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Summary judgment denied where discoverability and damage apportionment required trial.
The moving defendants sought summary judgment dismissing claims arising from a motor vehicle accident on the basis that the action was commenced outside the two‑year limitation period under the Limitations Act, 2002.
The responding parties argued the claim was not discoverable until medical evidence confirmed that the injuries from the second accident met the statutory threshold and exceeded the deductible under the Insurance Act.
The court held that determining discoverability required a global assessment of injuries from two separate accidents and an apportionment of damages between them to determine whether the deductible for the second accident was exceeded.
These factual determinations required credibility assessments and expert evidence that could not be fairly resolved on a summary judgment motion.
The motion was therefore dismissed and the matter left for determination at trial.
Adjournment of appeal granted on strict terms including posting $332,675 security due to delay.
The respondent requested an adjournment of its appeal to retain new counsel after its previous counsel was removed from the record.
The applicants opposed the adjournment, citing a pattern of delay and concerns about the respondent's solvency, and brought a motion to dismiss the appeal.
The Divisional Court granted the adjournment but imposed strict terms, including making the new hearing date peremptory to the respondent, requiring the respondent to post security of $332,675, and ordering the respondent to pay $5,000 in costs thrown away.
