COURT FILE NO.: 154/09
DATE: 20090511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, PARDU AND LOW JJ.
B E T W E E N:
ONTARIO SECURITIES COMMISSION, HUGH CLELAND, DAON DEVELOPMENT CORPORATION, JOHN TEMPLETON and THE WOODBRIDGE COMPANY LIMITED
Plaintiffs
(Respondents in Appeal)
- and -
STUART BRUCE MCLAUGHLIN, PEEL FINANCIAL SERVICES LIMITED and S.B. MCLAUGHLIN & COMPANY LIMITED
Defendants
(Appellants in Appeal)
Paul Michell and Michael J. Sims, for the Plaintiffs, Respondents in Appeal
Ronald G. Chapman and Paul Dollak, for the Defendant McLaughlin, Appellant in Appeal
HEARD at Toronto: May 11, 2009
PARDU J.: (Orally) (Amended)
[1] Cumming J. found that the defendant’s motion to amend its Statement of Defence was “simply to delay the already far too long delayed trial of the action and thus constitutes an abuse of process.”
[2] This conclusion was reasonably open to the motion judge on the evidence before him. In particular, among other things, illustrating:
(i) the events giving rise to the action arose in 1983;
(ii) the action was started in 1986;
(iii) discoveries were completed in 2000;
(iv) the defendant brought a motion for partial summary judgment and later to dismiss for delay which would have prevented a trial from proceeding;
(v) the defendants consented to the dismissal of these motions from which it may be inferred that the motions had no merit;
(vi) the motion to amend the Statement of Defence was not brought until a trial date was about to be set.
[3] This finding is entitled to deference (Housen v. Nicholaisen) and is in itself sufficient to dispose of the motion.
[4] The motion judge also relied upon the Court of Appeal statement in Family Delicatessen Ltd. v. London (City), 2006 5135 (ON CA), [2006] O.J. No. 669 (C.A.):
“While delay is not in and of itself a basis for refusing an amendment. There must come a point where the delay is so long and the justification so inadequate that some prejudice to the defendants will be presumed absent demonstration by the parties seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay.”
[5] In our view this principle is not limited to cases in which the plaintiff seek amendments to pleadings under circumstances where a limitation period has expired. Here, the delay was extraordinary and the motion judge found that most of the proposed amendments did not arise as a result of recently discovered information and that there was no reasonable explanation for the delay.
[6] When the motion judge said, “The moving party must lead evidence to support both the proposed amendments and evidence to support his claim that he was otherwise unable to make this motion until now”, he was not indicating that a party must introduce evidence in support of the merits of the substantive elements of the proposed new matters pleaded, but rather referring to the need for some explanation of the delay in seeking the amendments and the presence or absence of prejudice to the opposite party and the need to show a nexus between the proposed amendments and the facts or evidence said to be recently discovered.
[7] The motion judge was entitled to conclude on the evidence before him that the proposed amendments would cause prejudice to the plaintiffs which could not be remedied by an order for costs or an adjournment. As noted in paragragh 72:
“Given the lapse of time many of the principals on both sides are elderly. One plaintiff is deceased, the shareholder and directing mind of another plaintiff has died and the relevant director nominee of that plaintiff has passed away. Memories fade with time. Almost twenty-three years have lapsed since the issuance of the statement of claim. There is common ground between the protagonists that if leave is given to amend the statement of defence a trial will necessarily be further delayed by years.”
[8] These consequences to allowing the amendments sought were not challenged before us. An absence of any reasonable explanation for the delay and the irremediable prejudice to the plaintiffs justified the motion judge’s refusal to allow the amendments.
[9] Accordingly, the appeal is dismissed.
JENNINGS J.
[10] I endorse the back of Volume I of the Appeal Book and Compendium: “This appeal is dismissed for oral reasons of the Court delivered by Pardu J. Costs to the respondent fixed at $28,000.00, inclusive of disbursements and GST.”
JENNINGS J.
PARDU J.
LOW J.
Date of Reasons for Judgment: May 11, 2009
Date of Release: May 14, 2009
COURT FILE NO.: 154/09
DATE: 20090511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, PARDU AND LOW JJ.
B E T W E E N:
ONTARIO SECURITIES COMMISSION, HUGH CLELAND, DAON DEVELOPMENT CORPORATION, JOHN TEMPLETON and THE WOODBRIDGE COMPANY LIMITED
Plaintiffs
(Respondents in Appeal)
- and -
STUART BRUCE MCLAUGHLIN, PEEL FINANCIAL SERVICES LIMITED and S.B. MCLAUGHLIN & COMPANY LIMITED
Defendants
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: May 11, 2009
Date of Release: May 14, 2009