I think that the result of the authorities can be summarized as follows: For statutory limitation purposes the common law discoverability rule has been supplanted by the Limitation Act. To the extent that the common law rule and the Act diverge, the statute governs. However, the common law rule and the statutory test for postponement set out in s. 6(4) and 6(5) are substantially indistinguishable and cases applying the common law rule are of assistance in interpreting s. 6(4). Thus, La Forest J. in M.(K.) v. M.(H.) applying the common law rule to an Ontario case approved the test enunciated by Hall J. in Gray v. Reeves interpreting the B.C. statute. In short, I think that s. 6(4) can be said to incorporate the common law test for all practical purposes. In the event of any divergence the statutory test must be considered to supplant the common law.
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