Farrell et al. v. Costco Wholesale

[Indexed as: Farrell v. Costco Wholesale]

Ontario Reports

Ontario Superior Court of Justice,

Price J.

11, 2015*

• This judgment was recently brought to the

attention of the editors.

Civil procedure -- Third party proceedings -- Defendant in

personal injury action moving for leave to issue third party

claim 15 months after it was served with statement of claim --

Examinations for discovery having taken place and trial

scheduled to start in five months -- Defendant having knowledge

of facts underlying third party claim on date of accident --

Third party claim lacking discernable merit -- Issuance of

third party claim likely to delay trial for at least another

eight months -- Motion dismissed as issuance of third party

claim and consequent delay would prejudice plaintiff.

130 O.R. (3d) 625 | 2015 ONSC 7783

Case Summary

The plaintiff was injured when a display board fell on her as she was shopping in the defendant's store. She brought an action for damages for personal injuries. Three and a half years after the accident, and 15 months after it was served with the claim, the defendant brought a motion under rule 29.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for leave to issue a third party claim against A Inc., the company that supplied the merchandise displayed by the board that injured the plaintiff.

Held, the motion should be dismissed.

Rule 29.02 requires the court to grant leave to issue a third party claim unless doing so would prejudice the plaintiff. The test is prejudice, not "undue" prejudice. In this case, examinations for discovery had taken place, the plaintiff had set the action down for trial, and the trial was scheduled to start in five months. The facts underlying the third party claim were known to the defendant on the date of the accident. The defendant offered no explanation for its failure to issue the third party claim within ten days following the delivery of its defence, or for the subsequent delay in moving for leave to issue the third party claim. There was no discernable merit in the third party claim, given that the defendant's contract with A Inc. provided for indemnification in the event of loss or injury from defective merchandise, and the allegation was (and the evidence tendered on the motion suggested) that the plaintiff was injured, not by defective merchandise, but by a display board that the defendant's employees had failed to secure in accordance with the company's checklist. If a third party claim was issued, the trial would be delayed for at least another eight months. In the meantime, the plaintiff continued to be adversely affected by her injuries. Granting leave to issue a third party claim would prejudice the plaintiff.

Bell Canada v. Olympia & York Developments Ltd., [1988] O.J. No. 1501, 30 C.P.C. (2d) 155, 12 A.C.W.S. (3d) 160 (C.A.), affg 1988 2876 (BC SC), [1988] O.J. No. 451, 29 C.L.R. 231, 26 C.P.C. (2d) 113, 10 A.C.W.S. (3d) 64 (H.C.J.), apld

Medeiros v. Dilworth (2002), 2002 49431 (ON SC), 59 O.R. (3d) 136, [2002] O.J. No. 1406, [2002] O.T.C. 243, 22 C.P.C. (5th) 145, 114 A.C.W.S. (3d) 46 (S.C.J.); West (Litigation guardian of) v. Goldie, [2014] O.J. No. 4742, 2014 ONSC 5872 (S.C.J.), consd [page626]

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