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.