{"id":1209,"date":"2021-12-31T13:51:08","date_gmt":"2021-12-31T17:51:08","guid":{"rendered":"http:\/\/limitations.ca\/?p=1209"},"modified":"2021-12-31T13:51:08","modified_gmt":"2021-12-31T17:51:08","slug":"ontario-divisional-court-on-the-outcomes-of-an-amendment-motion","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1209","title":{"rendered":"Ontario: Divisional Court on the outcomes of an amendment motion"},"content":{"rendered":"

Sirotek v. O\u2019Dea<\/em><\/a>\u00a0contains terrifically clear guidance from the Divisional Court on the potential outcomes of an amendment motion opposed on the basis of a limitations defence.\u00a0 The key point is that when the court grants leave to amend because the new claim is timely, that finding\u00a0must be\u00a0included in the formal order:<\/p>\n

\n
\n

[<\/a>5]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Where a claim is dismissed on the basis of a limitations defence, the result is a final order, appealable as of right.\u00a0 No motion for leave to appeal is required.<\/p>\n<\/blockquote>\n<\/div>\n

\n
\n
<\/div>\n

[<\/a>6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0Where 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.\u00a0 No motion for leave to appeal is required: the limitations issue has been decided against the defendant on a final basis.<\/p>\n<\/div>\n

\n
<\/div>\n

[<\/a>7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Where 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.<\/p>\n<\/div>\n

\n
<\/div>\n

[<\/a>8]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0It is axiomatic that an appeal is taken from the impugned order and not from the reasons given for making the order.\u00a0 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.\u00a0 The trial judge is not bound by the views of the motions judge on the limitations argument (if any).\u00a0 Appeal rights on the final disposition of a limitations defence accrue when a final disposition is ordered.<\/p>\n<\/div>\n

\n
<\/div>\n

[<\/a>9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0An 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.\u00a0 In fact, he made no such finding.\u00a0 His decision therefore does not, as the moving parties assert, \u201cin effect create a new carve-out in the application of the\u00a0Limitation Act<\/i>\u201d.<\/p>\n<\/div>\n

\n
<\/div>\n

[<\/a>10]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Rather, the order from which leave is sought to appeal grants a pleading amendment without reference to a limitations defence.\u00a0 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.<\/p>\n<\/div>\n<\/blockquote>\n

\n
\n
<\/div>\n

[<\/a>11]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In the circumstances of this case, it is therefore open to the defendants to plead that defence in response to the amended claim.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Sirotek v. O\u2019Dea\u00a0contains terrifically clear guidance from the Divisional Court on the potential outcomes of an amendment motion opposed on the basis of a limitations defence.\u00a0 The key point is that when the court grants leave to amend because the new claim is timely, that finding\u00a0must be\u00a0included in the formal order: [5]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 … Continue reading Ontario: Divisional Court on the outcomes of an amendment motion<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[297,170,303],"class_list":["post-1209","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-claim","tag-amendments","tag-ontario-divisional-court"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1209","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1209"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1209\/revisions"}],"predecessor-version":[{"id":1211,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1209\/revisions\/1211"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1209"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1209"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1209"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}