Month: September 2015

Manitoba: The Court of Appeal sets out the s. 15(2) test

In Laing v. Sekundiak, the Manitoba Court of Appeal defined the test under section 15(2) of the The Limitations of Action Act.

Manitoba’s limitation scheme is semi-reformed.  It doesn’t have a general limitation period, but it does have a codified discoverability rule.  It’s a curious rule in that a plaintiff can apply (pursuant to section 14(1) of The Limitations of Action Act to the Court for leave to begin or continue an action up to twelve months after the discovery of “material facts of a decisive character upon which the action is based”.

Section 15(2) sets out the evidentiary requirements to obtain leave on a section 14(1) application:

Where an application is made under section 14 to begin or to continue an action, the court shall not grant leave in respect of the action unless, on evidence adduced by or on behalf of the claimant, it appears to the court that, if the action were brought forthwith or were continued, that evidence would, in the absence of any evidence to the contrary, be sufficient to establish the cause of action on which the action is to be or was founded apart from any defence based on a provision of this Act or of any other Act of the Legislature limiting the time for beginning the action.

There has been some uncertainty as to the test created by this section.  The Court has held at times that the evidence must be sufficient to establish a reasonable chance of success, a prima facie case, and a reasonable prospect of success.

In the view of Justice Hamilton, these were merely different ways of saying that same thing: “[T]o be successful, an applicant seeking leave must adduce sufficient evidence to establish a prima facie case and that means demonstrating a case that has a reasonable chance of success.”

Alberta: The new limitation period for contribution claims explained

Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc.  is the first Court of Appeal decision to consider the recent amendments to the Limitations Act establishing a limitation period specific to claims for contribution under the Tort-feasors Act.  These are the paragraphs discussing the amendments:

[33]           By amendment assented to on December 17, 2014 the Limitations Act now provides for limitation periods specific to claims for contribution under theTort-feasors Act.

[34]           Section 3 of the Limitations Act provides:

(1.1)  If a claimant who is liable as a tort‑feasor in respect of injury does not seek a remedial order to recover contribution under section 3(1)(c) of theTort‑feasors Act against a defendant, whether as a joint tort-feasor or otherwise, within

(a)  2 years after

(i)  the later of

(A)   the date on which the claimant was served with a pleading by which a claim for the injury is brought against the claimant, and

(B)   the date on which the claimant first knew, or in the circumstances ought to have known, that the defendant was liable in respect of the injury or would have been liable in respect of the injury if the defendant had been sued within the limitation period provided by subsection (1) by the person who suffered the injury,

if the claimant has been served with a pleading described in paragraph (A), …

whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim for contribution.

(1.2)  For greater certainty, no claim for contribution against a defendant in respect of damage referred to in section 3(1)(c) of the Tort‑feasors Act is barred by the expiry of a limitation period within which the person who suffered that damage could seek a remedial order.

[35]           The applicable Hansard (Bill 8 Justice Statutes Amendment Act, 2014, December 8, 2014) states:

Bill 8 proposes amendments to … clarify … when the discovery limitations period begins for a claim for contribution under the Tort-feasors Act. So when a plaintiff brings an action, they don’t have to list all the possible defendants who may have been responsible for the injury. However, the current law allows a defendant to bring a claim against another person that they believe is also responsible for the same injury to the plaintiff. This proposed change clarifies how the limitation period runs when a defendant brings a claim against another person responsible for the same injury to the plaintiff, and these wording changes are intended to further clarify this change. These clarifications were brought forward to us by the Law Society of Alberta, and the drafters of this amendment worked closely with the Law Society to ensure that every lawyer was satisfied with the new wording of this section.

[36]           In short, subsection 1.1 creates a specific limitation period for tort-feasors’ claims against each other, when previously the common law informed that issue. Subsection 1.2 clarifies that expiry of the limitation period as between the plaintiff and the third party no longer prevents the defendant from claiming contribution from another tort-feasor under the Tort-feasors Act. It gives the defendant two years from the later of the date served and discoverability to seek indemnity from other tort-feasors. Those subsections overcome the difficulties addressed by this court in Howalta and in Arcelormittal Tubular Products Roman SA v Fluor Canada Ltd, 2013 ABCA 279 (CanLII), 556 AR 188, and state the law as it was interpreted in Dean per Slatter J (as he then was). The amendments are deemed to have come into force on March 1, 1999.

