Sirotek v. O’Dea contains terrifically clear guidance from the Divisional Court on the potential outcomes of an amendment motion opposed on the basis of a limitations defence. The key point is that when the court grants leave to amend because the new claim is timely, that finding must be included in the formal order:
[5] Where a claim is dismissed on the basis of a limitations defence, the result is a final order, appealable as of right. No motion for leave to appeal is required.
[6] Where a motion to amend is granted on the basis that there is no genuine issue of fact and law in dispute that could result in a limitations defence succeeding, the result is again a final order, appealable as of right. No motion for leave to appeal is required: the limitations issue has been decided against the defendant on a final basis.
[7] Where a motion for leave to amend a claim is granted on the basis that there remain genuine issues of fact and law in dispute as to whether a limitation defence is available, or where summary judgment is dismissed on the basis that there is a triable issue in respect to a limitations defence, then the order is interlocutory, and the appeal lies to this court with leave.
[8] It is axiomatic that an appeal is taken from the impugned order and not from the reasons given for making the order. In the context of a motion involving a limitations argument, where the order does not finally dispose of a limitations defence, then the order is interlocutory and the limitations defence is available to the defendant at trial. The trial judge is not bound by the views of the motions judge on the limitations argument (if any). Appeal rights on the final disposition of a limitations defence accrue when a final disposition is ordered.
[9] An argument advanced on this motion for leave to appeal is that the motion judge erred in law in finding that the proposed amendments do not include new causes of action. In fact, he made no such finding. His decision therefore does not, as the moving parties assert, “in effect create a new carve-out in the application of the Limitation Act”.
[10] Rather, the order from which leave is sought to appeal grants a pleading amendment without reference to a limitations defence. While it is always preferable for the parties to address with the court whether the order is made without prejudice to a limitation defence being pleaded and raised at trial, where this is not done, it does not automatically follow that the limitation defence has been finally disposed of.
