COURT FILE NO. : CV-19-00620130-0000 DATE : 08/09/2023
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIANNE HERZOG, IN HER CAPACITY AS ESTATE TRUSTEE OF THE ESTATE OF SHALOM (SAM) HERZOG, et al, Plaintiffs AND: KRANDEL, Defendants
BEFORE: ASSOCIATE JUSTICE J. JOSEFO
APPEARANCES: M. Kestenberg, agent-counsel for S. Dawe, counsel for the defendant Krandel D. Dochylo, counsel for Dianne Herzog in her personal capacity K. Charlebois, counsel for the plaintiff Dianne Herzog in her capacity as estate trustee, and for the other plaintiffs (Ms. Charlebois observed only, no submissions made at the hearing of the motion).
HEARD: September 5, 2023 DECISION RELEASED: September 8, 2023
Overview of the Action/What Leads to the Within Motion:
[1] The underpinning action is essentially a professional negligence claim. On October 18, 2019, the plaintiffs sued accountant Mr. Krandel for breach of contract and negligence in his performance of his professional duties vis-à-vis, inter alia, the late Sam Herzog. Krandel retained lawyer Ms. Dawe. On March 13, 2020, Ms. Dawe purported to deliver a Statement of Defence and Counterclaim to Ms. Charlebois, counsel for plaintiffs.
[2] In addition to denying negligence, Krandel asserted that, if he was liable, it was because Dianne Herzog (“Dianne”), who worked for Krandel for many years in an administrative or clerical role, did not provide all necessary information to allow Krandel to accurately prepare the tax returns of the late Sam Herzog. Thus, the Counterclaim ostensibly sued Dianne personally, as well as in her capacity as estate trustee.
[3] Yet two problems arose:
- Contrary to what is required by Rule 27.03, the Counterclaim was not issued, as was required because Dianne, in her personal capacity, was not originally a party to the action.
- The title of proceedings did not show a Counterclaim against Dianne.
[4] This irregular status was left unaddressed until Ms. Charlebois, on January 11, 2023, initiated an email exchange with Ms. Dawe. Ms. Charlebois stated in her first email to Ms. Dawe on the topic as follows:
“We would like to move this matter forward. Long ago, we had discussed the need for you to regularize your pleading (as regards the claim against Dianne) so that the action was properly constituted going forward. Can you please do so. Can we also schedule a call to discuss a timeline for affidavits of documents.”
[5] Ms. Dawe responded the same day as follows:
“By issuance of a counterclaim against Dianne personally?”
[6] The email discussion further continued that day, with Ms. Charlebois stating:
“In your counterclaim you seek relief against her personally but she is not currently a part to the proceedings except in her capacity as Estate Trustee of the Estate.”
[7] That evening, excerpting only the relevant part of Ms. Dawe’s email in reply, the discussion continued:
“I expect that the Court will want a consent to issue it. Is there going to be any issue with that?”
[8] To which question, that evening, Ms. Charlebois responded:
“I do not know. I will have to refer her to another lawyer for the personal claim against her.”
[9] Ultimately, there was indeed an “issue with that”; no consent was forthcoming. Counsel for Dianne personally, Mr. Dochylo, opposes the relief sought by defendant in this motion.
[10] In its amended Notice of Motion, the specific relief sought by defendant was stated as follows:
(a) an Order for leave to issue the Counterclaim, attached as Schedule "A" effective March 13, 2020, nunc pro tunc; (b) an Order adding Dianne Herzog in her personal capacity, as a Defendant to the Counterclaim; (c) an Order extending the time to serve the Counterclaim, attached as Schedule "A" on Dianne Herzog personally… .
The Rules which Apply:
[11] Rules 27.03 and 5.04(2) were, it was agreed, applicable to this matter. To situate my consideration of the matter, I excerpt these Rules:
Rule 27.03:
Where a person who is not already a party to the main action is made a defendant to the counterclaim, the statement of defence and counterclaim,
(a) shall be issued, (i) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at any time before the defendant is noted in default, or (ii) subsequently with leave of the court; and (b) shall contain a second title of proceeding showing who is the plaintiff by counterclaim and who are defendants to the counterclaim.