[37]           The amendment makes clear who as between plaintiff and the defendant “ought to have known” that the third party was jointly liable for the claimant’s injury in order to satisfy the discoverability requirements of the Limitations Act. For statutory contribution under the Tort-feasors Act, the answer must now be the defendant. This also accords with Dean, in which the court said that discoverability was when the defendant ought to have known that the third party had a duty to contribute because of their joint liability. If so, the plaintiff’s knowledge of the third party’s joint liability is irrelevant.

[38]           The mechanics of litigation associated with third party claims (r 3.44) or statutory claims for contribution (r 3.43) appear to dictate that the statement of claim must be extant before a claim for contribution can be filed. In other words, service of the statement of claim is always the earliest date the limitations period can begin (absent a right of contribution independent of the claimant’s suit, which does not apply on these facts).

[…]

[41]           We note that subsection 3(1.1)(a)(i) contemplates discoverability later than service of the statement of claim. “Under the presumption against tautology, ‘[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose’ …. To the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant”: Placer Dome Canada Ltd v Ontario (Minister of Finance), [2006] 1 SCR 715 at para 45, 2006 SCC 20 (CanLII). Applying this presumption, there must be circumstances when the discoverability limitation period post-dates service of the statement of claim.

Ontario: Determining limitations defences before trial advances justice

In Sutton v. Balinsky, Justice Dunphy, who’s delivering consistently excellent limitations decisions, eloquently describes the policy goals advanced by determining limitations defences prior to trial:

[113]      The Limitations Act is a statute of repose and the policy of the Act is that claims barred by it should not be subject to further inquiry.  By its very nature, a limitation period bids the meritorious claim to sleep undisturbed alongside the meritless.  Reserving judgment on a limitations defence until after a full trial has subjected the parties to a thorough investigation into the merits of a claim that the Limitations Act has decreed should be allowed to rest undisturbed defeats the policy of the Limitations Act to a degree.  If the facts underlying an allegation that an action is barred under the Limitations Act can properly be brought as a summary judgment motion under Rule 20.04 of the Rules of Civil Procedure, it seems to me to advance the policy of the Act to do so and the interests of justice will tend to weigh against requiring a trial in such circumstances.  That is not to say that every such case should necessarily proceed by way of summary judgment without first ascertaining whether justice can be done in doing so or whether a trial is necessary.  I do however suggest that it is appropriate to recognize the public policy underlying the Limitations Act when making the decision as to whether the interests of justice require a trial and consider it as a factor to be weighed.  A factor to be considered does not rise to the level of presumption.  Neither plaintiff nor defendant interests are served by undergoing a lengthy trial on numerous issues when the entire matter could potentially be resolved by a consideration of only a few.  The policy of the Limitations Act is thus a factor but cannot be presumed to be the controlling one in considering the requirements of justice in a particular case.

Justice Dunphy also conveniently summarises the major principles of discoverability under the Limitations Act.  Notably, the summary is untainted by principles applicable to common law discoverability only.

[146]      Our courts have developed a considerable body of case law since 2002 under the new Limitations Act and the case law under the old still has application as regards many issues.  Several themes that have consistently emerged from that jurisprudence that are of particular relevance here include:

a.      it is not necessary to have all of the facts underlying the complete claim – it is enough to have sufficient facts to bring a claim: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 (CanLII) at para. 55-61;

b.      It is enough that the plaintiff has prima facie grounds to infer that a defendant’s actions caused or contributed to her loss even if the responsibility of each of multiple possible defendants is not yet known – certainty is not a requirement: Longo v. MacLaren Art Centre Inc.,2014 ONCA 526 (CanLII) at para. 44 and Johnson v. Studley, 2014 ONSC 1732 (CanLII) at para. 61;

c.      “Neither the extent of damage nor the type of damage need be known.  To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period”:  per Major J. in Peixero v. Haberman, 1997 CanLII 325 (SCC), 1997 3 S.C.R. 549 at para. 18;

d.       “error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period”:  per Perell J. inNicholas v. McCarthy, 2008 CanLII 54974 (ON SC), 2008 CanLII 54974 (Ont. S.C.) at para. 27-29, aff’d 2009 ONCA 692 (CanLII), leave to appeal denied 2010 CanLII 12967 (SCC);

