Case Summary by Rikin Morzaria, OTLA Director, McLeish Orlando lawyer
This is an important summary judgment decision in which the Court of Appeal effectively does away with the requirement that plaintiffs plead discoverability facts in the Statement of Claim.
The plaintiff, Judy Collins, was injured in a motor vehicle collision on August 17, 2009. She did not issue a Statement of Claim until September 9, 2011. Ms. Collins’ Statement of Claim did not plead when she discovered the cause of action. The Defendant moved for summary judgment. In her affidavit file in response to the motion, Ms. Collins stated that she only became aware of the severity of her injuries on September 21, 2009 after an x-ray of her cervical and lumbar spine. This was when she realized that her injuries would likely be permanent.
The motion judge granted summary judgment on the basis the plaintiff’s failure to plead discoverability facts in her Statement of Claim was fatal.
On appeal, the Court of Appeal noted that the expiry of a limitation period is a defence to an action, which must be pleaded in a Statement of Defence. As such, it need not be anticipated by a plaintiff in the Statement of Claim. Rather, a plaintiff may address the limitation period defence in reply.
In addition, the Court noted that summary judgment motions must be decided based on the evidence adduced by the parties, and not by the pleadings.
The Court dismissed the motion and allowed the plaintiff 10 days to deliver a reply setting out the material facts relied upon on this issue of discoverability.