Rule 5.04(2):
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
Reviewing the Relevant Facts—and Findings Arising From Those Facts:
[12] I begin with the Statement of Defence and Counterclaim. For my purposes, I begin near the end of it, at paragraph 52 through 55:
COUNTERCLAIM
Krandel counterclaims against Dianne personally for: (a) Contribution, indemnity or other relief over to the full extent that Krandel may be held to be liable to the Plaintiffs, or any of them; (b) Pre-judgment and post-judgment interest on the above claimed damages pursuant to the Courts of Justice Act, R.S.O.1990 c.C.43; (c) His costs of this counterclaim on a substantial indemnity basis; and (d) Such further and other relief as this Honourable Court may deem just.
Krandel repeats and relies upon the allegations contained in his statement of defence above.
Krandel states that Dianne had a duty and responsibility [including a fiduciary duty] to disclose to Krandel any and all information required to prepare the financial statements and the tax returns of the Plaintiffs, in a complete, accurate and timely manner. Krandel reasonably relied upon Dianne to make that disclosure.
Dianne knew or ought to have known that failure to disclose to Krandel any and all information required to prepared the financial statements and the tax returns of the Plaintiffs, in a complete, accurate and timely manner, would expose the Plaintiffs to assessment by CRA for taxes, interest and penalties.
[13] Pursuant to paragraph 53 of the pleading, one series of relevant allegations in the Statement of Defence is, in my view, found at paragraphs 36 to 38:
In the event that the tax returns and/or the financial statements of any of the Plaintiffs were inaccurate, or contained any misrepresentation, it was with the full knowledge, and under the informed instruction, of Sam and/or Dianne. Moreover, it was without the knowledge of Krandel. Stated otherwise, Sam and/or Dianne deliberately misled and provided incorrect information to Krandel, for the purpose including, but without limitation, of reducing the taxable income of the Plaintiffs.
Full particulars of the facts of, and the motivation for, the deliberate actions of Sam and/or Dianne [to reduce the income of the Plaintiff's] are not known to Krandel, but are fully known to the Plaintiffs.
Sam and Dianne were, at all times, aware of the possibility that the CRA would, (i) reassess the corporate Plaintiff's and/or himself; and (ii) require the corporate Plaintiffs and/or himself to pay interest on the reassessed taxes and/or penalties. The Plaintiff's thereby knowingly and willingly assumed that risk.
[14] From my reading of this pleading, I find it plain and obvious that the intention of the defendant was to sue Dianne in her personal capacity. Paragraphs 52 through 55 of the pleading, and the heading above paragraph 52, all make this clear. While the execution of that intention was erroneous and irregular by not conforming to the Rules, Dianne, if she had read the pleading, would have known what Krandel was alleging about Dianne, personally. Referring to her affidavit dated August 15, 2023, it is clear that Dianne had read the pleading.
[15] Considering Dianne’s affidavit and, in particular, paragraphs 26 through 30, I find that Dianne was aware that a counterclaim was asserted against her in her personal capacity. Dianne testifies at paragraph 26 that she knew that Krandel “…references me ‘personally’ in the first paragraph of the counterclaim”. She further testifies that her lawyer explained to her that there were “deficiencies” in that pleading, and that her lawyer had asked defendant’s lawyer to have these corrected. Yet, while the corrections were not pursued prior to the expiry of the limitation period on March 14, 2022, such does not take away from the fact that Dianne was nevertheless, when the pleading was delivered two years earlier on March 13, 2020, then aware that a personal claim against her was asserted, albeit imperfectly and irregularly.
[16] My finding that Dianne was aware is consistent with the above referenced email exchange between Ms. Charlebois and Ms. Dawe. These two lawyers were also both long aware of the intention of and problems with the pleading, and with the ultimate and postponed intention of counsel for Krandel to correct it. Indeed, Ms. Charlebois wanted this corrected in January 2023 so the action, which the chronology as I further review below informs me had stalled, could be re-started so to finally advance.
[17] As to why there was delay in this matter, including on the part of the defendant to seek to regularize its pleading, as Ms. Dawe testified in her affidavit (paragraphs six and seven), the parties agreed to pursue mediation before exchanging affidavits of documents or otherwise moving the case forward to discoveries. The mediation was ultimately scheduled for February 23, 2022. I thus understand why the parties initially allocated resources toward settlement. After all, if the case settled, deficiencies in the pleading would no longer matter.