[147]      A corollary of these principles is the over-arching obligation of due diligence.  Limitation periods are designed to incent claimants not to sleep on their rights.  Ignorance of the law is not an excuse if the facts giving rise to legal claims are known.  A party alerted to circumstances where a reasonably prudent person of similar abilities and in the same circumstances would seek professional advice must do so or risk having the claim struck as being out of time.  Knowledge of the existence of damage, its source and a reasonable understanding of who is or might be expected to be responsible for some of it at least is enough.

 

Ontario: Remember, the Trustee Act doesn’t supersede the Limitations Act

The Plaintiffs in Kakinoki et al. v. Islam et al. sought leave to add a defendant notwithstanding the expiry of the presumptive limitation period.  They submitted that the limitation period in section 38(3) of the Trustee Act excludes the application of the section 4 general limitation period in the Limitations Act.  However, it’s settled law that the Trustee Act doesn’t  supersede the Limitations Act.  That the doctrine of special circumstances applies to the Trustee Act but not the Limitation Act is of no consequence.

Justice Dunphy helpfully summarised the interaction between the Limitations Act and the Trustee Act:

[25]           The relief sought by the plaintiffs, ostensibly grounded in s. 38 of the Trustee Act, would produce an outcome diametrically opposite to one that a straightforward reading of s. 38 would lead one to suppose.  Section 38(1) of the Trustee Act modifies the rule of the common law which had the sometimes harsh effect of making a defendant better off should an injured person succumb to his or her injuries.  As a result of s. 38, their claim can be taken up by the executor or trustee “in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do”.  I have already found that Mr. Kur, who survived the accident, lost the right to pursue the Township of King by reason of s. 4 of the Limitations Act.  It would be anomalous indeed if s. 38 of the Trustee Act, while purporting only to vest in the executor the same rights as the deceased Mr. Kakinoki would have had if he had survived the tragedy, instead potentially vested higher rights in his estate and those claiming thought it.  Such a reading would turn s. 38 on its ear and is not one which the plain wording of s. 38 compels.  It does not purport to exclude the operation of other limitation periods, but imposes another limitation period which may well prove shorter in some cases.

 

[26]           In the case of Camarata, supra, the Court of Appeal found (at para. 8):

 

“Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act.  Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action.  In some circumstances s. 38(3) will effectively shorten what would otherwise be the applicable limitation period….Section 38(3) cannot extend the limitation period what would have been applicable had the deceased not died and been able to carry on with his action” (emphasis added).

 

[27]           Camarata has found that both limitation periods must be applied and that the Trustee Act does not supercede the Limitations Act.  This is consistent not only with precedent but with the plain words of the statute and common sense.  Thus, even if I were to be moved to exercise discretion to soften the application of the Trustee Act, I can do nothing to mitigate the application of the Limitations Act.

 

[28]           Section 20 and 21 of the Limitations Act also demand this same conclusion and preclude me from granting the requested amendment adding the Township of King to the Kakinoki action:

 

“20. This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.

 

  1. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”

 

[29]           Section 38(3) of the Trustee Act and Section 4 of the Limitations Act both provide for a two year limitation period which, given the death of Mr. Kakinoki on the day of the accident, happen to coincide with each other precisely (subject to extensions of the latter limitation due to possible discoverability issues which do not apply to Trustee Act claims).  The Trustee Act by its terms does not purport to extend, vary or suspend the Limitations Act.  To the contrary, they both apply a two year period.   The doctrine of special circumstances allowing what is, in effect, a nunc pro tunc amendment to pleadings to avoid the application of the Trustee Act can hardly be characterized as an extension, variation or suspension under another Act as referred to in s. 20 of the Limitations Act and, accordingly, s. 21 thereof precludes me from adding the Township of King to this existing proceeding as requested in this motion.

