Court of Appeal for Ontario

Date: 2017-03-13 Docket: C62791

Panel: Hoy A.C.J.O., Gillese and Brown JJ.A.

Between

Calogero Castronovo, Liverata Castronovo and Pasquale Castronovo Plaintiffs (Respondents)

and

Sunnybrook & Women's College Health Sciences Centre, Ms. L. Chow, Jane Doe and/or John Doe, Venus Chiodo a.k.a. Venus Cariati o/a Mutual Aid Legal Services and Mikhail Krylov a.k.a. Michael Krylov Defendants (Appellants)

Counsel

William G. Scott, for the appellants

Brian Pickard and Earl Murtha, for the respondents

Heard

March 7, 2017

On Appeal

On appeal from the order of Justice F.L. Myers of the Superior Court of Justice, dated October 6, 2016.

Endorsement

[1] In a June 9, 2016 order, Archibald J. directed that, if advised, the appellants were to serve and file a motion to amend their defence to advance a limitation period defence by June 17, 2016. He maintained the October 17, 2016 trial date, pending amendments. All counsel signed the order.

[2] The appellants served their notice of motion, seeking leave to amend their statement of defence to plead a limitations defence, on August 17, 2016. Myers J. heard their motion on October 6, 2016. The appellants asserted that the respondents should have discovered their claim against them in 2007 and the claim was accordingly statute-barred.

[3] Myers J. dismissed their motion. The crux of his reasoning was that the appellants had failed to show why it was in the interests of justice to grant the requested extension of time under r. 3.02 of the Rules of Civil Procedure. He held that Archibald J.'s order was a consent order and found the appellants had not explained why they waited seven years from being added as parties or two months after the deadline prescribed in the consent order to file and serve their motion. He noted that Archibald J.'s order specifically contemplated counsel's need for instructions. Moreover, it was common ground that the trial date would be lost if leave to amend were granted. "Delay matters", he wrote. And if the appellants advanced a limitations defence, the respondents' counsel would be a key witness and the respondents would need to find new counsel in a 13-year old case. He concluded "there is no amount of money that can compensate the [respondents] if they are sent back to the drawing board needing to find new counsel at this late date."

[4] The appellants concede Myers J. articulated the correct test (whether it was in the interests of justice) to be applied in determining whether an extension of time should be granted under r. 3.02, and that an order under r. 3.02 is discretionary. But they argue Myers J. erred (i) in concluding Archibald J.'s order was a consent order; (ii) in concluding the appellants had not adequately explained the delay; and (iii) by considering prejudice other than prejudice arising from their two-month delay in complying with Archibald J.'s order.

[5] We reject these arguments. In our view, Myers J. did not err in concluding that the appellants had failed to show that it was in the interests of justice to grant the requested extension. The uncontradicted evidence before Myers J. was that all counsel had agreed to the timeline ordered by Archibald J. The fact that the parties had consented to the order, the very late stage in this long-outstanding litigation at which the appellants raised the possibility of amending their defence, and the impact on the litigation – what Myers J. characterized as "prejudice" – if the appellant brought the motion to amend, all required that the appellants provide a compelling explanation for their non-compliance with the consent order. Myers J.'s conclusion that the appellants had failed to satisfactorily explain their non-compliance is supported by the record. There is no basis to interfere with the order of Myers J. dismissing the appellants' motion.

[6] The appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"Eileen E. Gillese J.A."

"D.M. Brown J.A."