Esther Cantor

Following an appeal that set aside an order extending limitation periods but adjourned the issues to trial, all parties sought costs.

The Court of Appeal determined that the respondents were substantially successful because they defeated the appellants' motion for summary judgment and maintained their position that the limitation issues should be decided at trial.

The respondents were awarded costs of $15,000 on a partial indemnity basis.

The deceased was struck and killed by two motorists while walking on a highway after becoming intoxicated at a college event.

The deceased's family commenced an action under the Family Law Act more than three years after the accident.

The motion judge extended the two-year limitation period under s. 2(8) of the Family Law Act and applied the discoverability rule.

The Court of Appeal allowed the defendants' appeal, holding that the plaintiffs' unawareness of the limitation period did not postpone it, and that whether the requirements of s. 2(8) and the discoverability rule were met should be determined at trial rather than on a motion.