M. Doli

The appellant sought to appeal a trial judge's order fixing costs at $4,000 against him, but failed to seek leave to appeal in his notice of appeal or factum.

The Divisional Court noted that under section 133 of the Courts of Justice Act, an appeal as to costs requires leave, which is granted sparingly.

Finding that the appellant failed to demonstrate strong grounds to interfere with the trial judge's discretionary costs order, the court refused leave and quashed the appeal for want of jurisdiction.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend the statement of claim arising from a motor vehicle accident to advance an uninsured/underinsured claim against the insurer under her husband’s policy.

The defendants opposed the amendment, arguing that it constituted a new cause of action outside the limitation period and that the doctrine of misnomer did not apply.

The court held that although the misnomer doctrine was not satisfied, the evidence did not establish that the limitation period had expired and the proposed amendments were legally tenable.

The court emphasized that amendments must be granted unless non-compensable prejudice is demonstrated and that the merits of the proposed claim should not be determined on the motion.

Finding no prejudice that could not be compensated by costs or adjournment, the court granted leave to amend.

The appellant appealed a motion judge's decision to strike out portions of his amended Statement of Claim and Defence to Counterclaim that challenged the validity of a prior judgment.

The motion judge found that the appellant's attempt to relitigate the issue, after declining to participate in a previous motion where he had notice and an opportunity to be heard, constituted an abuse of process.

The Court of Appeal agreed and dismissed the appeal, awarding costs to the respondents.