Making the Case

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Ontario Trial Lawyers Association Case Summaries – October 21, 2016

Nga Dang
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Castronovo v. Sunnybrook & Women’s College Health Sciences, 2016 ONSC 6275 (CanLII)

An extension of time to amend a pleading will not always be granted, especially if it will cause undue delay.

Released October 6, 2016 | Full decision [CanLII]

The action was commenced in 2003. The moving defendants were added to the action in 2009. Discoveries occurred in 2011. At the pre-trial conference, Archibald J. ordered that the moving defendants serve the motion to amend the Statement of Defence to add a limitation period defence by June 17, 2016 if instructed to do so.  On October 6, 2016, a week before trial, the moving defendants brought this motion to extend the time to bring the motion to amend.

Myers J. confirmed that the moving defendants did not need leave to bring this motion under Rule 48.04; they did not consent to listing for trial and mere attendance at trial scheduling court was not enough. However, the moving defendants do need leave to extend the time for bringing their motion. Myers J. emphasized that the consent order at pre-trial was a contract, and that Archibald J. was plainly concerned with the risk of losing the trial date and took active steps to protect it. The moving defendants provided no reasons why the motion was not brought prior to the deadline ordered by Archibald J.; the moving defendants took the position that they have a right to amend and that only prejudice to legal rights mattered in this request. Myers J. disagreed, emphasizing that the goal of the civil justice system is to do justice: efficient, affordable justice. Making the action unaffordable or delayed without end is not delivering justice. To allow the amendment which would adjourn the trial date would result in the perception that efficiency and court orders do not matter. Additionally, Myers J. noted that the limitation period defence would likely make plaintiffs’ counsel a key witness and result in the plaintiffs having causes of action against their counsel. As such, the moving defendants should have taken steps on a timely basis. Myers J. noted that there was no amount of money that can compensate the plaintiffs if they were sent back to the drawing board needing to find new counsel at this late date.

Myers J. concluded that the moving defendants have not explained the delay in a satisfactory manner or shown why it is in the interests of justice to grant the extension of time. Myers J. held that a six-month delay of this trial to allow the moving defendants to plead a limitation defence now in these circumstances was unconscionable and amounted to prejudice sufficient to exercise his discretion to decline the indulgence sought. The motion was dismissed.

This post originally appeared on Ontario Trial Lawyers Association Blog on  October 21, 2016. 

The content of this article or blog posting is of a general nature and does not constitute legal advice. It is not intended to be a full or complete analysis of the topic. Before applying the concepts or any content of this article or blog it is imperative that you consult your legal advisor.

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