Court File and Parties

COURT OF APPEAL FOR ONTARIO

CITATION: Butera v. Mitsubishi Motors Corporation, 2013 ONCA 125

DATE: 20130226

DOCKET: M42067 C56077

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Luciano Butera,

1515404 Ontario Inc. operating as Niagara Mitsubishi

and Canterra Property Holdings Inc.

Plaintiffs (Appellants)

and

Mitsubishi Motors Corporation,

Mitsubishi Motor Sales of America, Inc.,

Mitsubishi Motors North America, Incl.,

Mitsubishi Motors Credit America, Inc., and

Mitsubishi Motor Sales of Canada, Inc.

Defendants (Respondents)

Counsel: David Stearns, Harry Korosis and Peter Nicholson, for the appellants

Brad Hanna and R. McCluskey, for the respondents

Heard and released orally: February 13, 2013

ENDORSEMENT

[1] The motion is allowed and an order is granted striking paragraph 1 of the notice of appeal.

[2] The appellant Butera gave sworn evidence that he discovered his claims against the moving parties in 2006. He also conceded that the two-year limitation period under the Limitation Act of 2002, applied.

[3] The motion proceeded before Hambly J. on that basis and was decided on that basis. Only now on the appeal from the decision of Hambly J. is it argued that the six-year limitation period under the transition provisions of the 2002 Act apply.

[4] In our view, to permit the appellants to raise this new ground of appeal at this time causes prejudice to the moving party. Had the appellants raised this argument in the court below, the moving party would have had the opportunity to develop an evidentiary record to demonstrate that the deemed discovery and transition provisions of the 2002 Limitation Act do not apply in the manner now argued by the appellants. Further, in our view, it would be manifestly unfair to permit the appellants to advance this new argument at this time.

[5] Costs to the moving party fixed at $20,000 all inclusive as agreed.

“R.A. Blair J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”