This action arises from the alleged improper selection, design, and installation of a steam boiler at Sunnybrook Hospital. The boiler was installed in 2012, and the action was commenced in 2017. The defendants brought a summary judgment motion for dismissal of the action on the basis that it was barred due to the limitation period having expired. Sunnybrook argued in response that it could not have discovered the claim until receipt of an expert report, and that the claim was brought in time on that basis. Justice Vella dismissed the motion, holding that there was a genuine issue for trial. In support of their motion the defendants had put forth a single affidavit by one of the defence counsel, with attached documents that were intended to speak for themselves. The plaintiff put forward affidavit evidence from its Director of Plant Operations, its engineering expert, and a law clerk from its counsel’s firm. In failing to submit affidavits from those with direct knowledge, and instead relying on a solicitor’s affidavit, the defendants did not put their best foot forward and were shielded from cross examination. On the other hand there was credible evidence from the plaintiff that there were genuine issues requiring a trial on the limitation issue.
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