{"id":1126,"date":"2020-07-16T09:20:01","date_gmt":"2020-07-16T13:20:01","guid":{"rendered":"http:\/\/limitations.ca\/?p=1126"},"modified":"2020-07-16T09:20:05","modified_gmt":"2020-07-16T13:20:05","slug":"ontario-the-dangers-of-arguing-a-particular-step-would-have-caused-discovery","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1126","title":{"rendered":"Ontario: the dangers of arguing a particular step would have caused discovery"},"content":{"rendered":"

I often see defendants argue that if a plaintiff had undertaken a certain step, discovery would have occurred on an earlier date.\u00a0 Without evidence that the plaintiff taking this step on a specific date would have resulted in the plaintiff learning on another specific date the facts necessary for discovery, this argument is purely hypothetical and can\u2019t succeed.\u00a0 The court in Ledoux v. Lee <\/em><\/a>makes the point:<\/p>\n

40.\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Uber also argued that Mr. Ledoux\u2019s lawyer should have served Co-operators with a formal notice of his claim against Mr. Lee after getting the police report. Mr. Giugaru contended that this is a standard practice because it allows a plaintiff to claim pre-judgement interest from the date of the notice.\u00a0 Had Mr. Ledoux\u2019s counsel put Co-Operators on formal notice of a potential claim, he argued, the insurer might have advised the plaintiff of the coverage issue and disclosed Mr. Lee\u2019s activity as an Uber driver.<\/p>\n

41.\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0This argument is speculative.\u00a0 I could not conclude, on the evidence before me, that it is standard practice for plaintiff\u2019s counsel in MVA claims to formally notify the defendant motorist\u2019s insurer of a potential claim. Even if I had been able to, I could not infer that a formal notice letter to Co-Operators would have yielded information about its position on coverage.\u00a0 Mr. Ledoux\u2019s lawyers were in communication with Co-Operators from September 2017 forward, providing it with a copy of the police report and Mr. Ledoux\u2019s hospital record.\u00a0 There is no evidence that, in the course of this correspondence, the adjuster ever so much as hinted that it might deny coverage or disclosed that Mr. Lee was participating in the gig economy, even though it notified the insured of its denial of coverage on this basis two weeks after the accident.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

I often see defendants argue that if a plaintiff had undertaken a certain step, discovery would have occurred on an earlier date.\u00a0 Without evidence that the plaintiff taking this step on a specific date would have resulted in the plaintiff learning on another specific date the facts necessary for discovery, this argument is purely hypothetical … Continue reading Ontario: the dangers of arguing a particular step would have caused 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":[4],"tags":[87,144,9,450,219],"class_list":["post-1126","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discoverability","tag-discoverability-principles","tag-discovery","tag-evidentiary-burdens","tag-ontario-act-s-51"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1126","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=1126"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1126\/revisions"}],"predecessor-version":[{"id":1128,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1126\/revisions\/1128"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1126"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1126"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1126"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}