Final Bloom v. Bark - Responding Party Factum
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Court File No. xxxxW
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]
Defendant Jordy Bark [referred to as "Mr. Bark"] has filed a motion seeking to
dismiss Plaintiff Yanik Bloom's claim on the grounds of the expired two-year limitation
period for tort actions in Ontario, as per the Limitations Act, 2002. Ms. Bloom contests
this motion, asserting that she was unaware and could not have reasonably known about
her claim against Mr. Bark at the time of the accident in question, thus arguing that the
limitation period has not lapsed.
PART II – FACTS
[2]
On September 22, 2005, Mr. Bark was hired as a riding instructor for Ms. Bloom.
On that day, he directed Ms. Bloom to warm up her horse before her riding lesson. Ms.
Bloom, while riding bareback, wasn't immediately told by Mr. Bark to stop until she had
properly saddled the horse and put on its bridle.
Winter 2008 Moot Problem
at paras 1-2.
[3]
The horse got out of Ms. Bloom’s control, leading her to execute an emergency
dismount. In the process, she hit her head on the ground.
Winter 2008 Moot Problem
at para 3.
[4]
Following the incident, Ms. Bloom suffered from a headache and jaw pain.
Seeking medical attention, she consulted Dr. Feelright on September 25, 2005. After
examination, Dr. Feelright confirmed no presence of broken bones in Ms. Bloom's
condition.
Winter 2008 Moot Problem
at para 4.
[5]
Around a week following the accident, Ms. Bloom's jaw pain lessened. Despite
experiencing subsequent headaches, she linked these headaches to the stress related to her
university studies.
Winter 2008 Moot Problem
at para 4.
[6]
After the accident, Ms. Bloom persisted in leasing and riding her horse.
Winter 2008 Moot Problem
at para 5.
[7]
Experiencing severe headaches during her exams in December 2006, Ms. Bloom
consulted her doctor for advice. Following this, her doctor referred her to a specialist, Dr.
Bonett.
Winter 2008 Moot Problem
at paras 5-6.
2
[8]
Ms. Bloom's appointment with Dr. Bonett was delayed until July 2007. Dr. Bonett
conducted thorough tests, and the results, received on August 15, 2007, revealed a
hairline fracture at the base of Ms. Bloom's skull. This fracture was consistent with the
injury sustained in her 2005 accident. She was informed that her headaches were a result
of this fracture and that she was likely to endure them for life, especially during stressful
periods.
Winter 2008 Moot Problem
at para 6.
[9]
Soon after receiving the test results, Ms. Bloom consulted a lawyer. Their meeting
took place on September 24, 2007, and a statement of claim was filed on her behalf by
September 29, 2007.
Winter 2008 Moot Problem
at para 7.
PART III - LAW AND ARGUMENT
[10]
The Limitations Act, 2002 establishes a fundamental restriction on claims beyond
a two-year timeframe. Yet, a crucial aspect in enforcing limitation periods involves
determining the precise starting point for these limitations. Section 5(1)(b) of the Act
stipulates that the commencement date for the limitation period is "the day on which a
reasonable person, possessing the capabilities and in the circumstances similar to the
individual with the claim, should have initially become aware of the relevant aspects
mentioned in the claim."
Limitations Act, 2002,
SO 2002, c 24, Sched B,
s 5(1)(b)
[“
Act
”]
.
3
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[11]
The Act, overall, operates on an objective basis, but Section 5(1)(b) introduces an
element of subjectivity by allowing discretion in evaluating the "discoverability" of the
claim. In this instance, because Ms. Bloom acted reasonably within her capabilities and
situation, the limitation period for this claim did not begin on the day of the accident.
Alternatively, there were valid grounds to suspend the commencement 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]
Following the accident, the Plaintiff was actively involved in university studies.
Academic stress can induce various stress-related symptoms, including headaches—Ms.
Bloom's main long-term injury symptom. Some of her headaches during this period
might have been largely stress-induced. For more than a year, the headaches didn't pose
significant issues, considering her ongoing engagement in leasing and riding the horse.
