The Corporation of the United Counties of Prescott & Russell v. David S. Laflamme Construction Inc. et al.
[Indexed as: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc.]
Ontario Reports
Court of Appeal for Ontario
Doherty and LaForme JJ.A. and Himel J. (ad hoc)
May 31, 2018
142 O.R. (3d) 317 | 2018 ONCA 495
Case Summary
Appeal — Jurisdiction — Final or interlocutory order — Plaintiff moving successfully to add WSP as defendant — Motion judge accepting plaintiff's position that its claim against WSP was not statute-barred as it was not reasonably discoverable within two-year limitation period — WSP appealing to Court of Appeal — Appeal quashed for lack of jurisdiction — Motion judge's determination that action was brought within limitation period made for purposes of motion only and not finally determining limitations issue — Order interlocutory.
The plaintiff brought a motion for an order adding WSP as a defendant in an ongoing action. The motion judge accepted the plaintiff's position that the claim was not statute-barred as it was not reasonably discoverable within the two-year limitation period. The motion was granted. WSP appealed to the Court of Appeal.
Held, the appeal should be quashed.
The motion judge did not purport to decide the limitations issue for any purpose other than the determination of the motion to add WSP as a party. Motions to add parties that are successful do not, as a rule, generate findings that are binding in the rest of the litigation. The motion judge's order was interlocutory. The Court of Appeal had no jurisdiction to hear it.
Cases Referred To
- Azzeh (Litigation guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721
- Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750
Statutes Referred To
Rules and Regulations Referred To
Parties and Counsel
APPEAL from the order of O'Bonsawin J., 2017 ONSC 5437 (S.C.J.) granting a motion to add a party.
Matthew W. Malcolm and Howard B. Borlack, for appellant (non-party) WSP Canada Inc.
Allan R. O'Brien, for respondent Corporation of the United Counties of Prescott & Russell.
Decision
[1] BY THE COURT: -- The respondent (plaintiff in the action) brought a motion under rule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order adding WSP Canada Inc. ("WSP") as a defendant in an ongoing action. That action arose out of alleged negligence in the rehabilitation of a bridge.
[2] The respondent's motion turned on whether its claim against WSP was out of time under the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Section 21 of the Act provides:
- If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[3] On the motion, the respondent contended that its claim against WSP was not reasonably discoverable until a date within the two-year limitation period. WSP contended that the respondent had ample information upon which to base its claim years earlier. The motion judge accepted the respondent's position, concluding, at para. 38:
Consequently, I find that the United Counties [respondent] can add WSP as a party to the litigation since its actions to do so were within the limitation period.
[4] WSP appeals claiming that the motion judge erred in concluding that the claim could not reasonably have been discovered at a point beyond the applicable time limit under the Act. The respondent argues that the motion judge was correct in her analysis of the Limitations Act provisions. The respondent also raises a preliminary jurisdictional point. Counsel argues that the order under appeal is interlocutory and not final, meaning that any appeal lies with leave to the Divisional Court.
[5] The respondent acknowledges that if the order is not final, the respondent cannot claim that the order is binding on the trial judge, meaning that WSP can relitigate the limitation issue at trial. Counsel has raised the issue, however, because in his submission, the jurisprudence from this court dictates that the order is interlocutory and cannot be appealed to this court.
[6] We agree with the respondent's submission on the jurisdictional issue.
[7] The distinction between a final and interlocutory order for the purposes of determining the appropriate appellate forum is not always easy to make: see Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750; Azzeh (Litigation guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721. In the present context, the order will be said to be final if it deprives WSP of a substantive defence. If WSP can no longer rely on the Limitations Act defence, the order is final. However, if WSP can raise the Limitations Act defence at trial, the order is not final. To determine whether the order is final or interlocutory, one must examine the terms of the order, the motion judge's reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.
[8] Looking first at the order itself, there is nothing in the language to suggest that any final determination was made on the Limitations Act issue. The order, presumably drawn with the co-operation of counsel, makes no reference to the Limitations Act or any findings made in respect of that Act. The order simply allows the respondent to add WSP as a defendant.
[9] The motion judge's reasons contain no language suggesting that any finding made in respect of the application of the Limitations Act had application beyond the motion itself. The motion judge did not purport to decide the issue for any purpose other than the determination of the motion to add WSP as a party.
[10] The nature of the motion is also relevant to the nature of the order arising from the motion. Some motions tend to generate final orders. For example, orders made on Rule 21 motions brought to determine a question of law, will generally apply to the litigation as a whole. Depending on the question of law decided, the order may well be final. Motions to add parties that are successful, however, do not as a rule generate findings that are binding in the rest of the litigation.
[11] We also cannot accept the contention that because the motion judge was required to make a finding as to the application of the Limitations Act, her finding must be regarded as binding in the litigation and therefore final. Section 21 of the Limitations Act forbids adding a party where the limitation period has expired. It does not foreclose adding a party absent an affirmative finding that the limitation period has not expired.
[12] Having regard to the factors outlined above, we conclude that the trial judge's determination that the action was brought within the limitation period was made for the purposes of the motion only. The motion judge was satisfied that, for the purposes of determining whether to add WSP as a party, the limitation period had not expired.
[13] The order under appeal is interlocutory. This court has no jurisdiction to hear the appeal. WSP may, if so advised, seek leave to appeal in the Divisional Court, or it may raise the limitations argument at trial.
[14] We make no comments on the merits of the motion judge's decision as should the matter be raised at trial, the record may well be considerably different than was the record before the motion judge.
[15] The appeal is quashed. Costs of the appeal to the respondent in the amount of $12,000, inclusive of disbursements and relevant taxes. The motion judge has not dealt with the question of costs on the motion. The parties have asked that we make no order with respect to the costs of the motion and leave that issue to be dealt with by the motion judge. So ordered.
Result
Appeal quashed.
