Americo Fernandes

The moving party brought a motion for leave to appeal an order dated December 2, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The appellant appealed a motion judge's decision that permitted it to file a third amended statement of claim but precluded it from referring to five prior shipments or claiming damages in respect of those shipments.

The motion judge found that the limitation period had expired for the five prior shipments and that this constituted uncompensable prejudice, thus barring the amendment.

The Court of Appeal upheld the decision, rejecting the appellant's arguments that the limitation period applies only to unrelated statute-barred claims and that new claims cannot be added to a claim already commenced.

The plaintiff sought leave to amend its statement of claim to reintroduce damages related to five shipping containers, which had been struck by a consent order five years earlier.

The defendant opposed the amendment, arguing the limitation period had expired, constituting non-compensable prejudice, and that the amendment was an abuse of process and barred by issue estoppel.

The court found that while the amendment was not an abuse of process or barred by issue estoppel, the expiration of the limitation period created non-compensable prejudice.

The motion for leave to amend was dismissed.

An elector brought an application under the Municipal Conflict of Interest Act alleging that a municipal councillor failed to declare a pecuniary interest when voting on resolutions increasing municipal employee wages, which affected her spouse’s salary as fire chief.

The court held that the councillor had an indirect pecuniary interest through her spouse and breached s. 5(1) of the Act by participating in the votes.

The statutory exception for members of a volunteer fire brigade did not apply because the councillor herself was not a member of the brigade.

The court rejected the defence of inadvertence and found that the councillor had not exercised due diligence in identifying the conflict.

A penalty was imposed disqualifying the councillor from serving on council for six years.