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The Ontario Court of Appeal’s (“ONCA”) decision in Wiebe v. Johnson & Johnson Inc.1 (“Wiebe”) provides important guidance on when the two-year limitation period begins running under Ontario’s Limitations Act, 2002.2
The Court confirmed that a plaintiff cannot postpone the running of the limitation period by failing to investigate a potential claim where the plaintiff knew, or through reasonable diligence ought to have known, the material facts underlying the claim. Subsequent legal advice that a viable claim exists does not constitute a new material fact that delays discoverability.
In this case, the Court held that a law firm’s advertisement or opinion that a product is defective and that litigation has merit does not constitute a “material fact” capable of restarting the clock.
Background
The claims were related to polypropylene mesh products manufactured by Johnson & Johnson that were implanted during hernia repair surgeries in each of the three appellants, Mr. Wiebe, Mr. Fappiano, and Mr. Pelletier. Each appellant experienced complications following the surgery requiring one or more revision surgeries to remove the mesh and repair the hernia.
All three appellants eventually consulted legal counsel at Preszler Injury Lawyers and learned (1) the identity of the manufacturer of the mesh and (2) that the mesh products involved in their surgeries were included in a list of devices that Preszler believed were “defective” such that litigation had a reasonable prospect of success.
In each case, the appellants commenced their action more than three years after the final revision surgery and removal of the mesh.3
The Motions for Summary Judgment
On the motion for summary judgment, the three appellants argued that the two-year limitation period only began to run when they learned the identity of the manufacturer of the mesh, and that the mesh used for their surgeries appeared on a list of products that Preszler Injury Lawyers believed were defective, such that the litigation would have merit and a reasonable chance of success.
The motion judge rejected this argument. He found that by the time of the final revision surgery and removal of the mesh, each appellant knew or ought to know all of the elements necessary to institute a claim, with the exception of the identity of the manufacturer. On that remaining element, he determined that the appellants’ medical records had been available to them within months of their revision surgeries, sufficient to identify the appropriate defendants, and that learning of a product through a law firm’s list “cannot revive a limitation period that has expired because of the injured party’s failure to take any steps to find out what happened.”4
The Court of Appeal’s Decision
The ONCA dismissed the appeals and affirmed the motion judge’s decision in its entirety.
i. Discoverability and due diligence
Section 5(2) of the Limitations Act provides that a claim is discovered on the earlier of: (1) the day on which the claimant actually knew the material facts giving rise to the claim, or (2) the day on which a reasonable person, with the claimant’s abilities and in the claimant’s circumstances, ought to have known those material facts. Once a defendant pleads a limitations defence, the burden shifts to the plaintiff to establish that the claim was commenced within the applicable limitation period.5
The ONCA noted that, while due diligence is not expressly referenced in the Limitations Act, it underlies and informs limitation periods. A plaintiff is required to act with due diligence in determining whether they have a claim, and the limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate.6
For a claim to be discoverable, the plaintiff does not need to be certain about liability for their injury. Instead, the plaintiff only needs an evidentiary basis to believe that a defendant did an act or omission that caused the plaintiff a loss for which a court proceeding is an appropriate remedy.7
ii. Applying the standard to the appellants
At the time of their final revision surgery and mesh removal, each appellant knew or ought to have known: (1) that they had suffered injury, loss, or damage; (2) that this injury, loss, or damage might well have been caused by or contributed to by the mesh; (3) that the manufacturer of the mesh might well be responsible for its failure to perform as required; and (4) that a proceeding would be the appropriate means to seek a remedy should they so wish.8
The appellants could easily have discovered the name of the manufacturer in their medical records, and therefore the appropriate defendant.9
The appellants took no steps to consider or explore whether anyone, be it one of the physicians who installed the mesh or the mesh manufacturers, was responsible for the bad outcome of their hernia repairs.10
iii. A law firm’s advertisement or product list is not a material fact
The Court squarely addressed and rejected the appellants’ central argument that the limitation period did not begin to run until they received advice from counsel that the mesh was defective and that the lawsuit had a reasonable prospect of success.11
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 period begins to run. If this were so, virtually all limitation periods would not be triggered until legal advice was sought and obtained.12
iv. No specific date of discovery required
The Court also rejected the appellant’s argument that the motion judge erred by not making a finding as to when, precisely, the claim was discovered or discoverable.
The motion judge explained what each appellant knew or ought to have known within months of their revision surgery and that the claims were issued well beyond the two-year limitation period, which the ONCA found was sufficient in the circumstances.
Key Takeaways
- Discoverability is objective. The limitation period is not suspended simply because a plaintiff was subjectively unaware of their potential claim. Once a plaintiff knows or ought reasonably to have known the material facts underlying their claim, the limitation period begins to run.
- A plaintiff must act with due diligence. The limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the circumstances of their injury.
- A lawyer’s opinion is not a material fact. Being advised by counsel that a claim is appropriate or that a product appears on a law firm’s internal list of allegedly defective items, cannot, without more, constitute a “material fact” that triggers or resets the limitation period.
- Precise dates of discovery are not always required. Defendants moving for summary judgment need not establish the exact day a plaintiff discovered their claim. It is sufficient for the court to explain what the plaintiff knew or ought to have known within a reasonable time following the relevant events and that the claims were issued well beyond the limitation period.
Footnotes
1. Wiebe v. Johnson & Johnson Inc., 2026 ONCA 597 [Wiebe].
3. Wiebe, para 2.
4. Wiebe v. Johnson & Johnson Inc., 2025 ONSC 3958, para 5.
5. Wiebe, paras 20 – 22.
6. Wiebe, para 22.
7. Wiebe, para 25.
8. Wiebe, para 3.
9. Wiebe, para 15.
10. Wiebe, para 31.
11. Wiebe, paras 4, 40.
12. Wiebe, para 35.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
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