Butera v. Mitsubishi Motors Corporation, 2013 ONCA 125

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

2The 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.

3The 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.

4In 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.

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