw the football into the pool area.  One of the other boys would
    jump off the deck and into the pool to catch the football in mid-flight.

[3]

In an attempt to catch the ball in mid-flight, the appellant jumped off
    the deck and into the pool.  He struck his head on some part of the swimming
    pool and suffered severe personal injuries as a result.

[4]

The appellants mother sought legal advice regarding her sons injury
    and, in accordance with the legal advice she received, informed her son that he
    had a lawsuit against a bunch of people.  The appellant elected not to pursue
    an action in order to focus on his recovery.  Eventually, he reconsidered and on
    August 28, 2006, issued a Statement of Claim against the defendants St-Denis.  This
    was eight days before he turned 20 (eight days before the expiry of a two year
    limitation period after he reached the age of majority).

[5]

The third parties, Gauvreau and Bedard, were later brought into the
    action by the defendants.  It was not until June 2009 that the appellant
    brought a motion to amend the Statement of Claim to add the third parties as
    party defendants.

[6]

If the appellants claim against Gauvreau and Bedard was discoverable
    prior to January 1 2004, the former
Limitation Act
applies and the
    appellant plaintiff had six years from attaining the age of majority to add
    them as parties.  If, on the other hand, his claim was only discoverable when
    he attained the age of majority after January 1, 2004, a two year limitation
    would apply and he is out of time.  Master Beaudoin dismissed the appellants
    motion.  The appeal from the Master to a single judge of the Divisional Court
    upheld the Masters decision.

[7]

The appeal to this court requires us to engage in an exercise of
    statutory interpretation and, as a result, the standard of review is
    correctness.

[8]

For the reasons that follow, I am of the opinion that both the Master
    and the Divisional Court judge erred.  The finding that the appellant did not
    have actual knowledge of the claim before January 1, 2004 was based on an
    incorrect view of the law.  The question of whether the appellants claim was
    discoverable was conflated with the issue of when a limitation period involving
    a minor starts to run.  Having regard to the plain wording of s. 5(1)(a) and
    (b), it was error of law not to have addressed whether the claim was
    discoverable by a reasonable person with the appellants abilities and in his
    circumstances.  As a result, I would allow the appeal and grant leave to add
    the third party defendants but leave the limitation issue and the question of
    whether the claim was discovered or discoverable before January 1, 2004 to the
    trial judge.

The Relevant Provisions of the
Limitations Act, 2002

[9]

As frequent reference is made to various provisions of the
Limitations
    Act
,
2002
, those provisions are set out here:

4.  Unless this Act provides otherwise, a
    proceeding shall not be commenced in respect of a claim after the second
    anniversary of the day on which the claim was discovered.

5.  (1) A claim is
    discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).

6.  The limitation period established by section 4 does
    not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in
    relation to the claim.

8.  If a person is represented by a litigation guardian
    in relation to the claim, section 5 applies as if the litigation guardian were
    the person with the claim.

24.

(5)  If the former limitation period did
    not expire before January 1, 2004 and if a limitation period under this Act
    would apply were the claim based on an act or omission that took place on or
    after that date, the following rules apply:

1. If the claim was not discovered before January 1,
    2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1,
    2004, the former limitation period applies. [Citations omitted.]

The Order Under Appeal

[10]

As
    indicated, Master Beaudoin held that the plaintiff had not actually discovered
    his claim against the third parties before January 1, 2004.  He concluded that
    the appellant was not aware of any acts or omissions on the part of Gauvreau or
    Bedard that caused or contributed to his injuries, nor was the appellant aware
    that a proceeding against either friend would be an appropriate means to a
    remedy.  He found that the appellant only knew that he had been injured, who
    was present, and that he may have claims against a bunch of people.  This did
    not, in the Masters view, constitute knowledge of the material facts as required
    under common law or s. 5 of the
Act.

[11]

The
    Master also held that, as a minor, the appellant could not be deemed to have
    discovered his claim pursuant to s. 5(1)(b) of the
Act
.  Section 5(1)(b)
    states that a claim will be considered discovered on the day that a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have known of the claim.