While conflicting actions can undermine the credibility of a plaintiff's testimony
regarding claims that extend beyond standard limitations, no such conflicting actions
exist 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, over a year after the accident, Ms. Bloom mentioned
experiencing "severe headaches." Having minimal concern about an injury doesn't
necessarily imply that the plaintiff recognizes legal action as the optimal course or even
4
as a potential remedy. However, once the situation surpasses an insignificant level, it's
expected that reasonable effort and diligence should be exercised. Failing to fulfill this
duty of diligence will lead to no suspension 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 conceivable start date for the limitation period in this case is after Ms.
Bloom's December 2006 exams, when she revisited her doctor, eventually leading to a
specialist's opinion. It was during these exams that Ms. Bloom's initial injuries, possibly
exacerbated by academic stress, escalated to a level where one might deem her claim as
"discoverable." At this juncture, Ms. Bloom fulfilled her obligation to investigate the
injury, armed with accurate information and symptoms necessary 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]
Certainly, as a university student, Ms. Bloom faced stress that, on its own, can
lead to headaches. Furthermore, the physical evidence of her injury was only uncovered
during the specialist examination, which also indicated that her symptoms were
exacerbated by stress. These circumstances significantly complicated the precise
determination of discoverability.
Winter 2008 Moot Problem
at para 6.
[16]
The interplay of factors—stress and injury—contributing to Ms. Bloom's
headaches creates considerable uncertainty regarding when she became aware of an
actionable claim. This ambiguity shouldn't be addressed through a motion to dismiss the
5
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 legal context regarding discoverability and the potential statute-bar of
claims due to limitations periods, a crucial factor is the presence of factual matters to be
decided during the trial. It's been emphasized that "findings of fact are essential in
determining whether the individual knew, considering the nature of the injury, loss, or
damage, that initiating legal proceedings would be an appropriate approach to seek
remedy."
B (K) v O(T)
, 2005 CarswellOnt 5136 (WLCan) at para 24 (Sup Ct J).
[18]
The ambiguity can stem from various factors, including conflicting evidence. In
this case, a conflict arises from the stark contrast between the two distinct medical
opinions obtained by Ms. Bloom at different times. Additionally, there's disagreement
regarding whether the symptoms emerged immediately after the accident or remained
latent for a period. This causation issue demands thorough examination and scrutiny.
B (K) v O(T), ibid
at para 10.
Peixeiro v Haberman
, [1997] 3 SCR 549 at paras 38-43.
[19]
It's respectfully argued that due to the existence of genuine factual uncertainties
concerning when Ms. Bloom became aware or should have become aware that the
September 22, 2005 accident caused the injuries central to this case, the claim should not
be dismissed outright. Instead, the court should have the chance to thoroughly investigate
and analyze these issues.
B (K) v O(T)
,
ibid.
6
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[20]
Statutes of limitation aren't meant to prevent injured parties who actively pursue
their claims from seeking justice. It would be inherently unfair to demand Ms. Bloom to
initiate her action before reasonably discovering that she had grounds for a legal claim.
Peixeiro v Haberman
,
supra
at para 39.
PART IV – RELIEF REQUESTED
[21]
Yanik Bloom, the Plaintiff, respectfully requests:
- An Order dismissing the motion.
- An Order granting the Plaintiff costs on a partial indemnity basis.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 29
th
day of
November
, 2023
.
________________________
YZ
Counsel for the
Plaintiff (Responding Party)
List of Authorities
LEGISLATION AND REGULATIONS
Limitations Act, 2002,
SO 2002, c 24, Sched B.
JURISPRUDENCE
B (K) v O(T)
, 2005 CarswellOnt 5136 (WLCan) (Sup Ct J).
Blair v Barrie
(2006), 28 MPLR (4th) 107, 153 ACWS (3d) 1087
(Sup Ct J).
D(C) v D(R)
, 2006 CarswellOnt 3480 (WLCan) (Sup Ct J).
Miller v. Bacchus
(1999), 47 MVR (3d) 154 (available on WL Can) (Sup Ct J).
Munshaw v Economical Mutual Insurance Co
(2007), 45 MVR (5th) 111, 48 CCLI (4th)
43 (Sup Ct J)
.
Peixeiro v Haberman
, [1997] 3 SCR 549, 151 DLR (4th) 429.
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