[18] That is not, however, to condone the significant irregularities with this pleading. Such should have been corrected sooner. I suspect that Ms. Dawe is now well aware of that obligation. Yet, the approach taken by counsel for defendant, wrong though it was, is understandable in these somewhat unique circumstances. I also note that such approach was seemingly condoned by counsel for plaintiffs until January 11, 2023, when Ms. Charlebois only then asked Ms. Dawe to “…regularize your pleading (as regards the claim against Dianne)…”.
[19] Dianne in her affidavit at paragraphs 32 through 36 agrees that the initial priority of both parties was to work toward settlement. Dianne explains that, after delivery of the defendant’s pleading, “thereafter, counsel for the parties entered into a lengthy series of settlement discussions with a view to determining whether the claim was capable of being resolved between the plaintiffs and Krandel (paragraph 32)”. Dianne also acknowledges that Krandel had health issues which led to the mediation being scheduled only in February 2022 (paragraph 36). Subsequently, due to a dispute with Krandel’s professional insurer, Krandel was no longer willing to proceed to mediation, as was also discussed by Dianne at paragraphs 40 through 48 of her affidavit.
[20] I conclude that the case bogged down while attempting to sort out what coverage Krandel had, with his insurer allegedly not being forthcoming in that regard. By early August 2022, the case was well and truly stalled. Thus, five months later, referring again to the January 11, 2023 email of Ms. Charlebois, she attempted to get the case moving forward as it was by then long obvious that no settlement discussions were then able to take place.
[21] The case, despite being a 2019 action, thus stalled at an early stage. There was no exchange of affidavits of documents, no discoveries; in fact, since the close of pleadings nothing of substance in the litigation transpired. The parties bogged down when initially discussing settlement and subsequently then trying to understand the insurer’s rationale for ostensibly denying coverage to Krandel.
[22] In my view, both sides let the case stagnate for a time. The plaintiff, which is the party typically in control of the pace of litigation, could have called a halt to the attempt to settle earlier on, put the goal of mediation on the “back burner”, and resumed the litigation process of documentary and oral discoveries earlier had it wished to do so. I conclude that, notwithstanding the well-argued position of Mr. Dochylo, both sides, with the plaintiff at least as responsible if not more so than the defendant, allowed the matter to be delayed and, ultimately, to stall.
[23] Addressing discovery, given the nature of the case as presently pleaded, if Dianne were to be added in her personal capacity, I do not see that likely elongating the documentary discovery process. In my view, the documents which the Dianne must disclose as estate trustee or in her personal capacity will likely be similar. Similarly, the oral examination of Dianne will unlikely be much elongated, if at all. Obviously, there will be her two lawyers present, yet this would not hardly be the first time that a party appearing in different capacities has different representation. I also conclude that if Dianne is added in her personal capacity, this will be unlikely to change or elongate the witness list for trial.
[24] The case is in its early stage so if Dianne is added tasks will not be duplicative, nor will they have to be re-done. Indeed, the work to be done if Dianne is added will likely not complicate the matter (which, since its inception is not, in any event, a straightforward claim but rather is a complex professional negligence case). Finally, I reiterate my earlier conclusion regarding Dianne’s knowledge of the personal claim against her before expiry of the limitation period, defective though the claim was in form. All this informs my subsequent consideration of the case-law.
Applying the Case-law to the Facts:
[25] Counsel well reviewed the case-law (and Rules) which each submitted did apply to or could be distinguished from the facts of this matter. While I have considered all the submissions made by Mr. Kestenberg and Mr. Dochylo, to avoid this case being delayed further, and to avoid elongating these reasons, I will only herein address what I find to be germane.
[26] As I consider the case-law, if I grant the defendant’s request, the plaintiff personally will be able to be sued even though it is beyond the limitation period. Yet if I do not grant the relief sought, Krandel is unable to pursue his Counterclaim against Dianne, personally. In my view, denying the defendant the opportunity to proceed with his Counterclaim against Dianne personally would be a greater injustice then granting the relief sought, even though the limitation period expired.
