The Court of Appeal decision in Collins v. Cortez is a reminder that plaintiffs may respond to a limitations defence by delivering a reply. Plaintiffs needn’t plead facts supporting a discovery argument in the Statement of Claim in anticipation of a limitations defence.
In Collins, Cortez moved to dismiss Collins’s personal injury claim on the basis that it was commenced two years after her accident and statute-barred by the expiry of the limitations period. Justice Gordon granted the motion. He gave effect to the presumption in section 5(2) of the Limitations Act, 2002 that the limitation period commenced on the date of accident. He held that because Collins did not plead discoverability facts in her Statement of Claim, she couldn’t make out a section 5(1) discoverability argument.
The Court of Appeal allowed Collins’s appeal:
In 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. I disagree with the conclusion of the motion judge that the appellant was required to plead the facts relevant to discoverability in her statement of claim. The expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence. As such, discoverability, which is relevant to the limitations defence, need not be anticipated by a plaintiff and addressed in her statement of claim [citations omitted].
Update: Failing to deliver a Reply won’t necessarily bar a plaintiff from arguing discoverability.
