CITATION: Gillis et al. v. Geary et al., 2026 ONSC 3218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nelson Gillis, Crystal Gillis and Hillary Melanson, Plaintiffs
AND:
Mason Geary, Lars Andersen and Debra Andersen, Defendants
AND:
James Kobalka
BEFORE: Brochu J.
COUNSEL: Justin Linden, for the Plaintiffs
Evann Waschuk for Lars Andersen and Debra Andersen, the Defendants
Alyssa Mariani for Lynda Troup, for Mason Geary, the Defendant
Third Party, no one appearing
HEARD: May 28, 2026
ENDORSEMENT on motion
Overview
1The Defendants, Lars Andersen and Deborah Andersen (the “Andersens”), have brought a motion seeking leave to amend their statement of defence.
2The Andersens advance that the Plaintiffs’ claim was commenced outside of the 15-year ultimate limitation period prescribed by s. 15 of the Limitations Act, 2002, S.O. 2002, c. 24, and is therefore statute-barred.
3The Plaintiffs oppose the Andersens’ motion for leave to amend their statement of defence.
4In the event the Andersens are successful and are granted leave to amend their statement of defence, the Plaintiffs have brought a cross motion seeking leave to amend and further particularize their statement of claim in response to the proposed amendments to the statement of defence. They also seek an order requiring the Defendants to attend for further discovery on the issues raised in their proposed amendments.
5The Andersens oppose the Plaintiffs’ cross motion.
6The Defendant, Mason Geary (“Geary”), does not oppose either motion. He does wish to preserve his right to file a third-party claim should the parties be successful with their motions.
7The third party, James Kobalka (“Kobalka”) was not present and did not participate in these motions.
8For the following Reasons, both motions are granted.
Nature of the Proceedings
9This action arises from a staircase collapse incident that occurred on or about September 20, 2024, at 222 Hamell Road, Red Lake, Ontario, (the “Property”) in which the Plaintiff, Nelson Gillis, sustained personal injuries.
10The fall occurred while the Plaintiff was helping Kobalka move a couch from an upper unit of the premises.
11The Property was purchased by the Andersens in or around 1991 or 1992 and included four suites that were rented to residential tenants.
12In or around 1993, Lars Andersen constructed an exterior staircase at the Property, which enabled tenants to access the residential suites on the upper floors of the Property.
13In or around October 2021, the Andersens sold the Property to the Defendant Geary. Consequently, at the time of the incident, Geary was the owner of the Property.
14The action was commenced by statement of claim issued on October 11, 2024.
15The Defendant, Geary, delivered a statement of defence on or about November 29, 2024.
16The Andersens delivered a statement of defence and crossclaim on or about January 8, 2025. They did not plead any limitation defence under s. 15 of the Limitations Act.
17On or about January 23, 2025, Geary issued a third-party claim against Kobalka. On or about February 4, 2025, Kobalka delivered a third-party defence.
18The examinations for discovery of Lars Andersen and Mason Geary were conducted on July 29, 2025.
19The Plaintiffs filed their trial record on November 12, 2025. The matter has been set down for trial, a pre-trial conference has been scheduled for January 20, 2027, and the action has been placed on the April 2027 running list in Thunder Bay.
The Parties’ Positions
The Andersens
20The Andersens advance that they have recently discovered that the Plaintiffs’ claim against them has been commenced outside of the ultimate limitation period. As a result, they need to amend their statement of defence in order to plead all available defences.
21The amendments sought relate to the fact that the date on which the act or omission on which the Plaintiffs’ claim is based, took place in 1993, when Lars Andersen constructed the staircase. Accordingly, it is their position that the Plaintiffs’ claim is statute barred in accordance with the 15-year ultimate limitation period prescribed by s. 15 of the Limitations Act.
22They further submit, that the proposed amendment does not introduce new facts. Instead, it pleads the legal consequences of facts already disclosed.
23It is argued that the Plaintiffs will suffer no non-compensable prejudice from the addition of the limitation defence. Any alleged prejudice to the Plaintiffs can be addressed, if necessary, by a reasonable timetable adjustment and/or costs.
