Ontario: adding a plaintiff to a proceeding after the limitation period’s presumptive expiry


The Superior Court decision in Scalabrini v. Khan holds that the test for adding a plaintiff to a proceeding after the presumptive expiry of the limitation period is the same as adding a defendant:

[8]               The respondents argued that the test in Morrison is not applicable to a case such as this one where it is a plaintiff rather than defendant for whom leave is sought to be added. I see no basis for applying a different limitations test for leave to add a plaintiff than for leave to add a defendant. However, I do see a difference in the required findings and proof that would be needed to support a decision to deny leave to add a plaintiff (or defendant) on limitation grounds than would be needed to grant leave in the face of a limitations argument. If the master in this case had decided that Cinzia’s claims were statute barred and could not proceed, the Court of Appeal’s directive in Morrison that there be a finding that her claims had been discovered more than two years before the motion was brought makes sense because that decision would put an end to her claims.