DATE: 20040518

DOCKET: C40937

COURT OF APPEAL FOR ONTARIO

RE:

MAVIS BUTLER, ANGELA M. BUTLER, CHAD S. BUTLER, THAD M. BUTLER and FALLON E. BUTLER (Plaintiff (Appellant)) – and – MARTIN NASH (Defendant (Respondent))

BEFORE:

CRONK, ARMSTRONG and LANG JJ.A.

COUNSEL:

Steven J. Gearing

for the appellant

Michael E. Royce

for the respondent

HEARD AND ENDORSED:

April 30, 2004

On appeal from the judgment of Justice W.P. Somers of the Superior Court of Justice dated October 9, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant argues that the motions judge erred in granting summary judgment on the basis of laches and delay because they were not pleaded by the respondent and the respondent failed to seek a pleadings amendment at or prior to the motion for summary judgment. We disagree.

[2] Although laches and delay were not specifically pleaded (but expiry of a limitation period was pleaded), they were clearly raised in the respondent’s factum on the summary judgment motion, the appellant responded to these issues in her factum, and laches and delay were fully argued before the motions judge. Accordingly, the appellant was not taken by surprise by this argument and suffered no prejudice.

[3] As well, the appellant did not seek an adjournment of the motion in order to file further evidence or to re-open cross-examinations. Both options were open to her.

[4] The record before the motions judge clearly established that the appellant knew by 1989 that she had a claim against the respondent for damages for abuse and that her time to advance such a claim may be running out. She failed to commence proceedings until 2002, about 13 years later.

[5] In these circumstances, the motions judge was correct in granting summary judgment on the basis of laches and delay. The appeal is dismissed.

[6] The appellant did not pursue her appeal on the matter of the costs of the proceedings before the motions judge. The costs awarded to the respondent by the motions judge were significant. We are not persuaded, in the circumstances, that any costs award should be made in this proceeding.