{"id":1051,"date":"2020-04-28T21:33:21","date_gmt":"2020-04-29T01:33:21","guid":{"rendered":"http:\/\/limitations.ca\/?p=1051"},"modified":"2020-04-28T21:34:15","modified_gmt":"2020-04-29T01:34:15","slug":"ontario-the-consequences-of-failing-to-plead-discovery-in-reply","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1051","title":{"rendered":"Ontario: the consequences of failing to plead discovery in reply"},"content":{"rendered":"

The defendant in Anisman v. Drabinsky<\/em><\/a> argued that the plaintiff could not argue discovery in response to a limitations defence because he hadn\u2019t served a Reply pleading the material facts of discovery.\u00a0 The court rejected this (very optimistic argument) argument:<\/p>\n

\n

[<\/a>17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Finally, Defendants\u2019 counsel submits that the Plaintiff\u2019s factum makes improper reference to his response to the Defendants\u2019 limitation argument. It is the Defendants\u2019 position that since the Plaintiff never issued a Reply pleading in response to the limitation point raised in the Statement of Defence, the Plaintiff is prohibited from arguing any defence to the limitation challenge. Defendants\u2019 counsel therefore asks that those paragraphs be struck from the Plaintiff\u2019s factum.<\/p>\n<\/blockquote>\n

\n
\n

[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Plaintiff may not have a pleading to support his point, but there is evidence in the record that has been fairly adduced that supports it. The Court of Appeal has expressly held that under such circumstances it would be an error to proceed on the basis suggested by Defendants\u2019 counsel: \u201cAgain, 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:\u201d\u00a0Collins v Cortez<\/i>,\u00a02014 ONCA 685<\/span><\/a>, at para\u00a012<\/a><\/span>.<\/p>\n

[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Plaintiff here seeks summary judgment, and it is incumbent on me to consider the record as a whole rather than to focus narrowly on the pleadings alone. I therefore find no reason to redact or excise any portion of the evidentiary record or any factum.<\/div>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Statement of Claim herein was issued on June 18, 2019, some 3 years and 9 months after the impugned transfer of title. Defendants\u2019 counsel submits that the 2-year limitation period under the\u00a0Limitations Act, 2002<\/a><\/i>\u00a0was missed by the Plaintiff. Defendants\u2019 counsel further submits that the Defendants having pleaded a limitation defence, it was incumbent on the Plaintiff to serve a Reply pleading. He argues that failing that, the Plaintiff is foreclosed from including anything in the present Motion Record by way of a response to the limitation defence.<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Counsel for the Defendants relies on Rule 25.08 for the proposition that a Reply pleading is necessary in these circumstances. That Rule provides:<\/div>\n
25.08<\/b>\u00a0(1) A party who intends to prove a version of the facts different from that pleaded in the opposite party\u2019s defence shall deliver a reply setting out the different version, unless it has already been pleaded in the claim.<\/div>\n

(2) A party who intends to reply in response to a defence on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by a previous pleading shall deliver a reply setting out that matter\u2026<\/p>\n

[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It is evident from the wording of both parts of Rule 25.08 that it is the element of surprise that determines whether or not a Reply is required. That is, the Defendants must not be taken by surprise by facts of which they were unaware.<\/p>\n

