After a lengthy summer break, Under the Limit\u00a0<\/i>returns. \u00a0Expect a flood of new posts this week and next.<\/p>\n
We begin with a pleadings decision in which substance triumphed over form. \u00a0A plaintiff’s failure to deliver to a Reply to a Statement of Defence pleading\u00a0a limitations defence won’t necessarily\u00a0bar the plaintiff from making a discoverability argument.<\/p>\n
The defendant in Pershad v. Lachan<\/a><\/em> moved for the dismissal of the plaintiff’s action on the basis that it was statute-barred by the expiry of the limitation period.\u00a0 She ventured the\u00a0rather dubious argument that once she pleaded a limitations defence in her Statement of Defence, rule 25.08 of the Rules of Civil Procedure<\/em> required the plaintiff to deliver a Reply setting out the facts that he intended to prove to establish the discovery\u00a0of his claim within the limitation period. \u00a0The defendant submitted that the failure to do so was fatal to the plaintiff’s claim.<\/p>\n The plaintiff counterargued that a Reply was unnecessary because the facts pleaded in his\u00a0Statement of Claim were sufficient to raise the issue of discoverability.<\/p>\n Justice Lococo held that if Statement of Claim had been\u00a0insufficient to raise discoverability (it was not), the appropriate course of action would have been to grant leave\u00a0to\u00a0file a Reply or amended \u00a0Statement of Claim to remedy the deficiency.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" After a lengthy summer break, Under the Limit\u00a0returns. \u00a0Expect a flood of new posts this week and next. We begin with a pleadings decision in which substance triumphed over form. \u00a0A plaintiff’s failure to deliver to a Reply to a Statement of Defence pleading\u00a0a limitations defence won’t necessarily\u00a0bar the plaintiff from making a discoverability argument. … Continue reading Ontario: arguing discoverability doesn’t require a 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":[9,36,126,127,128],"class_list":["post-277","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discovery","tag-pleading","tag-reply","tag-return-from-summer-break","tag-substance-over-form"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/277","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=277"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/277\/revisions"}],"predecessor-version":[{"id":290,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/277\/revisions\/290"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=277"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=277"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=277"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}