Inappropriate to determine limitation period issue before trial

Ontario civil | Civil Procedure

COMMENCEMENT OF PROCEEDINGS

Inappropriate to determine limitation period issue before trial

Plaintiff claimed technician from defendant installed cable television services on behalf of Bell. Technician detached antenna from home in access roof removing shingles. Technician stepped onto roof which created hole. Technician informed plaintiff of minor damages and stated someone would come to repair roof. Technician indicated no water could come in through roof. No repairs were made to roof. Home suffered significant water damage after heavy rainfall. Plaintiff claimed damages arose from flooding incident on date of heavy rainfall. Defendants argued plaintiffs discovered claim on date work was done. Defendant brought motion to strike out statement of claim and dismissing action. It was premature to strike out entire statement of claim and dismiss action on basis action was commenced after applicable two-year limitation period. Full finding of facts was necessary to determine when plaintiff discovered claim. It was inappropriate to determine limitation period issue before trial where discoverability was issue. Statement of claim did not sufficiently advance requisite elements of tort of public nuisance and did not disclose reasonable cause of action. Plaintiff’s damages as pleaded were not special damages for purposes of tort of public nuisance. Plaintiff’s claim for public nuisance was struck out.

 

Whitters v. Furtive Networks Inc. (Apr. 5, 2012, Ont. S.C.J., Stevenson J., File No. CV-11-420068) 217 A.C.W.S. (3d) 283 (7 pp.).

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