[27] A case similar with, yet not identical to, the within matter is Norman Towing v. Riordan Leasing Inc., 2022 ONSC 7167 (“Norman”). In that damages action initiated by plaintiff, defendants served their Statement of Defence and Counterclaim. The Counterclaim intended to implead a co-leasee, who was not originally a party to the action. In Norman, as in the within matter, through inadvertence the Counterclaim was not issued, and the limitation period eventually expired. Defendant sought a “nunc pro tunc” Order that the Counterclaim was issued before the expiry of the time limit. Plaintiff opposed, asserting that once the limitation period expired, a nunc pro tunc Order could not be made. Yet, the Court disagreed with the plaintiff and granted the Order sought.
[28] I review Norman further herein yet note that a distinction between that decision and the within matter is that, in Norman, the Counterclaim was ready to be issued prior to the expiry of the limitation period. The form of it was correct. All that counsel in Norman failed to do was to have it issued. In the within matter, given that there is no second title of proceedings as described at Rule 27.03(b) naming Dianne as a defendant to the Counterclaim, it is not now and was not then ready to be issued without it first being amended in that regard.
[29] Yet Norman is still relevant and helpful to my consideration of the within matter as, even though the title of proceedings does not have a Counterclaim, nor names Dianne as a defendant to a Counterclaim, what I find more important are the actual words of the pleading. The word “Counterclaim” is clearly used in the body of the document, and the wording, as excerpted above at paragraph 52, plainly states that Krandel “counterclaims against Dianne personally” for various heads of therein enumerated relief. Thus, the analysis in Norman is, I find, applicable to the within matter, notwithstanding the distinction regarding the use of the appropriate form.
[30] Justice Lemay in Norman refers to the Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v. Green 2015 SCC 60, [2015] 3 S.C.R. 801 (“Green”), observing that “there is a great deal of complexity to the question of whether a nunc pro tunc order can be issued.” The Justice notes that a consideration of the purpose of limitation periods is a beginning point in Green. That decision addressed the purpose as follows:
[57] This Court has generally recognized that limitation periods have three purposes known as the certainty, evidentiary and diligence rationales: Novak v. Bond, [1999] 1 S.C.R. 808, at paras. 64-67, per McLachlin J.; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at pp. 29-31, per La Forest J. Limitation periods serve “(1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”: P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at p. 123.
[31] Applying the forgoing to the facts of the within matter, Dianne clearly knew of the Counterclaim against her prior to the expiry of the limitation period. In my view, it is thus not at all unfair to Dianne to allow the relief sought by the moving party. As to diligently pursuing claims, as discussed above, neither side acted with much if any alacrity with respect to pushing the case forward in this matter. As to the nature of the Counterclaim itself, the substance of it does not change if I grant the relief requested, only the form changes (is regularized).
[32] At paragraph 47 and following in Norman, referring again to Green, the Court discusses the relevant factors to be considered when considering the nunc pro tunc relief sought in the within matter:
This brings me back to another passage in Green, where the Court discusses the factors that should be considered in granting a nunc pro tunc order. At para. 90, the majority states:
[90] In fact, beyond cases involving the death of a party or a slip, the courts have identified the following non-exhaustive factors in determining whether to exercise their inherent jurisdiction to grant such an order: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. (Citations omitted)
[48] As I have noted, the decision in Green is somewhat fractured because the Court was closely divided and came to different conclusions on the different fact scenarios that are encompassed in the Green decision. However, Cromwell J., who appears to have been in the majority on most issues, made the following observations (at paras. 140 and 141):
[140] The motion judge next turned to the fact that exercising his discretion would not undermine the purposes of limitation periods:
Third, extending the limitation period in this particular case would not do violence to the purposes of limitation periods, including the need of parties to order their affairs after reasonable periods of repose and to avoid evidence becoming stale or lost. The defendants have known of the action from an early stage and have mounted a full evidentiary response. The limitation period could have been extended without unfairness to the defendant and without impairing public confidence in the administration of justice. [para. 543]
[141] This is a proper consideration and I see no error in the motion judge’s reliance on it here. I would put the point more bluntly. Holding that the plaintiffs’ claim is irremediably statute-barred is to defeat that claim by allowing the defendants to take advantage of an after-the-fact “gotcha” — a technical defence, the application of which in this case does not further either the purpose of the limitation defence or reinforce public confidence in the administration of justice.