[12]

On
    appeal, the Divisional Court agreed that knowledge of the material facts
    requires both knowledge of the specific person who caused the injury as well as
    knowledge that a proceeding against this person would be an appropriate means
    to seek remedy for damages.  It held that it was reasonable for the Master to
    have concluded that neither was known in this case.

[13]

The
    Divisional Court also agreed with the Master that a minor cannot be deemed to
    have discovered his or her claim under s. 5(1)(b) because a minor is presumed
    not to know his or her rights and is protected during the period of
    disability.  It held that to conclude otherwise would run contrary to the
    statutory protection afforded to minors without a litigation guardian.

[14]

In
    reaching their respective decisions, both the Master and the Divisional Court
    questioned whether the drafters intended to use the term reasonable adult
    instead of the term reasonable person in s. 5(1)(b).  Their conclusion would
    have the result that a minor is a person within s. 5(1)(a) but not within s. 5(1)(b).

The approach to be used

[15]

The
    first step in determining whether a claim that arose prior to January 1, 2004,
    is governed by the former or the current
Act

is to apply the
    transitional provisions in s. 24 of the
Limitations Act, 2002
,
    beginning with s. 24(2).  It is only if the current
Act
applies
    that the question would arise as to the applicability of s. 8:  see
Philion
    v. Lemieux Estate
, 2007 ONCA 281, 85 O.R. (3d) 1.

[16]

The
    language of s. 24 itself does not address the applicable limitation period by
    reference to the legal capacity of the plaintiff; rather, it uses the point in
    time when the claim was discovered.  There is nothing in s. 24 to suggest that
    a minor can only discover a claim in the manner described in s. 5(1)(a) (actual
    knowledge) and not by means of deemed knowledge in s. 5(1)(b).  When the
    statutory language is clear and unambiguous, there is no basis for the court to
    provide an interpretation at odds with the actual language used by the
    drafters.  When a statute uses the same word in different provisions,
    consistency favours applying the same meaning throughout.  In
St. Jean
v.
    Cheung
, 2008 ONCA 815, 94 O.R. (3d) 1, at para. 59, the court stated:

It was suggested that to interpret "discovered" by
    reference to ss. 5 and 8 for events that pre-date January 1, 2004, amounts to
    giving the legislation retroactive effect. I disagree. Interpreting the word
    "discovered" in that manner does not have the effect of deeming the
    law to be different from what it was prior to January 1, 2004. Rather, this
    approach enables the court to apply the word "discovered" in s. 24(5)
    in the manner intended by the legislature. It is a basic tenet of statutory
    interpretation that language in a piece of legislation is used consistently. As
    Ruth Sullivan states in
Sullivan on the Construction of Statutes
,
5th edition, at p. 361:
    "[I]t is assumed that language is used consistently, that tautology is
    avoided, that the provisions of an Act all fit together to form a coherent and
    workable scheme." (footnotes omitted) As the meaning of the word
    "discovered", for the purposes of the new Limitations Act is
    contained in s. 5, following this tenet of statutory construction, one would
    apply that same meaning to the word throughout the legislation.

[17]

Nor
    is there any language in s. 5 or s. 9 that would justify ruling that a minor is
    a person for the purpose of s. 5(1)(a) but not for the purpose of
    s. 5(1)(b).

Actual Knowledge

[18]

The
    appellant submits that he was aware of all the material facts in support of his
    claim prior to January 1, 2004.  There is no doubt that he was aware of the
    circumstances and could identify all of the people involved.  It is conceded
    that prior to January 1, 2004, he knew the following facts:

a)

he was playing a game of football with Gauvreau and Bedard;

b)

the game involved jumping into an above ground pool;

c)

he suffered a spinal injury while playing this game;

d)

the pool was located at the premises owned by the St-Denis;

e)

his mother sought legal advice;

f)

he was advised by her that he had a claim against "a bunch of
    people; and

g)

he decided not to pursue an action because he wanted to concentrate on
    his recovery.

