Court of Appeal for Ontario

CITATION: Horgan v. Tanktek Environmental Services Ltd., 2009 ONCA 820

DATE: 20091123

DOCKET: C50659

Feldman, Armstrong and Epstein JJ.A.

BETWEEN

Theresa Lynn Horgan and Michael David Horgan

Plaintiffs (Appellants)

And

Tanktek Environmental Services Ltd.

Defendant (Respondent)

Counsel: John W. McDonald, for the appellants Jennifer Stirton, for the respondent

Heard and released orally: November 17, 2009

On appeal from the judgment of Justice R. D. Reilly of the Superior Court of Justice dated June 2, 2009.

ENDORSEMENT

[1] The motion judge dismissed the appellants’ motion to add two further plaintiffs to this action. The appellants assert a number of grounds of appeal. It is not necessary to address each of them. We agree with the motion judge that the two year limitation period for asserting these claims on behalf of the proposed new plaintiffs expired as of February 10, 2008.

[2] We are satisfied that this is not a case of misnomer. Rather, it is a case of adding new parties to the action after the expiry of the limitation period.

[3] The appeal is therefore dismissed. However, we note that an issue was referred to in obiter dicta by the motion judge concerning the validity of an assignment agreement between Barbara Kavanaugh and the appellants. In our view, the validity or effectiveness of the assignment agreement has not been judicially determined. Counsel for the respondent in this appeal, in the best traditions of the bar, agreed that the validity of the assignment agreement remains outstanding.

[4] Costs of the appeal and the motion below are awarded to the respondent in the total amount of $8,000 inclusive of disbursements and G.S.T.

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”

“Gloria J. Epstein J.A.”