C.A. Says No Need to Plead Discoverability Until Limitation Issue Raised In Defence

In Collins v. Cortez, released today, the Court of Appeal departed from some lower court decisions that had held that a plaintiff intending to rely on the discoverability principle to postpone the commencement of a limitation period must plead in the statement of claim the facts that invoke discoverability. The court below had granted summary judgment in a motor vehicle case, largely on the basis that the plaintiff had failed to plead, in her statement of claim, any facts that would allow her to rely upon the principle of discoverability. TheĀ Court of Appeal reversed that decision, saying that “this was a summary judgment motion, the resolution of which depended on a consideration of the evidence adduced by the parties, and not their pleadings.”

(The latter statement seems to go a bit far, since it is the pleadings that define the scope of what evidence may be adduced.)

The Court added thatĀ “[i]n the normal course, if a limitations defence is raised, as here, in a statement of defence, and the plaintiff relies on the discoverability principle, the material facts relevant to discoverability should be pleaded in reply” and that unless and until a limitation issue is raised in a statement of defence, there is no need for the plaintiff to address it.

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