[19]

Neither
    the appellant nor his mother deposed an affidavit in support of the motion. 
    Transcripts of the appellants examination for discovery and examination as a
    witness were in evidence.  In his examination, the appellant admitted that even
    during 2004, he did not know that he had a case specifically against either
    Gauvreau or Bedard that would result in a damage award in his favour.  He
    testified that he knew he had a case but not specifically against whom.  This
    admission was key to the determination that the appellant had not discovered
    his claim against these particular persons as required by s. 5(1)(a)(iii) and
    (iv) prior to the implementation of the
Limitations Act
, 2002
.

[20]

According
    to the Divisional Court
, at paras. 44 and 45:

It is also my view, contrary to the submission of the
    Appellant, that for the purpose of section 5, knowledge of the "material
    facts" requires more than knowledge of an accidental injury and the
    identities of the persons present. There must be knowledge that there is a
    claim against a person for which liability may attach. Further, section
    5(1)(iv) requires knowledge "that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it." Section 5(1)(iii) and section 5(1)(iv) require knowledge of a
    possible cause of action against specific persons.

I note in this regard that section
    24, which does not contain language referring to a particular person, has been
    interpreted as being defendant-specific. In
Placzek
,
supra
the Court of Appeal stated at paragraph 39
    that the term "acts or omissions" in section 24(2) refers to acts or
    omissions of a defendant. Further, at footnote 6 to paragraph 41, the Court of
    Appeal referred to
St-Jean, supra,
at paragraphs
    57-59 and noted that the Court had held it appropriate to refer to other
    sections of the new Act that describe the meaning of words. Paragraphs 57-59 of
St-Jean
are set out above.

[21]

The
    Divisional Court also stated at para. 47:

A plain reading of section 5 (1)(a) makes it clear that the act
    or omission at subparagraph (iii) must be that of a specific person. In
    addition, a "proceeding" at subparagraph (iv) must be interpreted in
    a manner consistent with section 5, and as such, a "proceeding" must
    be against a specific person. It would be inconsistent with the scheme of
    section 5, and the
Limitations
    Act, 2002,
for a "proceeding" to be interpreted without
    reference to the person against whom it is brought.

[22]

The
    Divisional Court referred to
Placzek v. Green
, 2009 ONCA 83, 307
    D.L.R. (4th) 441 in support of its determination.
Placzek
had a
    unique factual background.  It dealt with when an act or omission occurs in the
    context of a proposed contribution and indemnity
counterclaim
    under the
Negligence Act
, R.S.O. 1990, c. N.1,
in relation to any judgment Ms. Placzek might obtain
    against Mr. Green.

[23]

The
    issue before the court was whether the act or omission alleged by
    Mr. Green in his proposed counterclaim had occurred before or after January 1, 2004,
    as part of the determination of whether the transitional rules would apply.
The court did not doubt that Mr. Green knew who he had
    a counterclaim against.  Rather, the court held that a counterclaim for
    contribution and indemnity does not arise until
after the initial,
    underlying tort has crystallized.  In
Placzek
, this did not occur until
    after the
Limitations Act, 2002
came into force
.  Read in full context, it is clear that the purpose of the reference in
    para. 41 to the acts or omissions, as required to be those of the proposed
    defendant, was to answer the submission of Mr. Green that since Ms. Placzeks
    claim against him had arisen before January 2004, s. 24(5)(2) applied and his
    counterclaim was not prescribed.
[1]
The point the court was making was that the acts or omissions described in s.
    24(5) must be those of the proposed defendants (in
Placzek
, those in the proposed counterclaim) and not
    defendants in some other action (in
Placzek
, those in the initial Statement of Claim).

