Justice Kurke’s decision in Trudeau v. Cavanagh has a helpful summary the principles of the presumption of prejudice arising from an expired limitation period:
[24] A presumption of prejudice arises if the amendment is sought after the expiration of a relevant limitation period. This presumption will be determinative unless the moving party can demonstrate, on the facts of the case, that there exist special circumstances to rebut the presumption that the responding party will suffer prejudice from the loss of a remedy as a result of the expiration of a limitation period: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3 (CanLII), 88 O.R. (3d) 401 (C.A.), at paras. 17, 22, 28; Churly v. Budnick, 1997 CanLII 12260 (ON SC), [1997] O.J. No. 2909 (Master’s Ct.), at paras. 31, 34.
[25] On the other hand, a court need not give effect to prejudice that may occur to a responding party that has arisen because of the responding party’s own failure to do something it reasonably could or ought to have done. Thus, where prejudice is said to arise from expiration of a limitation period, if the responding party could or should have taken steps itself within the time frame of the limitation period, but failed to do so, it cannot complain of prejudice if the moving party seeks amendment after the limitation period has run. Such “self-created prejudice” displaces the presumption: 2054509 Ontario Ltd. v. Corrent, [2012] O.J. No. 5810 (Master’s Ct.), at paras. 35-37; Desjardins v. Mooney, [2001] O.J. No. 697 (Sup. Ct.), at para 21; and cf. Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), 46 O.R. (3d) 780 (C.A.), at para. 15.