 

[30]           Accordingly, on the basis of Camarata, supra, and s. 21 of the Limitations Act, I must dismiss the plaintiffs’ motion to add Township of King as a defendant at this stage in the proceedings given the passage of the limitation period under s. 4 of the Limitations Act.

 

Ontario: no new limitation arguments on appeal

Whiteman v. Iamkhong is a reminder from the Court of Appeal that a party may not raise a new limitations argument on appeal.

The plaintiff appealed from the summary dismissal of his action based on the expiry of the limitation period.  On appeal, he argued that sections 10(1) and 16(1)(h) of the Limitations Act nullified the limitations defence, but he hadn’t pleaded this law or raised it during the summary judgment motion.  The Court refused the appeal:

[4]         Instead, the appellant raises for the first time the argument that his action against the respondents is not statute-barred because of the operation of ss. 10 and 16(1)(h) of the Limitations Act. Section 10(1) tolls the running of the limitation period in respect of a claim based on assault or sexual assault during “any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.”  Section 16(1)(h) states that there is no limitation period in respect of a proceeding “arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise.”

 

[5]         Notwithstanding several amendments to his pleading, the appellant did not plead ss. 10 and 16(1)(h) of the Limitations Act, nor did he raise those sections during the argument of the summary judgment motion.

 

[…]

 

[7]         The appellant’s argument that he was incapable of commencing the proceeding within the meaning of s. 10 of the Limitations Act is foreclosed by the motion judge’s finding that he had sufficient facts upon which to base a claim by March of 2004, or at the latest, when he filed his application for compensation with the Criminal Injuries Compensation Board in July 12, 2004.  This finding was reasonable on the evidence before the motion judge.

 

[8]          In our view, it would be contrary to the interests of justice to entertain the appellant’s argument for the first time on appeal respecting the possible application of s. 16(1)(h) of the Limitations Act.  On a motion for summary judgment, a responding party must put its best foot forward or risk losing the motion.  The possible application of s. 16(1)(h) to the appellant’s cause of action would require a consideration of evidence as to whether Ms. Iamkhong was in a position of trust in relation to the appellant at the time of the assault which infected him.  We are not satisfied that all the facts necessary to address these points are before this court as fully as if the issue had been raised on the summary judgment motion.  Further, there is no suggestion by the appellant that the evidence relevant to these points only became known to him after the summary judgment motion had been argued and decided.

 

Ontario: the ultimate limitation period can define members of a class action

In a class action, the ultimate limitation period can define the class members.

In Amyotrophic Lateral Sclerosis Society of Essex v. Windsor, the defendants appealed the certification of two class actions claiming that charitable lottery licensing and administration fees they collected are direct taxes and ultra vires because the revenues far exceed the costs of administration.  Their primary objection was to the temporal scope of the of the class, which included charities that had paid fees since 1990.  They argued that the class reached too far back in time.

The defendants proposed to limit the claims to those that were commenced within the presumptive limitation period.  The plaintiffs complained that truncating the class in this way presupposed that claims outside the period were time-barred, which is a conclusion that turns on a discoverability analysis.  It’s settled law that where the resolution of a limitation issue depends on a factual inquiry, the Court shouldn’t determine the issue on a certification motion.

However, without a temporal limit the claims would reach back to 1969/1970 when Ontario first introduced the licencing regime for charitable gaming.  The parties agreed that such a class definition would make the proceeding unmanageable.

Justice Strathy resolved the issue by using the Limitation Act‘s section 15 ultimate limitation period to define a sub-class for those persons whose claims are presumptively time-barred but within the ultimate limitation period:

[43]      In my view, the temporal boundary of the class can be defined in a rational way by reference to the ultimate limitation period in s. 15(2) of the Limitations Act, 2002. That provides, “No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.” This would result in a class definition encompassing persons who paid fees from and after October 24, 1993.

