Court File and Parties
CITATION: Neptun Distributors v. Serebrennikov, 2016 ONSC 2590
DIVISIONAL COURT FILE NO.: 367/15 DATE: 20160415
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
A.C.J.S.C. MARROCCO, L. A. PATTILLO AND D. A. BROAD JJ.
BETWEEN:
NEPTUN DISTRIBUTORS Plaintiff (Respondent)
– and –
MICHAEL SEREBRENNIKOV and POWERUP INC. ELECTRICAL CONTRACTORS Defendants/Appellants
Gregory N. Hemsworth, for the Plaintiff (Respondent)
Mark Wiffen, for the Defendant/Appellant, Michael Serebrennikov
HEARD at Toronto: April 15, 2016
Oral Reasons for Judgment
A.C.J.S.C. MARROCCO (orally)
[1] This was an appeal from a refusal to add Mr. Nicoletti as a defendant in the counterclaim.
[2] Rule 26.01 of the Rules of Civil Procedure provides that, on a motion to amend at any stage, the Court shall grant leave unless prejudice would result that cannot be compensated for by costs or an adjournment.
[3] Master Short allowed the amendment to add Neptune Distributors to the counterclaim but denied leave to add Mr. Nicoletti to the counterclaim on the basis of an expired limitation period.
[4] The proposed claim against Mr. Nicoletti is based upon breach of a contract between Mr. Serebrennikov and Mr. Nicoletti that provided for Mr. Serebrennikov to receive 50% of the shares of Neptun Distributors. There is also a claim for oppression against both Neptun Distributors and Mr. Nicoletti.
[5] We cannot determine from the pleadings the date by which performance of the contract was to take place or when the oppression claim arose. Accordingly, we think with the greatest respect to the Master, that it was an error in principle to refuse to grant leave at this stage of the proceedings and add Mr. Nicoletti as a defendant. Accordingly, the Master’s decision in that regard is set aside.
[6] Our decision is without prejudice to the right of the defendants to the counterclaim to plead and rely upon the Limitations Act.
COSTS
[7] I have endorsed the Appeal Book, “Appeal allowed for oral reasons given today. Costs in the amount of $3,415.58 for their proceedings are in the cause of the counterclaim.”
A.C.J.S.C. MARROCCO
L.A. PATTILLO J.
D. A. BROAD J.
Date of Reasons for Judgment: April 15, 2016
Date of Release: May 11, 2016
CITATION: Neptun Distributors v. Serebrennikov, 2016 ONSC 2590
DIVISIONAL COURT FILE NO.: 367/15 DATE: 20160415
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, L. A. PATTILLO AND D. A. BROAD JJ.
BETWEEN:
NEPTUN DISTRIBUTORS Plaintiff (Respondent)
– and –
MICHAEL SEREBRENNIKOV and POWERUP INC. ELECTRICAL CONTRACTORS Defendants/Appellants
ORAL REASONS FOR JUDGMENT
A.C.J.S.C. MARROCCO
Date of Reasons for Judgment: April 15, 2016
Date of Release: May 11, 2016