Robert Findlay

Following successful summary judgment motions dismissing a motor vehicle accident action as statute‑barred, the defendants sought costs of the action.

The plaintiff had commenced the claim approximately eleven years after the accident and the court previously found she had not exercised due diligence under the discoverability principles governing limitation periods.

In this costs decision, the court applied s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure.

Finding no misconduct or exceptional circumstances justifying a departure from the default rule that costs follow the event, the court declined to award substantial indemnity but fixed costs on a partial indemnity basis.

The defendants were awarded their requested partial indemnity costs as fair and reasonable in the circumstances.

The defendants brought summary judgment motions seeking dismissal of a motor vehicle accident claim on the basis that the action was commenced outside the limitation period under the Limitations Act.

The plaintiff issued the claim nearly nine years after the accident and argued that discoverability did not arise until later diagnostic imaging revealed more serious injuries.

The court held that the plaintiff had ongoing and worsening symptoms for many years and failed to exercise due diligence in investigating the possibility of a serious and permanent impairment.

Applying the discoverability principles and relevant appellate authority, the court concluded that a reasonable person would have investigated the injuries much earlier.

The claim was therefore statute‑barred and summary judgment was appropriate.