The recent decision of the Ontario Divisional Court of Pereira et al. v. Contardo found in favour of the plaintiff on a summary judgment motion to dismiss the plaintiff’s personal injury claim as statute-barred. At issue was whether the plaintiff complied with his obligation to put his best foot forward in opposing the motion, as the plaintiff did not file any responding material, and simply relied on the evidence put forward by the defendant to defend the motion.
The Rules of Civil Procedure require that a responding party on a motion for summary judgment “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Rather than file responding material, the plaintiff simply relied on the affidavit evidence put forward by the defendant and argued that the limitation period for his claim started when he received an expert medical report, rather than the date of the accident, which occurred more than three years before the report.
In agreeing with the plaintiff that the limitation period started upon receipt of the report and dismissing the motion, the court held that the plaintiff’s reliance on evidence already put forward by the defendant, and not filing any responding material of his own, still satisfied his obligations under the Rules of Civil Procedure, thereby allowing his claim to proceed to trial.
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