 

[44]      Although s. 15(4) of the Limitations Act, 2002 provides an exception to the ultimate limitation period in the case of wilful concealment, drawing the class boundary at the ultimate limitation period is not arbitrary because it separates claims that require proof of wilful concealment from those that do not.

 

[45]      As I will explain, concerns with respect to manageability can be addressed by the creation of a subclass, by stating common issues for the subclasses and by appropriate case management. I will discuss the subclass issue next.

 

(b)         Subclasses

 

[46]      The court has the authority to certify a subclass of class members who have claims or defences not shared by all class members: CPA, s. 5(2). Subclasses are appropriate when there are common issues applicable to the class as a whole and other issues that are applicable to some, but not all class members: Caputo v. Imperial Tobacco Ltd. (2004), 2004 CanLII 24753 (ON SC), 44 C.P.C. (5th) 350 (Ont. S.C.), at para. 45.

 

[47]      Here, issues of liability and damages are common to all class members. However, the claims of class members with presumptively time-barred claims raise common issues of fact and law not shared by those with timely claims. They should form a subclass. I would therefore certify a subclass of persons who paid fees between October 24, 1993 and October 23, 2002 and between January 1, 2004 and October 23, 2006. These are the payments made within the “ultimate limitation period” in s. 15 of the Limitations Act, 2002, but not within the basic limitation period and not preserved by the transition rules of the statute.

Ontario: s. 9(1) of the Municipal Conflict of Interest Act is not a limitation period, sort of

Whatever impact the Ford brothers may have, who would have though that it would include limitations law? And yet here they are in MacDonald v. Ford, arguing that section 5 of the Limitations Act should inform the commencement of the time period set out in section 9(1) of the Municipal Conflict of Interest Act.  Justice Perell correctly concludes that it doesn’t, but through an analysis that gives rise to a new category of “non-conventional” limitation periods.  The one thing limitations law needed, of course, is a further complication.

Section 9(1) of the Municipal Conflict of Interest Act entitles an elector to apply to a judge for a determination of whether a member has contravened section 5 of the Act.  It imposes a time limit of six weeks “after it comes to his or her knowledge that a member may have contravened” the Act’s provisions.

The applicant brought an application under section 9(1) alleging that the Ford brothers contravened the Municipal Conflict of Interest Act by voting on seven matters before Toronto City Council and its committees despite conflicts of interest.

The Fords argued that section 9(1) “should be interpreted in a way that infuses it with the discoverability principles found in section 4 and 5 of the Limitations Act, 2002“.  In essence, they argued that the applicant objectively had knowledge of the alleged contraventions more than six weeks before commencing the application.  Given her “keen interest in municipal government”, with due diligence the applicant should have had the requisite knowledge within six weeks of the contraventions.

The applicant’s counterargument was that her application was timely because, on her uncontested testimony, she brought the Application within six weeks of subjectively obtaining knowledge of the contraventions.

Justice Perell held reasonably and, I think, correctly that because section 9(1) considers only the subjective knowledge of the applicant, there is no basis for applying the objective discovery principles in the Limitations   Act.  In any event, it would take some creativity to apply the section 5 discovery criteria to an application under section 9(1) of Municipal Conflict of Interest Act.  The claim (as defined by the Limitations Act) they contemplate is materially different than a section 9(1) application.

The issue is with how Justice Perell arrived at his conclusion.  He finds that section 9(1) is a “temporal condition precedent or qualifying criterion to an application”.  It “can be labelled a limitation provision but it is not a conventional one and its more accurately characterized as a qualification or condition precedent”:

[150]      In my opinion, the section of the Act that is a genuine conventional limitation period is the absolute limitation period described in s. 9(3) of the Act  [which provides that no application shall be brought after the expiration of the term of office of the member of council during which the contravention is alleged to have occurred]. In my opinion, s. 9(1) is a temporal qualification to the bringing of an application under the Act. It is for certain not a conventional limitation period of the like found in sections 4 and 5 of the Limitation Act, 2002. The language, purpose, and design of s. 9(1) of the Act are different from the language, purpose, and design of sections 4 and 5 of the Limitation Act, 2002.

