Court of Appeal for Ontario

Date: 2017-01-18 Docket: C62449

Judges: Simmons, Brown and Roberts JJ.A.

Between

The Estate of Daniel Richard Matthews (deceased) under The Trustee Act, Lee Ann Matthews, Richard Matthews, Edna Matthews and Susan Schooley

Plaintiffs (Respondents/Appellants by Cross-Appeal)

and

Dr. Geoffrey Edward Moran, Collingwood General and Marine Hospital, Dr. James Grant Macfarlane, Dr. Adegboyega Adedapo Akinyele, Dr. David Gregory Lowe, John Doe, Jane Doe, St. Michael's Hospital, Dr. Robert Loughlin Macdonald, John Doe and Jane Doe

Defendants (Appellants/Respondents by Cross-Appeal)

Counsel

Cynthia B. Kuehl and Sarah E. Martens, for the appellant/respondents by cross-appeal Dr. Vikramaditya Prabhudesai, Dr. Deljit Singh Dhanoa and Dr. Alexandre Menard

Keenan Sprague, for the respondents/appellants by cross-appeal

Heard: January 16, 2017

On appeal from the order of Justice P.W. Sutherland of the Superior Court of Justice, dated June 24, 2016.

Appeal Book Endorsement

[1] We see no basis on which to interfere with the motion judge's discretionary decision to extend the limitation period under s. 38(3) of The Trustee Act and permit the respondents to add the appellants as named defendants in the action. When read as a whole, the motion judge's reasons reveal he found special circumstances were present. In reaching this conclusion, the motion judge considered the lengthy unexplained delay but was satisfied that it was outweighed by other factors. It is undisputed that there was no actual prejudice.

[2] The appeal is dismissed. In the circumstances, it is unnecessary that we address the cross-appeal.

[3] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.