create presentation Court File No$.2008$W

OSGOODE

SUPERIOR COURT OF JUSTICE

YANIK BLOOM

Plaintiff

$-$ and $-$

JORDY BARK

Defendant

FACTUM OF THE DEFENDANT, JORDY BARK $($MOVING PARTY$)$

PART I $$ NATURE OF THE MOTION

$[1]$ The Defendant, Jordy Bark $[$Mr$.$ Bark$],$ brings this motion seeking to have the action of the Plaintiff, Yanik Bloom $[$Ms$.$ Bloom$],$ dismissed on the basis that the two year limitation period applicable to tort actions in Ontario pursuant to the Limitations Act, $2002,$ has expired. The Defendant submits that the Plaintiff knew or reasonably ought to have known that she had a claim against him on the date of the accident in question, and that by not pursuing the claim within two years after that date, the law has proscribed her action and it is now statute$-$barred.

PART II $$ FACTS

$[2]$ On September $22,2005,$ Mr$.$ Bark was engaged as a riding instructor to Ms$.$ Bloom. When Ms$.$ Bloom arrived for her riding lesson on that day, Mr$.$ Bark told her to warm up her horse in preparation for the lesson.

Winter $2008$ Moot Problem at para $1.$

$[3]$ Due to a lack of proper equipment, and before Mr$.$ Bark could remedy the situation, the horse Ms$.$ Bloom was riding became out of control.

Winter $2008$ Moot Problem at para $2.$

$[4]$ Mr$.$ Bark instructed Ms$.$ Bloom to perform an emergency dismount. In performing the dismount, Ms$.$ Bloom struck her head on the ground.

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

$[5]$ Ms$.$ Bloom alleges that immediately after the accident, she experienced pain in her jaw, and a terrible headache. Ms$.$ Bloom 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 $4.$

$[6]$ Ms$.$ Bloom indicates that approximately one week after the accident, her jaw pain receded. She admits, however, that she continued to experience headaches following the accident.

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

$[7]$ Ms$.$ Bloom indicates that she experienced "severe headaches" in December $2006.$ She sought advice from her doctor, commenting to the doctor that the headaches started at the time of her riding fall. Dr$.$ Feelright referred Ms$.$ Bloom to a specialist, Dr$.$ Bonett, who she saw in July $2007.$

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

$[8]$ Dr$.$ Bonett performed extensive tests, the results of which came back August $15,2007.$ These results showed that Ms$.$ Bloom had a hairline fracture at the base of her skull. The fracture was consistent with the type of injury that Ms$.$ Bloom could have sustained in the $2005$ accident.

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

$[9]$ Ms$.$ Bloom commenced the herein action against Mr$.$ Bark on September $29,2007$ more than two years after the September $22,2005$ riding accident that led to the injuries she allegedly sustained.

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

PART III $-$ LAW AND ARGUMENT

$[10]$ The Limitiations Act, $2002$ establishes that the basic limitation period for claims of this nature is two years, running from the day when the claim is discovered.

Limitations Act, $2002,$ SO $2002,$ c $24,$ Sched B$,$ s $4[$Act$].$

$[11]$ In particular, s $5(1)($b$)$ of the Act provides that the limitation period is to run from $$the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to$$ in the claim.

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

$[12]$ Jurisprudence has established factors that might delay the commencement of a limitation period. In this case, there is no valid justification for Ms$.$ Bloom$$s failure to commence this action within the two year limitation period prescribed by the Act.

Only the source of the claim need be known, not the extent of the injury

a$)$ Knowledge of the cause of injury

$[13]$ The source of this claim is the riding accident that occurred on September $22,2005.$

Winter $2008$ Moot Problem at paras $1-3.$

$[14]$ Ms$.$ Bloom has alleged that immediately after her fall during the emergency dismount on September $22,2005,$ she experienced intense pain. However, she reports experiencing no unconsciousness or concussion $($or anything similarly disorienting$)$ on the day of accident. In other words, there were no symptoms that would have obscured a potential claim. Based on the events of that day, a reasonable person would have known that the date of accident would be the logical source for the claim.

Winter $2008$ Moot Problem at paras $3-4.$

b$)$ Medical opinion and realization of injury

$[15]$ Counsel for Ms$.$ Bloom may argue that she did not fully realize the claim until the time she had a complete $($specialist$)$ medical opinion, which she did not seek and$/$or receive until $2007.$ However, it has been established at law that $$it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In such instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitati