Mohamed Doli

The defendants brought a motion for summary judgment to strike portions of the plaintiff's Amended Statement of Claim.

The plaintiff's action was a product liability claim for damages following a vehicle crash.

The defendants argued that the amended portions, which introduced a defective ETCS-1 throttle control system module as the cause of the crash, constituted a new cause of action asserted after the two-year limitation period.

The court found that the module defect was indeed a new cause of action, not merely a particular of the original claim.

The plaintiff failed to demonstrate that she could not have discovered the module defect through due diligence prior to the expiry of the limitation period, especially given her membership in a class proceeding where such issues were discussed.

Consequently, the motion was granted, and all portions of the Amended Statement of Claim referencing the module defect were struck.

The defendant brought a motion for leave under Rule 48.04 to compel the plaintiff to re-attend for a further examination for discovery and to permit examination on all events since the last discovery.

The action arose from a motor vehicle accident in 2005, with discovery in 2011 and the action set down for trial in 2015.

The court found the evidentiary basis for the motion, an affidavit by an articling student, problematic due to reliance on hearsay regarding the plaintiff's alleged employment change.

The defendant failed to demonstrate a "substantial or unexpected change in circumstances" or that refusing leave would be "manifestly unjust," as required by Rule 48.04(1).

The motion was dismissed, with the court also noting deficiencies in the motion record, including the absence of tax returns and discovery undertakings.