{"id":1241,"date":"2022-01-03T21:53:26","date_gmt":"2022-01-04T01:53:26","guid":{"rendered":"http:\/\/limitations.ca\/?p=1241"},"modified":"2022-01-03T21:54:39","modified_gmt":"2022-01-04T01:54:39","slug":"ontario-court-of-appeal-on-the-factual-nature-of-discovery","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1241","title":{"rendered":"Ontario: Court of Appeal on the factual nature of discovery"},"content":{"rendered":"

The Court of Appeal decision in Albert Bloom Limited v. London Transit Commission <\/em><\/a>contains a great statement on the factual nature of the s. 5(1)(a) analysis.\u00a0 When a claimant knows the s. 5(1)(a) discovery matters is fact-specific and there\u2019s little value in comparing the unique facts of one case to another:<\/p>\n

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[<\/a>31]\u00a0\u00a0 \u00a0\u00a0\u00a0To be clear, the determination of when a claimant obtains actual knowledge of a claim is case-specific. Little is to be gained from comparing the unique circumstances of one case to another. There is no bright-line test that establishes when a party has actual knowledge of a claim. Instead, the totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the factual circumstances. The evidence she relied on was uncontested, and I do not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact.<\/p>\n<\/blockquote>\n<\/div>\n

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The decision also shows the\u00a0consequences of admitting facts material to the discovery analysis in a pleading. The plaintiff argued that such an admission was ignorable \u201cboilerplate\u201d, but filed no evidence to support this argument (also note that the Court found that an affidavit\u2019s double hearsay was inadmissible):<\/p>\n

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[<\/a>32]\u00a0\u00a0 \u00a0\u00a0\u00a0There is another unique circumstance in this case that supports the motion judge\u2019s finding regarding actual knowledge. It is the plea in the statement of defence and crossclaim that the contamination was caused by a previous owner of the LTC property. That fact clearly distinguishes this case from\u00a0Crombie<\/em>, where there was no such plea.<\/p>\n<\/blockquote>\n<\/div>\n

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[<\/a>33]\u00a0\u00a0 \u00a0\u00a0\u00a0On the motion and this appeal, LTC attempts to explain away that pleading: it was just a \u201cstandard pleading\u201d and did not reflect its actual state of knowledge at the time of the filing of the statement of defence and crossclaim. However, the evidence that counsel had informed the affiant in the affidavit filed by LTC that this was a standard pleading was double hearsay. Contrary to what the affiant stated in her affidavit, on cross-examination, she testified that she had never been provided with this information by LTC\u2019s counsel. In fact, she had received the information from her predecessor at LTC, who apparently was told the information by legal counsel. This evidence was therefore inadmissible on the motion.<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>34]\u00a0\u00a0 \u00a0\u00a0\u00a0LTC asserts, \u201c[t]here was absolutely no evidence on the record before the Motions Judge to suggest that this pleading was other than a boilerplate pleading commonly set out in environmental defences without any factual knowledge attributable to LTC\u201d : Factum, para. 27.\u00a0 This submission reflects a fundamental misunderstanding of the onus on the motion. LTC\u2019s onus was not met by asserting that there was no evidence that this was not a boilerplate pleading. LTC had an obligation to adduce compelling and admissible evidence that it was boilerplate and thus could be ignored. It failed to adduce that evidence.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeal decision in Albert Bloom Limited v. London Transit Commission contains a great statement on the factual nature of the s. 5(1)(a) analysis.\u00a0 When a claimant knows the s. 5(1)(a) discovery matters is fact-specific and there\u2019s little value in comparing the unique facts of one case to another:   [31]\u00a0\u00a0 \u00a0\u00a0\u00a0To be … Continue reading Ontario: Court of Appeal on the factual nature of 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":[95,9,644,23,43,162],"class_list":["post-1241","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-admissions","tag-discovery","tag-hearsay","tag-ontario-act-s-5","tag-ontario-court-of-appeal","tag-pleadings"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1241","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=1241"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1241\/revisions"}],"predecessor-version":[{"id":1243,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1241\/revisions\/1243"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1241"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1241"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1241"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}