C.L. Spry

This is a costs endorsement following an appeal where the appellants successfully set aside a finding that a revenue misrepresentation claim was encompassed within the original statement of claim, thereby preserving a Limitations Act defence.

Both parties claimed to be the successful party and sought costs of $20,000.

The court found that success was divided, as the appellants did not get the claim dismissed but did preserve a significant defence.

The court awarded the appellants $10,000 for the appeal and $1,500 for costs submissions, and ordered each party to bear their own costs for the motion below.

The appellants appealed an Associate Judge's decision granting the respondent leave to amend its Statement of Claim to add a revenue misrepresentation claim arising from a share purchase agreement.

The Divisional Court allowed the appeal in part, finding the Associate Judge erred in law by relying on discovery evidence to conclude the amendment was not a new cause of action.

However, the court upheld the Associate Judge's alternative finding that the discoverability of the claim under the Limitations Act involved factual disputes that must be resolved at trial.

The respondent was permitted to amend its claim, but the appellants were granted leave to plead a limitations defence.