[33] Applying all the above to the within matter, beginning with the six factors noted in paragraph 90 of Green, I conclude as follows:
- Dianne will not be prejudiced if the relief sought is granted. Again, not to belabour the same points, she was aware of the counterclaim well prior to the expiry of the limitation period, and both sides were content to let the litigation sit while attempting, perhaps for too long, settlement. As the case is at an early stage, there is nothing yet “thrown away” in time or effort.
- If the relief had been sought prior to the expiry of the limitation period, it would have been granted. This within circumstance in my view is akin to curing an irregularity.
- Ms. Dawe has made clear in her affidavit that she did not intend to fail to follow the Rules. Her error was not deliberate. Obviously, this is a case of inadvertence. As to why the error was not corrected sooner, again, both sides were, as the emails between counsel clearly demonstrate, content to let the litigation sit for some time without the errors being sought to be rectified while settlement efforts were made.
- The relief sought cures the irregularity.
- This factor is not applicable as the delay in this case was not caused by court processes, but rather by the parties themselves.
- In my view, granting the relief, to allow the Counterclaim to proceed on whatever merits it may or may not have, is far better than to deny a litigant an opportunity based on “technicalities”. The law has long since moved away from preferring form over substance, after all.
[34] As to the helpful discussion at paragraphs 140 and 141 from Green, in this within matter also there is no violence done to the purpose of limitation periods if I allow the relief sought. To reiterate, Dianne has long known of the Counterclaim against her personally. In my view, not to allow the relief sought would be what could bring the administration of justice into disrepute—by preventing a case from proceeding and being adjudicated on its merits (or lack thereof).
[35] A 2023 decision referenced by Mr. Dochylo, Stayside Corporation Inc. v. Cyndric Group et al., 2023 ONSC 4093 (“Stayside”), is quite helpful in discussing Rule 5.04, and how it applies in cases such as the within matter. The decision notes that Rule 5.04 “gives the court the discretion to permit or deny the addition of a party” (paragraph 46). Stayside referenced the Court of Appeal decision of Mazzuca v. Silvercreek Pharmacy Ltd., [2001] 8620 as follows:
[47] At paras 41 and 42, the Court of Appeal stated:
[41] The established principles concerning rules 26.01 and 5.04(2) confirm the continuing importance, as a base consideration, of the issue of actual prejudice in determining applications to amend pleadings, including those designed to add, delete or substitute parties, after the expiry of a limitation period. The centrality of this issue is also confirmed by the express language of rules 26.01 and 5.04(2) in their current form. Both the related jurisprudence and the rules themselves thus underscore a simple, common sense proposition: that a party to litigation is not to be taken by surprise or prejudiced in non-compensable ways by late, material amendments after the expiry of a limitation period. If such surprise or actual prejudice is demonstrated on the record, an amendment generally will be denied.
[42] At the same time, proof of the absence of prejudice will not guarantee an amendment. Rather, when a change of parties is sought after the expiry of a limitation period, the circumstances of all affected parties should be examined to determine, on the facts of the individual case, whether sufficient special circumstances are present to support the requested amendment. In those cases where leave is sought to add, delete or substitute a new party, the examination of special circumstances involves consideration of the knowledge of both the moving party and her agents at the time of the commencement of the proceedings regarding the proper parties to be named and of the opposing party in relation to the nature of the true claim intended to be advanced.
[48] Once this threshold has been met, under Rule 26.01, the court must grant leave to amend.
[49] At para. 25 of Mazzuca, the Court of Appeal referred to Holmstead & Watson: Ont. Civil Procedure, Vol 2 (Toronto: Carswell 1993) at p. 5-34 to 5-35, which stated that Rule 5.04(2) grants the court discretion to ensure procedural fairness including issues such as: state of the action, whether trial is imminent, and whether examinations for discovery have taken place.
[36] Beginning with the reference to Holmstead & Watson, in this case to grant the relief sought would not deny procedural fairness to Dianne. Again, the state of the action is in its infancy, no trial is imminent, and there have been no discoveries. It is correct that lawyer Dawe was made aware of her mistake earlier yet did not take steps to rectify it until after the limitation period. As reviewed above, however, both sides, I find based on the evidence before me, tacitly agreed to put the litigation in abeyance while they pursued settlement attempts. Not taking the steps to correct the error, by bringing this within motion sooner and before the expiry of the limitation period, in my view, assessing all the evidence, caused no actual prejudice to Dianne.
