The defendant sought leave to appeal a motion judge's order that allowed the plaintiffs to add her as a defendant in her personal capacity after the presumptive expiry of the limitation period.
The motion judge had made a final determination that the claim was not discoverable until December 2010, effectively precluding a limitation defence at trial.
The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision to make a final fact-finding determination on discoverability during a gatekeeping motion, and concluding that the scope of a motion judge's power under Rule 5.04 is a matter of general importance.
