{"id":404,"date":"2016-04-01T16:07:29","date_gmt":"2016-04-01T20:07:29","guid":{"rendered":"http:\/\/limitations.ca\/?p=404"},"modified":"2016-04-01T16:07:41","modified_gmt":"2016-04-01T20:07:41","slug":"ontario-dont-forget-your-argument","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=404","title":{"rendered":"Ontario: don’t skip the argument"},"content":{"rendered":"

Hawthorne v. Markham Stouffville Hospital<\/a> <\/em>is a reminder from the Court of Appeal that a successful discovery argument requires both evidence and<\/em> an explanation of the\u00a0evidence’s connection to discovery of the claim. \u00a0It seems that filing documents and saying\u00a0nothing about them won’t carry the day.<\/p>\n

Hawthorne<\/em> was a medical malpractice action.\u00a0 The respondents moved to dismiss the appellant’s claim as barred by the expiry of the limitation period.\u00a0 Their position was that the appellant ought to have discovered her claim when she obtained medical records from the respondent.<\/p>\n

The motion judge granted summary judgment on the basis that the appellant did not rebut the Limitations Act<\/a>‘s section 5(2)<\/a> presumption that she discovered her claim on the date of the act or omission giving rise to it.\u00a0 The appellant adduced no evidence relating to discoverability to rebut the statutory presumption.<\/p>\n

On appeal, the appellant argued that the motion judge erred by failing to give effect to evidence that was available in the motion record, but not referred to in argument.<\/p>\n

The Court of Appeal said no:<\/p>\n

[8]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0We do not give effect to this argument. The failure of the appellants to respond to the summary judgment motion with evidence to rebut the presumption in\u00a0s. 5(2)<\/a>\u00a0of the\u00a0Limitations Act, 2002<\/em><\/a>\u00a0<\/em>is fatal. Pleadings are not evidence. The appellants could not rest on the pleading of a timely discovery date in their third action, when confronted by a motion for summary dismissal based on the limitations argument.<\/p>\n

[9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The two receipts that were in the record (as part of the respondents\u2019 materials), even if drawn to the attention of the motion judge, without any further evidence or explanation, could not have affected the result. Even if it might be reasonable to conclude that the appellants received medical records on the dates shown in the receipts for payment, this was not sufficient to overcome the statutory presumption. The receipts alone do not advance the appellants\u2019 discoverability argument, in the absence of any explanation by Ms. Hawthorne linking what was in the records to the discovery of her claim.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Hawthorne v. Markham Stouffville Hospital is a reminder from the Court of Appeal that a successful discovery argument requires both evidence and an explanation of the\u00a0evidence’s connection to discovery of the claim. \u00a0It seems that filing documents and saying\u00a0nothing about them won’t carry the day. Hawthorne was a medical malpractice action.\u00a0 The respondents moved to … Continue reading Ontario: don’t skip the argument<\/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":[87,9,23,93,43,212],"class_list":["post-404","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discoverability","tag-discovery","tag-ontario-act-s-5","tag-ontario-act-s-52","tag-ontario-court-of-appeal","tag-the-most-desperate-of-arguments"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/404","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=404"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/404\/revisions"}],"predecessor-version":[{"id":406,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/404\/revisions\/406"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=404"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=404"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=404"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}