Wong v. Adler [Indexed as: Wong v. Adler]

76 O.R. (3d) 237

[2005] O.J. No. 1400

Court File No. 02-CV-236364CM2

Divisional Court File No. 505/04

Ontario Superior Court of Justice

Divisional Court

Carnwath J.

March 24, 2005

Civil procedure -- Parties -- Adding parties -- Expiry of limitation period -- Where plaintiff relies on discoverability principle in seeking to add defendants after expiry of limitation period, motions court must [page238] examine evidentiary record to determine if there is issue of fact or credibility on discoverability allegation -- If such issue exists, motions court should add defendant with leave to plead limitations defence -- If there is no such issue then motion should be dismissed.

Limitations -- Practice -- Adding parties -- Where plaintiff relies on discoverability principle in seeking to add defendants after expiry of limitation period, motions court must examine evidentiary record to determine if there is issue of fact or credibility on discoverability allegation -- If such issue exists, motions court should add defendant with leave to plead limitations defence -- If there is no such issue then motion should be dismissed.

NOTE: The catchlines above relate to a decision of the Superior Court of Justice dated August 17, 2004 ON SC 8228, 2004, 70 O.R. (3d) 460. An appeal of this judgment to the Superior Court of Justice, Divisional Court, was dismissed on March 24, 2005. The endorsement of the court was as follows:

Counsel:

Dana Hanson, for plaintiffs/appellants. Christine Fotopoulos, for defendant/respondent.

[1] CARNWATH J.:-- The plaintiff acknowledges that not every issue of discoverability is required to proceed to trial on an issue of credibility.

[2] I find it was open to the Master to conclude on the record before him that the motion to add could be dealt with at the motion stage, and that he thus exercises his discretion to grant or deny the motion.

[3] I am invited by the plaintiff to review the entire record, which I have done, and to exercise my discretion and grant the motion the Master refused.

[4] I find the Master is due deference on at least the reasonable standard. I find it unnecessary to determine whether the standard is the higher onus of "clearly wrong."

[5] The Master gave complete, indeed impeccable reasons for his decision on the original motion and the subsequent motion.

[6] Not only do I find his decisions and his underlying findings reasonable, I would have exercised my discretion in this same manner and for the same reasons.