Court File No$.2008$W

OSGOODE

SUPERIOR COURT OF JUSTICE

YANIK BLOOM

Plaintiff

$-$ and $-$

JORDY BARK

Defendant

FACTUM OF THE PLAINTIFF, YANIK BLOOM $($RESPONDING PARTY$)$

PART I $$ NATURE OF THE MOTION

$[1]$ This is a motion brought by the Defendant, Jordy Bark $[$Mr$.$ Bark$],$ for a dismissal of the action of the Plaintiff, Yanik Bloom $[$Ms$.$ Bloom$],$ on the basis that the two$-$year limitation period applicable to tort actions in Ontario pursuant to the Limitations Act, $2002,$ has expired. The Plaintiff opposes this motion on the basis that she did not know, and could not have reasonably known, that she had a claim of this nature against him on the date of the accident in question, and that the limitation period has not expired.

PART II $$ FACTS

$[2]$ Mr$.$ Bark was, on September $22,2005,$ engaged as a riding instructor to Ms$.$ Bloom, and he instructed Ms$.$ Bloom on that day to warm up her horse prior to giving her a riding lesson. Ms$.$ Bloom, having mounted her horse bareback, was not immediately instructed by Mr$.$ Bark to cease riding until she had saddled the horse properly and attached its bridle.

Winter $2008$ Moot Problem at paras $1-2.$

$[3]$ The horse escaped Ms$.$ Bloom$$s control and she was forced to perform an emergency dismount. During the dismount, she struck her head on the ground.

Winter $2008$ Moot Problem at para $3.$

$[4]$ After the accident, Ms$.$ Bloom experienced a headache and pain in her jaw. She visited her doctor, Dr$.$ Feelright, on September $25,2005.$ Dr$.$ Feelright examined Ms$.$ Bloom and found no broken bones.

Winter $2008$ Moot Problem at para $4.$

$[5]$ Approximately a week after the accident, Ms$.$ Bloom$$s jaw pain receded, and though she suffered headaches afterward, Ms$.$ Bloom attributed these headaches to stress associated with her university studies.

Winter $2008$ Moot Problem at para $4.$

$[6]$ Ms$.$ Bloom continued to lease and ride her horse subsequent to the accident.

Winter $2008$ Moot Problem at para $5.$

$[7]$ After experiencing severe headaches during her exams in December $2006,$ Ms$.$ Bloom sought advice from her doctor, who referred her to a specialist, Dr$.$ Bonett.

Winter $2008$ Moot Problem at paras $5-6.$

$[8]$ Ms$.$ Bloom was only able to see Dr$.$ Bonett in July $2007.$ Dr$.$ Bonett performed extensive tests. The test results, which came back on August $15,2007,$ showed that Ms$.$ Bloom had a hairline fracture at the base of her skull; this damage was consistent with her $2005$ accident. She was informed that the headaches were caused by this facture, and that she was likely to experience the headaches for life, particularly during times of stress.

Winter $2008$ Moot Problem at para $6.$

$[9]$ Shortly after receiving the test results, Ms$.$ Bloom sought the advice of a lawyer. She met with her lawyer on September $24,2007$; a statement of claim was filed on her behalf on September $29,2007.$

Winter $2008$ Moot Problem at para $7.$

PART III $-$ LAW AND ARGUMENT

$[10]$ The Limitations Act, $2002$ provides a basic proscription of claims older than two years. However, a key to properly applying limitation periods is to assess the proper date from which the limitation period is to run. Section $5(1)($b$)$ of the Act provides that the commencement date for the limitation period is $$the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to$$ in the claim.

Limitations Act, $2002,$ SO $2002,$ c $24,$ Sched B$,$ s $5(1)($b$)[$Act$].$

$[11]$ While the Act as a whole seems to be grounded in an objective standard, s $5(1)($b$)$ injects subjectivity into the analysis by adding discretion respecting the assessment of the $$discoverability$$ of the claim. In this case, because Ms$.$ Bloom was acting reasonably within her abilities and circumstances, the limitation period for this claim did not commence running on the day of the accident. In the alternative, there was sufficient reason to pause the running of the limitation period.

Act, ibid, s $5(1)($b$).$

The discoverability was confounded by stress symptoms and masked by late onset

a$)$ The original injury was of a minor $($de minimis$)$ nature for a year after the accident

$[12]$ After the accident, the Plaintiff was engaged in academic studies at university. Academic pressure can cause many stress$-$related symptoms, including headaches, the primary symptom of Ms$.$ Bloom$$s long$-$term injury. In fact, it is possible that some of her headaches were caused in large part by stress. For over a year, the headaches were not particularly serious, as evidenced by her continued efforts in leasing and riding the horse. While contradictory acts may negatively affect the reliability of a plaintiff$$s evidence when it comes to advancing claims that have run over a longer period than the standard limitations$,$ there are no such contradictory acts in this case.

Winter $2008$ Moot Problem at paras $4-5.$

D$($C$)$ v D$($R$),2006$ CarswellOnt $3480($WLCan$)($Sup Ct J$).$

$[13]$ In December $2006,$ more than a year