 

[…]

 

[153]      As far back as pre-Confederation statutes, the Legislature intended that relators and electors not rest inactive when they come to have personal knowledge of contraventions of election law or of misconduct by municipal politicians. The policy imperatives here have little to do with the evidentiary and repose policies of limitation period statutes. Further, the review of the case law shows that s. 9(1) does not operate as a conventional limitation period to provide technical defences to a defendant and s. 9(1) does not foreclose late arriving electors, even recruited electors, from advancing an allegation that theAct has been contravened.

[154]      The case law shows that an application under the Municipal Conflict of Interest Act will be statute-barred based on subjective factors associated with the knowledge of a particular applicant. The case law shows that only if the applicant had subjective actual or constructive knowledge of the facts on which the alleged contravention of the Act is grounded more than six weeks before the application is issued will the claim be statute-barred.

The problem is, by the plain meaning of the Limitations Act, section 9(1) is a limitation period.  Section 19(1) of the Limitations Act provides that ” A limitation period set out in or under another Act that applies to a claim to which this Act applies is of no effect unless, (a) the provision establishing it is listed in the Schedule to this Act.  Section 9(1) and 9(3) of the Municipal Conflict of Interest Act are both listed in the schedule.  This would seem a very strong indication that the Legislature intended 9(1) to be a limitation period.

It was available for the Court to define section 9(1) as a limitation period without exposing it to the application of the Limitations Act‘s section 5 discovery provisions .  It’s long settled that these provisions don’t necessarily apply to schedule 19 limitation periods.  The limitation periods in the Trustee Act are examples; discoverability doesn’t operate to extend them (although for unrelated reasons).

By defining section 9(1) as a not conventional limitation period–a temporal condition precedent or qualifying criterion–Justice Perell effectively created a new category of quasi-limitation periods.  To my knowledge, no other Ontario jurisprudence has applied this concept or used this terminology.  It’s difficult to see the advantage of  introducing this new category; at best it further muddies the already fraught conceptual framework of the limitations regime.

As for the Ford brothers, their argument failed.  The application was timely:

[155]      Applying the above law to the circumstances of the immediate case, the uncontradicted evidence of Ms. MacDonald shows that her Application was timely. The Fords’ arguments of untimeliness would impose some sort of Sherlockian investigative duty on Ms. MacDonald to connect all the requisite facts because some of the facts were online in City records readily available to the inquiring mind of one Ms. MacDonald. As a matter of evidence, however, Ms. MacDonald has uncontested evidence about her state of knowledge at the time when she commenced her Application and based on her evidence each of her complaints is timely.

[156]      The Fords did not bring forward evidence, as did the respondents in Stephenson v. Hunt, Kay v. Ferguson, Alcock v. McDougald, and Hervey v. Morris, to show that the Applicant subjectively had earlier knowledge of the alleged contravention.

Ontario: arguing discoverability doesn’t require a Reply

After a lengthy summer break, Under the Limit returns.  Expect a flood of new posts this week and next.

We begin with a pleadings decision in which substance triumphed over form.  A plaintiff’s failure to deliver to a Reply to a Statement of Defence pleading a limitations defence won’t necessarily bar the plaintiff from making a discoverability argument.

The defendant in Pershad v. Lachan moved for the dismissal of the plaintiff’s action on the basis that it was statute-barred by the expiry of the limitation period.  She ventured the rather dubious argument that once she pleaded a limitations defence in her Statement of Defence, rule 25.08 of the Rules of Civil Procedure required the plaintiff to deliver a Reply setting out the facts that he intended to prove to establish the discovery of his claim within the limitation period.  The defendant submitted that the failure to do so was fatal to the plaintiff’s claim.

The plaintiff counterargued that a Reply was unnecessary because the facts pleaded in his Statement of Claim were sufficient to raise the issue of discoverability.

Justice Lococo held that if Statement of Claim had been insufficient to raise discoverability (it was not), the appropriate course of action would have been to grant leave to file a Reply or amended  Statement of Claim to remedy the deficiency.