The plaintiff brought a motion to strike a paragraph of the defendants’ fresh as amended statement of defence asserting that the claim was statute-barred under the limitation period.
The plaintiff argued the issue had already been determined on an earlier motion and that the defendants were estopped from relitigating it.
The court held that it was not plain and obvious that the earlier endorsement constituted a final determination of the limitation issue, particularly given the limited reasons and absence of a formal order.
The court also noted that the plaintiff had taken significant fresh steps in the litigation after the defence was served and had not complied with earlier procedural timelines.
The motion to strike was dismissed, leaving the limitation defence to be determined on a fuller evidentiary record at summary judgment or trial.
