Court File and Parties

Citation: Sirotek v. O’Dea, 2021 ONSC 1223 Divisional Court File No.: 232/20 Date: 2021-02-18 Superior Court of Justice – Ontario Divisional Court

Re: Sirotek v. O’Dea

Before: D.L. Corbett, Mew and Kristjanson JJ.

Counsel: Joseph Groia and David Sischy, for the Moving Parties / Defendants Katie Black and Sarah Lag, for the Responding Parties / Plaintiffs

Heard in writing: December 18, 2020

Decision on Motion for Leave to Appeal

[1] This motion for leave to appeal from the decision of MacLeod R.S.J. (2020 ONSC 3427) is dismissed with costs fixed at $5,000.00, inclusive, payable within thirty days.

[2] We issue brief reasons to give guidance in future cases involving appeals from decisions where a motions judge, granting leave to amend a pleading, has not addressed the effect of such an amendment on limitations arguments.

[3] The motions judge granted the plaintiffs leave to amend their statement of claim to plead claims against one of the defendants. The moving parties assert in their application for leave to appeal that these claims were known, or ought to have been known to the plaintiffs at the time the original claim was issued, some six years previously. Hence, it is asserted, these claims were statute barred, leave having been sought more than two years after these claims had been discovered: Limitations Act, 2002, S.O. 2002, C. 24, Sched. B, s.4.

[4] The motion judge correctly observed, at para. 13 of his reasons, that a “pleading amendment will not be allowed if the amendment adds a cause of action and the limitation period has clearly expired”. However, his reasons contain no further reference to the issue of limitation. Nor does the formal order which was taken out.

[5] Where a claim is dismissed on the basis of a limitations defence, the result is a final order, appealable as of right. No motion for leave to appeal is required.

[6] Where a motion to amend is granted on the basis that there is no genuine issue of fact and law in dispute that could result in a limitations defence succeeding, the result is again a final order, appealable as of right. No motion for leave to appeal is required: the limitations issue has been decided against the defendant on a final basis.

[7] Where a motion for leave to amend a claim is granted on the basis that there remain genuine issues of fact and law in dispute as to whether a limitation defence is available, or where summary judgment is dismissed on the basis that there is a triable issue in respect to a limitations defence, then the order is interlocutory, and the appeal lies to this court with leave.

[8] It is axiomatic that an appeal is taken from the impugned order and not from the reasons given for making the order. In the context of a motion involving a limitations argument, where the order does not finally dispose of a limitations defence, then the order is interlocutory and the limitations defence is available to the defendant at trial. The trial judge is not bound by the views of the motions judge on the limitations argument (if any). Appeal rights on the final disposition of a limitations defence accrue when a final disposition is ordered.

[9] An argument advanced on this motion for leave to appeal is that the motion judge erred in law in finding that the proposed amendments do not include new causes of action. In fact, he made no such finding. His decision therefore does not, as the moving parties assert, “in effect create a new carve-out in the application of the Limitation Act”.

[10] Rather, the order from which leave is sought to appeal grants a pleading amendment without reference to a limitations defence. While it is always preferable for the parties to address with the court whether the order is made without prejudice to a limitation defence being pleaded and raised at trial, where this is not done, it does not automatically follow that the limitation defence has been finally disposed of.

[11] In the circumstances of this case, it is therefore open to the defendants to plead that defence in response to the amended claim.

D.L. Corbett J.

Mew J.

Kristjanson J.

Date: February 18, 2021