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 after the accident, Ms. Bloom reported "severe headaches." Having faint regard for an injury does not mean that the plaintiff will know that a legal action is the best way of proceeding, or whether it is an avenue of remedy at all.However, once things progress beyond the de minimis range, reasonable due diligence is to be exercised. Failure to discharge this duty of diligence will result in no pause in the limitation period.

Winter 2008 Moot Problem at para 5.

Blair v Barrie (2006), 28 MPLR (4th) 107 (WLCan) at paras 6-7(Sup Ct J).

[14]The earliest possible time that the limitation period in this case can be said to commence running is the date following her December 2006 exams when Ms. Bloom revisited her doctor, which led to the receipt of a specialist's opinion. It was during her December 2006 exams that Ms. Bloom's original injuries (either alone or combined with school-related stress) flared up sufficiently to escalate the symptoms to a point where one might consider her claim "discoverable."At that point, Ms. Bloom discharged her duty to get to the bottom of the injury, finally equipped with proper information and symptoms to pursue the claim.

Winter 2008 Moot Problem at para 6.

Miller v. Bacchus (1999), 47 MVR (3d) 154 at paras 25-27 (WLCan) (Sup Ct J).

b) The nature of the injury and presence of stress masked discoverability

[15] As a university student, Ms. Bloom was subject to stress, which can cause headaches on its own.Moreover, physical evidence of her injury was only found when she was examined by a specialist.The specialist also suggested that her symptoms were aggravated by stress.These circumstances made precise discoverability difficult.

Winter 2008 Moot Problem at para 6.

[16] The combination of causes (stress and injury) that contributed to Ms. Bloom's headaches introduces significant ambiguity into whether and when Ms. Bloom knew of an actionable claim.This ambiguity should not be dealt with by a motion to dismiss the action.

Munshaw v Economical Mutual Insurance Co (2007), 45 MVR (5th) 111, 48 CCLI (4th) 43 at paras 13-16 (Sup Ct J).

There exist genuine issues of fact to be determined at trial

[17] In the case law surrounding the discoverability issue in relation to whether limitations periods will statute-bar a claim, one important factor is the existence of issues of fact to be determined at trial.It has been said that "findings of fact are crucial to a determination regarding whether P knew that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it."

B (K) v O(T), 2005 CarswellOnt 5136 (WLCan) at para 24 (Sup Ct J).

[18]This ambiguity may be caused by conflicting evidence, among other things.In this case, there is a conflict arising from the nature of the two very different medical opinions obtained by Ms. Bloom at two different times.There is also conflict in relation to whether the symptoms were immediately present after the accident or whether they lay dormant for a time. This causation issue deserves serious scrutiny.

B (K) v O(T), ibid at para 10.

Peixeiro v Haberman, [1997] 3 SCR 549 at paras 38-43.

[19]It is respectfully submitted that because there are genuine issues of fact relating to when Ms. Bloom knew or ought to have known that the September 22, 2005 accident was the cause of the injuries at issue in this proceeding, the claim should not be dismissed.Rather, the court should have the opportunity to undertake a full examination of these issues.

B (K) v O(T), ibid.

[20]Statutes of limitation are not intended to apply in a manner that precludes injured parties who diligently pursue claims from seeking justice. It would be fundamentally unfair to require Ms. Bloom to commence her action before she could reasonably have discovered that she had a cause of action.

Peixeiro v Haberman, supra at para 39.

PART IV - RELIEF REQUESTED

[21]The Plaintiff, Yanik Bloom, respectfully requests:

(1)an Order dismissing the motion; and

(2)an Order granting the Plaintiff costs on a partial indemnity basis.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 20^th day of

December, 2007.

________________________

YZ

Counsel for the

Plaintiff (Responding Party)

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 after the accident, Ms. Bloom reported "severe headaches." Having faint regard for an injury does not mean that the plaintiff will know that a legal action is the best way of proceeding, or whether it is an avenue of remedy at all.However, once things progress beyond the de minimis range, reasonable due diligence is to be exercised. Failure to discharge this duty of diligence will result in no pause in the limitation period.

Winter 2008 Moot Problem at para 5.

Blair v Barrie (2006), 28 MPLR (4th) 107 (WLCan) at paras 6-7(Sup Ct J).

[14]The earliest possible time that the limitation period in this case can be said to commence running is the date following her December 2006 exams when Ms. Bloom revisited her doctor, which led to the receipt of a specialist's opinion. It was during her December 2006 exams that Ms. Bloom's original injuries (either alone or combined with school-related stress) flared up sufficiently to escalate the symptoms to a point where one might consider her claim "discoverable."At that point, Ms. Bloom discharged her duty to get to the bottom of the injury, finally equipped with proper information and symptoms to pursue the claim.

Winter 2008 Moot Problem at para 6.

Miller v. Bacchus (1999), 47 MVR (3d) 154 at paras 25-27 (WLCan) (Sup Ct J).

b) The nature of the injury and presence of stress masked discoverability

[15] As a university student, Ms. Bloom was subject to stress, which can cause headaches on its own.Moreover, physical evidence of her injury was only found when she was examined by a specialist.The specialist also suggested that her symptoms were aggravated by stress.These circumstances made precise discoverability difficult.

Winter 2008 Moot Problem at para 6.

[16] The combination of causes (stress and injury) that contributed to Ms. Bloom's headaches introduces significant ambiguity into whether and when Ms. Bloom knew of an actionable claim.This ambiguity should not be dealt with by a motion to dismiss the action.

Munshaw v Economical Mutual Insurance Co (2007), 45 MVR (5th) 111, 48 CCLI (4th) 43 at paras 13-16 (Sup Ct J).

There exist genuine issues of fact to be determined at trial

[17] In the case law surrounding the discoverability issue in relation to whether limitations periods will statute-bar a claim, one important factor is the existence of issues of fact to be determined at trial.It has been said that "findings of fact are crucial to a determination regarding whether P knew that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it."

B (K) v O(T), 2005 CarswellOnt 5136 (WLCan) at para 24 (Sup Ct J).

[18]This ambiguity may be caused by conflicting evidence, among other things.In this case, there is a conflict arising from the nature of the two very different medical opinions obtained by Ms. Bloom at two different times.There is also conflict in relation to whether the symptoms were immediately present after the accident or whether they lay dormant for a time. This causation issue deserves serious scrutiny.

B (K) v O(T), ibid at para 10.

Peixeiro v Haberman, [1997] 3 SCR 549 at paras 38-43.

[19]It is respectfully submitted that because there are genuine issues of fact relating to when Ms. Bloom knew or ought to have known that the September 22, 2005 accident was the cause of the injuries at issue in this proceeding, the claim should not be dismissed.Rather, the court should have the opportunity to undertake a full examination of these issues.

B (K) v O(T), ibid.

[20]Statutes of limitation are not intended to apply in a manner that precludes injured parties who diligently pursue claims from seeking justice. It would be fundamentally unfair to require Ms. Bloom to commence her action before she could reasonably have discovered that she had a cause of action.

Peixeiro v Haberman, supra at para 39.

PART IV - RELIEF REQUESTED

[21]The Plaintiff, Yanik Bloom, respectfully requests:

(1)an Order dismissing the motion; and

(2)an Order granting the Plaintiff costs on a partial indemnity basis.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 20^th day of

December, 2007.

________________________

YZ

Counsel for the

Plaintiff (Responding Party)

Oral Arguments for the both sides.