COURT OF APPEAL FOR ONTARIO

DATE: 20030613

DOCKET: C38822

RE:

KEHOE DEVELOPMENT CORPORATION INC. (Plaintiff/Appellant) – and – THE CORPORATION OF THE CITY OF ORILLIA, BRUCE D. BAYNE, and RON ELLETT (Defendants/Respondents)

BEFORE:

WEILER, LASKIN and GOUDGE JJ.A.

COUNSEL:

Gordon Wood

for the appellant

Michael Miller

for the respondents

HEARD:

June 11, 2003

On appeal from the order of Justice David Salmers of the Superior Court of Justice dated August 22, 2002.

E N D O R S E M E N T

Released Orally: June 11, 2003

[1] The governing rule is rule 26.01. The amendment must be allowed on such terms as are just unless there is prejudice that could not be compensated for by costs. There is a limitation period that may be in issue. The amendment could nevertheless be allowed without prejudice to the right of the respondent to plead and argue the limitation period as a defence. The court is advised that there would be no further discovery of the respondents consequent upon the amendment.

[2] The focus of the argument on the motion was whether the claim for equitable subrogation is tenable in law. For the purposes of the amendment we take the facts alleged to be true and on those facts we are of the opinion that the claim is tenable in law.

[3] The appeal is allowed and the order of the motions judge is set aside. In its place an order will go allowing the proposed amendments without prejudice to the right of the respondent to plead and to argue the limitation period as a defence.

[4] There are no costs of either the motion or the appeal.

“K. M. Weiler J.A.”

“John Laskin J.A.”

“S. T. Goudge J.A.”