[24]

The
    interpretation given by the Divisional Court to
Placzek
is
    inconsistent with this courts decision in
Alexis v. Toronto Police Service
    Board
, 2009 ONCA 847, 100 O.R. (3d) 232.  In
Alexis
, the court
    held that the absence of clear legal advice as to the identity of a particular
    proposed defendant was not sufficient to delay the running of the limitation
    period.  In that case, the plaintiff had been escorted by police officers to a
    hospital where she was admitted by a doctor as an involuntary patient for a
    psychiatric assessment.  She was released the next day having been found not to
    be a danger to herself.  Shortly thereafter, she consulted a lawyer who advised
    her that she had a strong case but that he would have to review the various hospital
    and police records before being sure.  In response to the submission that clear
    legal advice is required before a claim can be discovered, the court stated, at
    paras. 9 and 11:


I would not give effect to this submission. Assuming, without
    deciding, that legal advice was required to fulfil this requirement, I note
    that the appellant had obtained legal advice in December 2005 and re-attended
    the lawyer's office in February 2006 and several times thereafter. This advice
    was received in excess of two years before the claim was issued. The
    appellant's evidence is that her counsel consistently expressed his opinion
    that she had a good case. The fact that counsel advised her that he would have
    to review the various hospital and police records before being sure does not,
    in my view, delay the start of the running of the limitation period.

...

As a result of being provided with
    the Form 42, the appellant knew or
by
due
    diligence could have ascertained the name of the physician who completed the
    form. The fact that Dr. Heiber's name as the physician who completed the form
    is difficult to read is no basis for suggesting that the appellant did not know
    the identity of the physician or could not have discovered it with reasonable
    diligence. All that was required was for the appellant to re-attend at the
    hospital to confirm the physician's name.

[25]

Similarly,
    in
Ball v. Amendola
, 2009 CanLII 55309, (S.C.), the court found that
    the plaintiff did have actual knowledge of the proposed added defendant, Dr.
    Pugh, and his involvement at the time the original Statement of Claim was
    issued.  At that time, the plaintiff had medical records that clearly disclosed
    Dr. Pughs identity.  The court rejected the submission that it was not
    until later, when the plaintiff received an expert report identifying Dr.
    Pughs omission to conduct a particular test as potentially below the standard
    of care that the limitation period should start to run.

[26]

The
    decision of the Court of Appeal in
Kowal v. Shyiak
, 2012 ONCA 512, is
    more analogous to the instant case.  In
Kowal
, at paras. 18 and 19,
    the court held that:

Certainty of a defendant's responsibility for the act or
    omission that caused or contributed to the loss is not a requirement. It is
    enough to have
prima facie
grounds to infer that the acts or omissions
    were caused by the party or parties identified.  ...

By August 31, 2007, and certainly by November 1, 2007, the
    respondents were familiar with all the material facts. They knew that they had
    contracted with both Giant Builders and Overall Plastering. They were aware who
    had done the work on their home. They knew they had suffered a loss and that
    the acts or omissions were caused by either the appellants, or the third
    parties, or both.

[27]

These
    cases support the proposition that the legal analysis or advice that would have
    enabled the appellant to sort through the liability of the various individuals
    involved in the activities leading to his injuries may not have been necessary
    in order for him to have actual knowledge of his claim against the third
    parties.  His ability to have obtained that legal analysis prior to January 1,
    2004, would be relevant to the different consideration of whether the claim was
    discovered under s. 5(1)(b).  This was the inquiry in

St. Jean and in
    Macksoud v. Carroll
, 2011 ONCA 108, 104 O.R. (3d) 700.  In
St. Jean
,
    the existence of the doctors sought to be added was readily apparent in the
    hospital records.  Had that plaintiff sought appropriate expert advice in a
    timely way, the proposed new defendants would have been identified from a
    review of the hospital records.  In

Macksoud
, the facts were
    somewhat different; however the Court reached the same conclusion on discoverability
    at para. 24:

In this case, it appears that the claims were not necessarily
    discoverable just from a review of the records by a lay person as in
St.
    Jean
. However, a reasonable person acting as litigation guardian, and in
    this case, acting for herself as well, would retain competent counsel who is
    expected to take whatever are the necessary steps in a potentially complex
    medical malpractice case to identify all the potential defendants against whom
    claims may be made, within the relevant limitation period.

