Superior Court of Justice - Ontario

CITATION: 2017 ONSC 577

COURT FILE NO. CV-15-520355

RE: David Melville-Laborde and Maria Cecilia Cauilan, Plaintiffs

AND:

3455 Glen Erin Apartments Inc., Osgoode Properties Ltd. and Briarlane Rental Property Management Inc., Defendants

BEFORE: Master P. T. Sugunasiri

COUNSEL: Jamshidimoghadam, S., Counsel for the Plaintiffs/Moving Parties

IN CHAMBERS: November 1, 2017

Supplementary endorsement

[1] Further to my reasons for decision dated October 10, 2017 in which I dismissed the Plaintiffs’ motion to add B&L Mettel Ltd. as a defendant to the main action, I requested further submissions from the Plaintiff with respect to the position of another proposed Defendant, J & N Landscaping. Given the basis of my decision that the Plaintiffs had not provided any evidence as to their circumstances or understanding between the date of loss and the expiration of the limitation period, I asked the Plaintiff to assist the Court in whether or not it is bound by J&N’s non-opposition to the motion. In other words, whether J&N should be afforded the same treatment as B&L because the dismissal of the motion did not turn on anything particular to B&L.

[2] I thank counsel for her submissions. In my view, a Court is not bound by party consents or positions where its discretion is to be exercised. However, the party’s position is an important factor, and the Court should not interfere with a party’s choice of litigation path, subject to the Court’s overarching case management function and its role in ensuring that the interests of justice are met. This is especially true in our adversarial system where the onus is on the parties to bring issues before the Court including the evidence they wish to rely on and the arguments they wish to make.

[3] In this case, B&L chose to address limitations in the within motion. Its subcontractor, J&N, chose the path of not opposing the Plaintiffs’ motion to add it as a named Defendant with the caveat that they would like to retain the right to address the limitations issue in their defence.

[4] Given the foregoing, I order that the Plaintiffs be permitted to add J&N Landscaping as a Defendant to their claim without prejudice to J&N pleading all defences available to it including the Limitations Act, 2002. As originally requested, the Plaintiffs shall serve an Amended Statement of Claim within 30 days from the date of the Order. Given the form of amended claim provided at the return of the motion included B&L, I cannot make an order as to the specific form of amended claim to be delivered. Rather, the Plaintiffs may deliver a form of Amended Statement of Claim that adds J&N and any allegations against it as a new defendant.

Original Signed

“Master P.T. Sugunasiri”

Date: November 1, 2017