J. Zibarras

The applicant in a family law proceeding brought a motion to amend her pleadings to add her spouse's corporation as a third party, seeking repayment of alleged demand loans.

The corporation opposed the motion, arguing that the limitation period had expired because the original family law application constituted a demand for payment.

The court allowed the motion, finding it was not plain and obvious that the original application, which named only the spouse, constituted a clear and unequivocal demand to the corporation itself.

The applicant was permitted to amend her reply to add the corporation as a party.

Following a decision by the Court of Appeal remitting the issue of a declaration for indemnity from 2402169 Ontario Inc. to the motion judge, a telephone case conference was held.

The parties agreed to have the motion determined in writing.

The court ordered the motion to proceed in writing during the week of February 1, 2021, and established a timetable for the delivery of factums and motion materials.

The defendant brought a motion to set aside an ex parte Mareva order obtained by the plaintiff, which froze the proceeds of the sale of a property.

The defendant argued that the plaintiff failed to make full and fair disclosure of material facts, specifically regarding a 'secret' trust agreement and the plaintiff's lack of assets to satisfy its undertaking as to damages.

The court agreed, finding that the plaintiff's failure to disclose that the trust agreement was not public and that the plaintiff was a shell company without assets constituted material non-disclosures.

The court set aside the ex parte order.

The plaintiff obtained an ex parte Mareva injunction and Certificate of Pending Litigation against the defendants, alleging fraudulent and deficient electrical work during a home renovation and claiming the defendants were dissipating assets to avoid judgment.

On the motion to continue the injunction, the court dissolved the orders, finding the plaintiff failed to make full and frank disclosure regarding available insurance and the extent of deficiencies.

Furthermore, the plaintiff failed to establish a strong prima facie case or a serious risk of asset dissipation, as the evidence of fraud and intent to hide assets was largely speculative and contradicted by the defendants' evidence.

The plaintiff by counterclaim brought a motion to amend pleadings to add an investment subsidiary as a defendant to the counterclaim after the limitation period had allegedly expired.

The court considered s. 21 of the Limitations Act, 2002 and the doctrine of misnomer.

It found that the counterclaimant had always intended to pursue claims against both the banking and investment arms of the financial institution and that the proposed defendant knew it was the intended defendant.

The amendment therefore constituted a correctable misnomer rather than the addition of a new party after the limitation period.

The motion to add the party was granted, subject to further particulars being provided for certain defamation allegations.