Whalen v. Hillier

Whalen v. Hillier

The Court held the motions judge had jurisdiction under rules 20.04(2) and (4) to grant summary judgment against the moving defendants and correctly concluded on the medical record that the plaintiff could not reasonably have discovered a s.267.1(2) qualifying injury within the relevant 35-day period, so there was no genuine issue for trial on the limitation defence and summary judgment for the plaintiffs was proper.

Citation
C33974
Parties
Plaintiff (respondent): John W. Whalen; Plaintiff (respondent): Jennifer Jean Arrand; Defendant (appellant): William Hillier a.k.a. Bill Carrol; Defendant (appellant): Shelley Rastin; Defendant (respondent): Pensa & Associates
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 March 2001
Procedural Posture
Civil Appeal / Appeal From Motion for Summary Judgment in Court of Appeal
Outcome
Appeal dismissed with costs
Legal Topics
Summary Judgment, Limitations Period, Discoverability, Statutory Interpretation, Rule 20.04 Jurisdiction
Source Language
English
Civil Procedure Insurance Law Tort Law Limitation Summary Judgment Limitations Period Discoverability Statutory Interpretation +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

John W. Whalen

Plaintiff (respondent)

Jennifer Jean Arrand

Plaintiff (respondent)

William Hillier a.k.a. Bill Carrol

Defendant (appellant)

Shelley Rastin

Defendant (appellant)

Pensa & Associates

Defendant (respondent)

Procedural Posture

Civil Appeal / Appeal From Motion for Summary Judgment in Court of Appeal

Legal Issues

  1. 1 Whether the motions judge erred by granting summary judgment to the plaintiffs on a motion brought by the defendants
  2. 2 Whether the motions judge applied the correct statutory standard under s.267.1(2) of the Insurance Act
  3. 3 Whether there was a genuine issue for trial as to when the plaintiff discovered or ought to have discovered the qualifying injury

Ratio Decidendi

The Court held the motions judge had jurisdiction under rules 20.04(2) and (4) to grant summary judgment against the moving defendants and correctly concluded on the medical record that the plaintiff could not reasonably have discovered a s.267.1(2) qualifying injury within the relevant 35-day period, so there was no genuine issue for trial on the limitation defence and summary judgment for the plaintiffs was proper.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs
  • Motion judge's grant of summary judgment on the limitation issue in favour of the plaintiffs upheld