[37] Stayside discussed “special circumstances” and limitation periods at paragraphs 51 and 52:
[51] The issue of the doctrine of “special circumstances” was expanded in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, where the Supreme Court explained:
[113] In essence, the doctrine allows a court to temper the potentially harsh and unfair effects of limitation periods by allowing a plaintiff to add a cause of action or a party to the statement of claim after the expiry of the relevant limitation period. I hasten to add that, as the Court recognized in Basarsky v. Quinlan, [1972] S.C.R. 380, and as the word “special” — or “peculiar” — suggests, the circumstances warranting such an amendment will not often occur.
[114] As an offspring of equity, the doctrine of special circumstances is naturally concerned with fairness to the parties. Indeed, this concern was at the forefront of Lord Esher’s mind in Weldon. Unsurprisingly, no exhaustive list of the circumstances that qualify as “special” has been proposed by the courts, and I believe it would be risky and unwise to do so. I note however that, concerned with not prejudicing a defendant, this Court has paid particular attention to whether the facts relevant to the extinguished action were pleaded in the original statement of claim and whether the defendant was aware of them during discovery: Basarsky; see also Dugal, at paras. 60-68. The factors enumerated by the Ontario Court of Appeal in Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401, at para. 23, which were reiterated by van Rensburg J. in IMAX, are also helpful guides:
As such, “special circumstances” include factors such as: the relationship between the proposed claim and the existing action; the true nature of all of the claims; the progress of the action; and the knowledge of the parties… [IMAX, at para. 71].
[52] The expiry of a limitation period leads to a rebuttable presumption of prejudice which may be rebutted by evidence that the party received notice of the claim within the limitation period [emphasis added].
[38] As repeated, Dianne had notice of the Counterclaim before the expiry of the limitation period. The presumption of prejudice is thus rebutted. As in Stayside (paragraph 77), the facts in the within action have already been pleaded and are known. Nothing substantively changes in what is being alleged; only the form of the pleading is regularized if the relief sought is granted. In my view, it would indeed be “harsh and unfair” to Krandel, referring to the above excerpt from the Green decision, if the impact of the limitation period were not to be tempered in this within matter.
[39] The over-arching principle of civil litigation, after all, is found in Rule 1.04: “…to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” [emphasis added]. Adding Dianne personally as a defendant to the Counterclaim, which was always what was intended and was known to Dianne, will allow this case to be fully aired and addressed on its merits, without the case being complicated because of where it currently stands—still near the beginning of the litigation process.
Disposition:
[40] The defendant is granted:
(a) an Order for leave to issue the Counterclaim, attached as Schedule "A" to defendant’s Amended Notice of Motion effective March 13, 2020, nunc pro tunc; (b) an Order adding Dianne Herzog in her personal capacity, as a Defendant to the Counterclaim; (c) an Order extending the time to serve the Counterclaim, attached as Schedule "A" on Dianne Herzog personally.
[41] Dianne, pursuant to the factum prepared by Mr. Dochylo, sought as alternative relief extending time to deliver a defence to the Counterclaim, as well as to plead a limitation defence to the Counterclaim.
[42] Clearly, Dianne in her personal capacity must have an opportunity to defend the counterclaim. Fairness cuts both ways. Dianne will have no less than 30 days from the day of service of the Counterclaim upon her to deliver her defence to Counterclaim. I trust counsel can cooperatively agree on a timeline for delivery of Dianne’s pleading.
[43] Addressing the limitation defence, for purposes of this motion, I have been clear that, notwithstanding missing the limitation period by Krandel, Dianne knew of his Counterclaim. Yet it may be that the pleading of a limitation defence goes to the substance of the allegations in the Counterclaim. It is not for me at this stage to foreclose any viable claim or defence. Thus, leave is granted to Dianne to plead a limitation defence.
Costs and an Order:
[44] The parties were confident that they could resolve the issue of costs once I issued my decision on the merits of the motion. If they for some reason cannot, then a tele-case-conference can be held with me.
[45] Assuming counsel agree on the form of Order, it may be sent to ATC Ms. Sharma for forwarding onward to me. Again, if there are difficulties with that, such can also be resolved at a case-conference.
Associate Justice J. Josefo