Philip Cho

The applicants brought a motion to amend a statement of claim in a personal injury action arising from a motor vehicle accident to add Family Law Act claims after the expiry of the two‑year limitation period.

The primary action had been commenced within the limitation period by the injured plaintiff.

Following the plaintiff’s death, her spouse and mother sought to be added as plaintiffs under s. 61 of the Family Law Act for loss of care, guidance, and companionship.

The court held that the derivative claims could be added because the main action had been commenced in time and there was no compensable prejudice to the defendant.

Alternatively, the court found an evidentiary basis that the claims were not discoverable until the plaintiff’s death when the damages exceeded the statutory threshold.

The appellant appealed the dismissal of its motion under Rule 45.02 for an order preserving a sum of money held as cash collateral.

The appellant argued that its obligations under a Letter of Credit Agreement were discharged because the respondent entered into a forbearance agreement with the principal borrower, materially altering the guaranteed loan.

The Divisional Court dismissed the appeal, finding that the agreement was for a standby letter of credit, not a guarantee, and thus the law of guarantees did not apply.

Furthermore, the cash collateral was not a specific fund to which the appellant had a proprietary claim, and the appellant had implicitly ratified the forbearance agreement by participating in the borrower's insolvency proceedings without objection.

The appellant sought leave to appeal a decision dismissing its motion for an interim preservation order regarding a $3.5 million cash collateral drawn from a standby letter of credit.

The motions judge had found that the appellant had no proprietary interest in the funds and that the law of guarantee did not apply.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision and noting that the application of guarantee law to a standby letter of credit in the context of an underlying agreement is an issue of broader significance.

A stay of the order directing payment of the funds was also granted pending the appeal.

The appellant vendor appealed an order dismissing its motion to set aside a default judgment for the return of a $15,000 deposit to the respondent purchaser.

The Divisional Court had previously declined jurisdiction, finding the order was not for a 'single payment'.

The Court of Appeal held the Divisional Court erred in its jurisdictional analysis but retained the appeal to save the parties further expense.

On the merits, the Court of Appeal upheld the motion judge's decision, finding no error in his conclusion that the appellant's explanation for the default was inadequate and that the respondent would be entitled to relief from forfeiture.