{"id":1015,"date":"2020-04-16T14:57:42","date_gmt":"2020-04-16T18:57:42","guid":{"rendered":"http:\/\/limitations.ca\/?p=1015"},"modified":"2020-04-16T14:58:37","modified_gmt":"2020-04-16T18:58:37","slug":"ontario-dont-rely-on-a-lawyers-affidavit-to-establish-discovery","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1015","title":{"rendered":"Ontario: don’t rely on a lawyer’s affidavit to establish discovery"},"content":{"rendered":"

The Superior Court decision in 1365 California Ltd. v. Moss Property Management Inc. <\/em><\/a>is an appeal from a master\u2019s decision granting leave to add a proposed defendant.\u00a0 It provides two important reminders: a lawyer\u2019s affidavit is a lousy way of rebutting presumptive discovery and sometimes lawyers get cross-examined on their affidavits.<\/p>\n

The court held that the master\u2019s determination of when the plaintiffs subjectively discovered their claim was in error.\u00a0 The plaintiffs had not filed any evidence of when they discovered their claims.\u00a0 They had filed only a lawyer\u2019s affidavit that did say when discovery occurred.\u00a0 On cross-examination by the proposed defendants, the lawyer admitted that he didn\u2019t know what the plaintiffs knew, and that he hadn\u2019t spoken with them.\u00a0 Accordingly, for want of evidence the plaintiffs couldn\u2019t rebut the presumption that subjective discovery occurred on the date of the act or omission giving rise to the claim .<\/p>\n

These are the material paragraphs:<\/p>\n

\n

[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0With respect, the Master\u2019s finding that the Respondents did not have actual knowledge of the claims against the Proposed Defendants until they received the Second Report is not supported by the evidence.<\/p>\n

\u00a0[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In support of their motion for leave to amend, the Respondents relied upon the affidavit of Mark Russell (the \u201cRussell Affidavit\u201d), an associate at the firm representing the Respondents in this litigation but who is not involved in the file.\u00a0 The Russell Affidavit gives a chronology of the steps in the proceeding, as described above.\u00a0 It does not state when the Respondents had actual knowledge of the facts underlying the New Claims against the Proposed Defendants.\u00a0 Nor does the Russell Affidavit state that the Respondents did not know that they had claims against the Proposed Defendants until the Second Report was received, or at any time before December 16, 2016.\u00a0 The affidavit is silent as to what the Respondents knew and when they knew it.<\/div>\n
\u00a0[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0On cross-examination, Mr. Russell admitted that he did not know what the Respondents knew, and that he did not know whether they knew more or less than he did.\u00a0 Mr. Russell stated that he had not spoken to the Respondents and repeatedly stated that he did not have carriage of the file.<\/div>\n
\u00a0[<\/a>22]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Since the Respondents bear the burden of showing that they lacked the requisite knowledge as of two years before the motion was brought, the \u201ccritical issue\u201d is \u201cwhat the plaintiff or its agents (chiefly its lawyers) knew or ought to have known about the facts underlying the [proposed claim.]\u201d\u00a0\u00a0Sealed Air<\/i>, at para. 18.<\/div>\n

[<\/a>24]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In determining whether the Respondents rebutted the statutory presumption, the issue was not, as the Master stated, whether the Respondents had actual knowledge as of the date of the First Report, but whether they had actual knowledge at any time before December 16, 2016.\u00a0 At no time did the Respondents state that they did not know facts underlying the New Claims when the acts took place.\u00a0 The Respondents adduced no evidence as to when they knew those facts.\u00a0 The lack of any \u201csuggestion\u201d that the Respondents knew of the claims when they occurred was not sufficient to rebut the presumption.\u00a0 In the absence of any evidence from the Respondents as to when they had actual knowledge, the Master committed a palpable and overriding error in finding that they had no knowledge until they received the Second Report.<\/p>\n

[<\/a>25]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Without any evidence on the Respondents\u2019 knowledge, it could not be inferred that the Respondents did not have actual knowledge until they received the Second Report.\u00a0 A chronology of steps taken in the litigation, without more, is insufficient to draw any inference as to the state of the Respondents\u2019 knowledge in this case.<\/div>\n
[<\/a>26]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Respondents\u2019 failure to rebut the statutory presumption of knowledge under s. 5(2), means that, pursuant to s. 5(1)(a), the claim was discoverable when the act or omission took place.\u00a0 The two-year limitation period would run from that date.\u00a0 The allegations in the Statement of Claim end in November 2011.\u00a0 Other than to give the chronology leading up to the delivery of the Second Report, the Amended Statement of Claim does not allege specific acts or dates in relation to the Proposed Defendants.\u00a0 Accordingly, the limitation period expired in November 2013.\u00a0 Pursuant to s. 21(1) of\u00a0the Limitations\u00a0<\/i>Act, if a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Superior Court decision in 1365 California Ltd. v. Moss Property Management Inc. is an appeal from a master\u2019s decision granting leave to add a proposed defendant.\u00a0 It provides two important reminders: a lawyer\u2019s affidavit is a lousy way of rebutting presumptive discovery and sometimes lawyers get cross-examined on their affidavits. The court held that … Continue reading Ontario: don’t rely on a lawyer’s affidavit to establish discovery<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[124,9,450,451,569],"class_list":["post-1015","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-adding-a-party","tag-discovery","tag-evidentiary-burdens","tag-things-that-are-self-evident","tag-throwing-juniors-under-the-bus"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1015","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1015"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1015\/revisions"}],"predecessor-version":[{"id":1017,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1015\/revisions\/1017"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1015"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1015"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}