[28]

It
    would also appear that the Divisional Court confused the reference to
    proceeding in s. 24(2)
[2]
which must be a proceeding with respect to the acts or omissions of the
    specific person, and proceeding as used in s. 5(1)(a)(iv).  There the inquiry
    is directed to the nature of the loss or injury and whether its nature would
    warrant a legal proceeding.  Although it was a threshold case, the facts in
Peixeiro
    v. Haberman
, [1997] 3 S.C.R. 549 illustrate this distinction. 
    Mr. Peixeiro knew he had suffered a back injury, but did not know he had
    herniated a disc in the accident, and did not sue because he thought his
    injuries were not serious enough to qualify for compensation in tort.  The
    Supreme Court held that having regard to the statutory threshold, the
    limitation period did not begin to run until Mr. Peixeiro knew or could
    reasonably have known that the injury he sustained included the herniated disc.

[29]

Both
    the Master and the Divisional Court erred in their interpretation of previous
    decisions of this court relative to whether knowledge of legal consequences
    that flow from known facts is required in order for actual knowledge to exist. 
    Such knowledge may assist in the acquisition of actual knowledge of a claim,
    but it is not a requirement.  The appellant here could have had actual
    knowledge without having had the benefit of the legal analysis that might have identified
    for him the potential liability of various potential defendants.

[30]

As
    the finding of the Master, affirmed by the Divisional Court, that the appellant
    did not have actual knowledge of the claim before January 1, 2004 was based
    upon an incorrect view of the law, that findi
ng must be set
    aside.

Deemed Knowledge

[31]

The
    Divisional Court made no determination of whether the minors claim was discoverable
    pursuant to s. 5(1)(b) of the
Act
.  Rather, the Divisional Court stated
    at para. 72:

In my view, the Appellant's argument that the Appellant or a
    reasonable minor with the Appellant's abilities and in his circumstances ought
    to have known of the matters referred to in section 5(1)(a), runs contrary to
    the statutory protection afforded to minors (not represented by litigation
    guardians) and is contrary to the law. Minors are presumed not to know their
    rights and are protected during their period of disability.
Murphy v.
    Welsh, supra,
is dispositive of the matter. This has been recognized in other
    decisions and is reflected in the
Limitations Act, 2002
itself.

[32]

The
    respondent adopts this view and submits that s. 8 of the
Limitations Act,
    2002
should be interpreted as providing that s. 5(1)(b) can only apply to
    a minor if a litigation guardian has been appointed to represent the minor.

[33]

I
    disagree.  First, s. 8 only applies if a litigation guardian has been
    appointed.  It does not apply if there is no litigation guardian, as is the
    case here.

[34]

Second,
    the Divisional Court relied on
St. Jean
and
Serban Estate (Re)
,
    48 E.T.R. (3d) 78, 2009 CarswellOnt 797,

to
    conclude that only a litigation guardian can discover a claim for a minor.  Neither
    case reached this conclusion.  In
St. Jean
, there was a litigation
    guardian so the point did not arise.  In S
erban
, the issue was whether
    the Office of the Childrens Lawyer, which subsequently did become the minors
    litigation guardian, could be deemed to have discovered the claim on behalf of
    the minor prior to the date of its appointment.  The court decided that a
    litigation guardian cannot be deemed to have discovered a minors claim prior
    to being appointed as litigation guardian.

[35]

The
    Divisional Court also relied on the Supreme Court of Canada decision in
Murphy
    v. Welsh
, [1993] 2 S.C.R. 1069, at p. 1080, where it noted minors and
    others under legal disability are presumed not to know their rights and
    remedies and that it would be unfair to expect them to proceed diligently in
    relation to a limitation period because, implicitly, diligence requires
    awareness of ones rights.

