When a plaintiff seeks to add a party defendant, must the motion be heard prior to the expiry of the limitation period?
According to Justice Edwards in Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 (S.C.J.), the motion must be served, but not necessarily heard, prior to the expiry of the limitation period. Justice Edward held that the suggestion that a motion to add a party must be served, argued and a court order obtained prior to the expiry of the limitation period was "lacking in common sense". There are lengthy delays in obtaining motion dates and the moving party is therefore "very much in the hands of the court" as to whether the motion can be argued and disposed of within the limitation period.
In making his decision, Justice Edwards followed the Divisional Court in Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.), where the plaintiff was permitted to add a claim for conspiracy, and declined to follow Marks v. Ottawa, 2013 ONSC 1089 (S.C.J.) where the Court refused to permit the addition of a party where the motion had not been heard prior to the expiry of the limitation period.
Tampilkan postingan dengan label Adding Parties. Tampilkan semua postingan
Tampilkan postingan dengan label Adding Parties. Tampilkan semua postingan
Rabu, 15 Januari 2014
Rabu, 10 Oktober 2012
Motion to Add Municipal Defendant Dismissed
A motion to add a municipality as a defendant was recently dismissed.
In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment. The notes were ultimately received in 2010 when a follow up request was made. They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.
Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.
This decision is a good example of the maxim that limitation periods are not enacted to be ignored. The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.
In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment. The notes were ultimately received in 2010 when a follow up request was made. They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.
Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.
This decision is a good example of the maxim that limitation periods are not enacted to be ignored. The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.
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