CITATION: Turnbull-Smith v. Turnbull, 2012 ONSC 3937
COURT FILE NO.: CV-09-169-00
DATE: 2012 07 03
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Alison Turnbull-Smith and Jeffrey Smith, Plaintiffs
AND:
Bruce Turnbull, Thomas Turnbull and Charles Dietrich Construction Limited, Defendants
BEFORE: The Honourable Mr. Justice R. F. Scott
COUNSEL: John A. Ryder-Burbidge, for the Plaintiffs
Christopher S. Guest, for the Defendant Dietrich Construction Limited
HEARD: June 7, 2012
E N D O R S E M E N T
[1] This is a motion for leave to appeal pursuant to Rule 62.02 to the Divisional Court from the Order of Justice J. Johnston made on March 12, 2012 allowing the plaintiffs to amend their Statement of Claim as against the defendant, Dietrich Construction Limited (Dietrich) pursuant to Rule 26.01.
[2] The facts are not in dispute. Both parties submit that the defendant, Dietrich, removed sand from the plaintiffs’ property for the benefit of the other defendants, Bruce Turnbull and Thomas Turnbull who are the father and brother respectively of the plaintiff, Alison Turnbull-Smith.
[3] The plaintiffs set out in their Statement of Claim issued on March 31, 2009 that the defendants removed the sand in 2007. By way of Statement of Defence, the defendant, Dietrich, confirmed removing the sand and also admitted to removing sand “over a period which extends back many years.”
[4] On January 19, 2011, during discoveries, Bruce Terry on behalf of Dietrich disclosed that Dietrich had also removed sand from the lands on behalf of the other defendants dating back to 1998 on seven or eight occasions.
[5] As a result of these disclosures, on October 12, 2011 the plaintiffs’ counsel advised this defendant’s counsel that he was intending to amend the Statement of Claim to include claims dating back to 1998 in keeping with the admissions by Dietrich.
[6] On December 16, 2011, the parties by their respective counsel attended in Assignment Court in Kingston and had the matter set down for trial with a jury for five days commencing October 1, 2012.
[7] On February 8, 2012, the Plaintiffs brought their motion for leave to amend their Statement of Claim reflecting dates going back in time to 1998. Of importance to the position of the defendant, Dietrich, the plaintiff did not provide any affidavit material in support of its motion to amend its pleadings pursuant to Rule 26(1).
[8] The defendant, Dietrich, submits among other things that leave to appeal should be granted because pursuant to the second test enunciated in Ruled 62.02(4)(b), “there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.” (Rule 62.02(4)(b))
[9] In particular the defendant, Dietrich submits that the motion Judge erred as follows:
He failed to find that the two year limitation period prescribed by section 4 of the Limitations Act, 2002 expired on May 5, 2011 being the second answering of the service of the Statement of Defence of the defendant, Dietrich, wherein it disclosed other said removal prior to 2007;
He failed to properly consider the conflict between section 4 and 5 of the Limitations Act, 2002 and Rule 26.01 where, as in this case, s. 5(2) of the Limitations Act, 2002 presumes that the plaintiffs knew that the defendant, Dietrich had removed sand as early as 1998 “unless the contrary is proved,” while Rule 26.01 indicates that the facts pleaded in a proposed amendment one true and the only real issue is whether the proposed amendment discloses a cause of action.
[10] Justice Johnston wrote in his decision relating to the issue of the expiration of the Limitation Period; “In my view, there is an evidentiary issue as to whether or not the plaintiffs’ claim prior to 2007 are banned by virtue of the Limitation Act.”
[11] I agree, it being a factual matter, the trial judge will ultimately have to decide whether the claim prior to 2007 is valid or not. Discoverability will be the ultimate issue. Notwithstanding, the matter of the limitation period is very much a live issue in these proceedings.
[12] Given that the amendment sought by the Plaintiffs pursuant to Rule 26.01 is presumed to be true and to disclose a cause of action and the prejudice, if any, is something that may be compensated for by costs or an adjournment, and given that the moving party on the amendment (Rule 26.01) is not required to file affidavit material, there is no conflict in the law.
[13] The case of Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 2008 ON CA 469 was a motion for summary judgment pursuant to Rule 21.01(1) and as such requires a higher degree of evidentiary material by the moving party.
[14] Given that Justice Johnston was dealing with a motion to amend pursuant to Rule 26.01, there does not appear that the Appellant has satisfied the two separate tests enunciated in Rule 62.02(4) of the Rules of Practice.
[15] Appeal dismissed.
[16] The plaintiffs, being successful are entitled to their costs. I would ask the parties to submit their respective positions with my assistant failing agreement.
Scott, J.
DATE: July 3, 2012