Toronto civil litigator Patrick Summers says a recent decision raises tactical questions around bringing motions for summary judgments.
In Zhu v. Matadar, 2015 ONSC 178 (CanLII), the plaintiff, Tie Hong Zhu, was injured in a motor vehicle accident that occurred in 2007 and she commenced her action against the defendants, Mohmed Arif Matadar and Musa Vali, two years and 21 days after the accident. The defendants brought a summary judgment motion to have the plaintiff’s claim dismissed as barred by the Limitations Act, 2002, S.O. 2002, c. 24.
Justice Paul Perell dismissed the defendants’ summary judgment claim, and then turned the tables on the defendant and awarded the plaintiff partial summary judgment, dismissing the limitation defence of the defendant "notwithstanding" that the plaintiff "did not bring a cross-motion for summary judgment."