[36]

At
    that time, the suspension of limitation periods for minors set out in s. 47 of
    the
Limitations Act
, R.S.O. 1990, c. L.15 had been found to be
    inapplicable to limitation periods contained in some other pieces of
    legislation.  In
Murphy
, this issue arose with respect to the
    limitation period in s.180 of the
Highway Traffic Act
,
R.S.O. 1980, c. 198.  The Court of
    Appeal had held that the specific
Highway Traffic Act

limitation
    period applied equally to minors and adults.  That decision was overturned by
    the Supreme Court for the reasons set out above.

[37]

The
Limitations Act, 2002
has expressly addressed this issue in sections 6
    and 19.
[3]
The legislature has provided for the protection of minors in s. 6 by
    suspending the limitation period for minors (without litigation guardians).  Resort
    to policy to provide this protection is no longer necessary.  Section 6 also
    implicitly recognizes that minors can discover their claims prior to reaching
    the age of majority.  If they could not do so, the suspension of the running of
    the limitation period would not have been necessary.

[38]

Nor
    was the Divisional Courts concern warranted that application of s. 5 (1)(b)
    to minors could, in non-transitional circumstances, decrease their limitation
    period.  Where it is possible to show that a minor could have discovered his or
    her claim before reaching the age of majority, it will also be possible to show
    that the minor (now an adult) could have discovered the claim on the day that
    he or she reached majority.  Therefore, application of s. 5(1)(b) to minors
    would never decrease their limitation period under the non-transitional rules
    of the
Act
.

[39]

It
    may appear anomalous that application of the meaning of discovered in s. 5
    may, in some circumstances under the transitional rules, extend rather than
    shorten a plaintiffs limitation period.  This is the result of the clear
    language used by the drafters and reflects their balancing of the rights of
    plaintiffs and defendants in transitional circumstances.  A result is that, in
    some circumstances, a plaintiff will benefit from the former, longer limitation
    period.  There is no policy justification to limit that benefit, where it is available,
    only to adult plaintiffs.

[40]

For
    these reasons, it was an error in law not to have addressed whether the claim
    was discoverable by a reasonable person with the appellants abilities and in
    his circumstances.

Disposition

[41]

I
    would allow the appeal and set aside the order of the Divisional Court dated
    June 23, 2011.  I would grant the appellant leave to serve and file a
    Fresh Statement of Claim adding the third party, Steve Gauvreau, as a defendant
    (the action against Jean-Marc Bedard has been settled).  I would leave the
    limitation issue and the question of whether the claim was discovered or
    discoverable to be determined by the trial judge.  I would award costs to the
    plaintiff throughout, in the amount of $15,000.00 for fees in relation to each
    of the motion, the Divisional Court appeal and this appeal, plus disbursements
    and applicable taxes in the all inclusive total amount of $56,005.00.

Released: October 17, 2012 (R.J.S.)

J. Mackinnon J. (
ad hoc
)

I agree K.M. Weiler J.A.

I agree Robert J. Sharpe
    J.A.





[1]
Placzek
,

at para.
    39:

Second,
    in my opinion, the term "acts or omissions" in s. 24(2) refers to
    acts or omissions of a defendant. Further, in the context of a contribution and
    indemnity claim, this must mean the defendant's failure to discharge his or her
    fair share of an injured party's claim before the contribution and indemnity
    claimant's liability to the injured party for a disproportionate share of the
    injured party's damages has crystallized.



[2]

This section applies to claims based on acts or
    omissions that took place before January 1, 2004 and in respect of which no
    proceeding has been commenced before that date.



[3]
19.  (1)  A limitation period set out in or under
    another Act that applies to a claim to which this Act applies is of no effect
    unless,

(a) the provision establishing it is
    listed in the Schedule to this Act; or

(b) the provision establishing it,

(i) is in existence on January
    1, 2004, and

(ii) incorporates by reference
    a provision listed in the Schedule to this Act. 2002, c. 24,                            Sched. B,
    s. 19 (1); 2008, c. 19, Sched. L, s. 3.