[<\/a>49]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0This court has long noted that, \u201c[i]f a limitation defence is raised, the plaintiff should, where appropriate, serve a reply raising any facts and contentions relied upon to rebut the defence and pleading the basis for any discretion that the court may have in the matter\u201d:\u00a0D.S. Park Waldheim Inc. v Epping<\/i>\u00a0(1995),\u00a01995 CanLII 7091 (ON SC)<\/a>,\u00a024 OR (3d) 83 (Gen Div)<\/span><\/span>,\u00a0quoting\u00a0Graham Mew,\u00a0The Law of Limitations<\/i>\u00a0(Markham:\u00a0Butterworths, 1991), p. 54. This is particularly the case where \u201cthe plaintiff\u2026relies on\u2026the doctrine of discoverability\u2026[which] depends on an unresolved question of fact\u201d:\u00a0Epping<\/i>, at 85.<\/div>\n
[<\/a>50]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Plaintiff makes a number of arguments in response. In the first place, he submits that there is nothing in his response to the limitation point that will take the Defendants by surprise. Secondly, he contends that the cause of action pleaded in the Statement of Claim was not discovered by him until substantially later, and that there was nothing in the conduct of the parties that would have tipped him off that a transfer of title had taken place with respect to the Property.<\/div>\n
[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Plaintiff points out that the Statement of Claim herein was served with a Certificate of Pending Litigation, which the Plaintiff had obtained on an\u00a0ex parte<\/i>\u00a0basis at the outset. Since the Certificate was obtained without notice to the Defendants, the Plaintiff also served them at the same time with his Motion Record in support of the Certificate, as required. That Motion Record contained an affidavit sworn by the Plaintiff setting out how he had discovered the transfer of title. At paragraph 8 of his affidavit, served together with the Statement of Claim on June 25, 2019, the Plaintiff stated:<\/div>\n
On September 11, 2015, shortly after my request for payment of August 24, 2015, Mr. Drabinsky transferred his interest in his house at 478 Spadina Road (the \u2018Property\u2019) to his wife. I learned of this transfer on April 20, 2019, before I examined Mr. Drabinsky in aid of execution.<\/div>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The circumstances and date of discovery \u2013 i.e. that he first learned of the transfer when he searched title in preparation for an examination in aid of execution on the judgment he had obtained on November 15, 2018 \u2013 are the crucial facts on which the Plaintiff relies in responding to the limitation defence. It is this brief statement of fact that would likely have been contained in a Reply had one been served. \u00a0Given that it was contained in the package of materials served together with the Statement of Claim and Certificate of Pending Litigation, the Defendants were on notice in much the same way as they would have been had the sentence been repeated in a Reply pleading.<\/p>\n

[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It is the Defendants\u2019 position that if the relevant facts did not find their way into a Reply, they are to be ignored in assessing the merits of the limitation defence. I do not accept that position. To ignore what was in the Plaintiff\u2019s motion record and affidavit because it was not repeated in a Reply would be to elevate form over substance to an unacceptable degree:\u00a0Marshall v Watson Wyatt & Co<\/i>.,\u00a02002 CanLII 13354<\/span><\/a>, at para\u00a025<\/a>\u00a0(Ont CA)<\/span>.<\/div>\n
[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As is evident from the narrative in Part II above, prior to the examination in aid of execution there was nothing to prompt the Plaintiff to search title of the Property. Mr. Drabinsky consistently lead him to believe that he would be receiving payment imminently, and even provided him with replacement cheques when the previous ones became stale-dated. Further, Mr. Drabinsky was more than just another debtor; he was a rather renowned debtor who was very much in the public eye. It did not occur to the Plaintiff (or, presumably, to any other creditors) that Mr. Drabinsky would be denuding himself of substantial assets such as the Property. As the Plaintiff submits, there is only a duty to investigate when there is something that leads one to investigate:\u00a0Fennell v Deol<\/i>,\u00a02015 ONSC 4835<\/span><\/a>, para\u00a08<\/a><\/span>.<\/div>\n<\/blockquote>\n<\/div>\n

Ironically, the issue was moot because the plaintiff was seeking to recover land, which means the ten-year RPLA<\/a>\u00a0limitation period applied.<\/p>\n","protected":false},"excerpt":{"rendered":"

The defendant in Anisman v. Drabinsky argued that the plaintiff could not argue discovery in response to a limitations defence because he hadn\u2019t served a Reply pleading the material facts of discovery.\u00a0 The court rejected this (very optimistic argument) argument: [17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Finally, Defendants\u2019 counsel submits that the Plaintiff\u2019s factum makes improper reference to … Continue reading Ontario: the consequences of failing to plead discovery in reply<\/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":[4],"tags":[190,192,9,23,36,162,126],"class_list":["post-1051","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-civil-procedure","tag-creative-or-obnoxious-use-of-the-rules-of-civil-procedure","tag-discovery","tag-ontario-act-s-5","tag-pleading","tag-pleadings","tag-reply"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1051","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=1051"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1051\/revisions"}],"predecessor-version":[{"id":1053,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1051\/revisions\/1053"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1051"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1051"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}