The Plaintiffs
24The Plaintiffs advance that this is not a case where the Defendant is seeking a minor clarification or particularization of an existing defence. The Andersens seek to introduce a new statutory limitation defence after pleadings have closed, discoveries have been completed, the trial record has been filed, the action has been set down, and pre-trial and running list dates have been assigned. Furthermore, the Andersens, in moving to amend their defence, oppose the Plaintiffs’ motion to amend their statement of claim in response to the proposed amendment.
25They indicate that the proposed defence is premised on a fact that was not newly discovered. It was known to the Andersens when the statement of defence and crossclaim was delivered on January 8, 2025, that Lars Andersen had constructed the staircase in or around 1993. The Andersens were also aware of this fact throughout the duration of their ownership of the Property.
26In these circumstances, the ultimate limitation period ought to have been pleaded when the Andersens filed their original defence. At minimum, it should have been pleaded immediately or raised promptly after Lars Andersen indicated at his discoveries that he constructed the staircase in approximately 1993.
27The proposed amendment is not a routine pleading correction. Should the amendments be allowed, the Plaintiffs will have to address a new limitation theory after discoveries have already been completed, and the action has been set down. It is argued that the Andersens should not be permitted to raise that issue this late while opposing the plaintiffs’ ability to plead to it and conduct the limited further discovery required to meet it fairly.
28If leave is granted to the Andersens, it should be conditional on corresponding leave to the Plaintiffs, limited further discovery, and costs thrown away or costs of the motion and cross motion.
Issues
29The following are the issues to be determined on these motions:
Should the Andersens be granted leave to amend their statement of defence to plead a limitation defence?
If leave is granted, should the Plaintiffs be granted corresponding leave to amend and to further particularize their statement of claim and/or deliver a reply, together with limited further discovery on the limitation issues raised?
The Law and Analysis
Rules of Civil Procedure
30Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, addresses amendment of pleadings and provides as follows:
General Power of Court
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
When Amendments may be Made
26.02 A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
31Rule 48.04(1) provides that a party who has set an action down for trial shall not initiate or continue any motion or discovery without leave of the court.
Case Law
32The Court of Appeal for Ontario in 15888444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, at para. 25, summarized eight principles applicable for motions for leave to amend (citations omitted):
The rule requires the court to grant leave to amend unless the responding party would suffer non compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the courts process; or the pleading discloses no reasonable cause of action.
The amendment may be permitted at any stage of the action.
There must be a causal connection between the non compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.
The non compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.
Non compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.
At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed.
The onus to prove actual prejudice lies with the responding party.
The onus to rebut presumed prejudice lies with the moving party.
See also Horani v. Manulife Financial Corporation, 2023 ONCA 51; Hardcastle v. Corporation of the City of Windsor, et al., 2025 ONSC 5610.
Application to the Case
33In this case, the only real prejudice alleged by the Plaintiffs would result if the court does not grant them the relief sought in their cross motion to amend and particularize their statement of claim.
34In my view, it is only fair that should the Andersens be granted leave to amend their statement of defence to raise a new defence that the action is statute-barred, that the Plaintiffs in turn, be entitled to amend their pleadings as well. Should the Andersens have initially advanced this defence, the amendments sought be the Plaintiffs would have been available without leave.
35Counsel for the Andersens took exception to the nature of the amendments being sought. It was further argued that the Plaintiffs will be entitled to file a Reply and that should suffice.
36I also questioned Plaintiffs’ counsel on the necessity to amend the Statement of Claim as opposed to filing a Reply. It is the Plaintiffs’ position that the Statement of Claim sets out the factual basis for the claim and the pleading that guides the action. On the other hand, a Reply simply responds to the Statement of Defence.
37In the end, not much turns on this issue. The Plaintiffs are correct that they would have been entitled to amend their Statement of Claim as they wished should the Andersens have initially plead the Limitations Act defence.
38The facts upon which the Andersens rely to request leave to amend, were well known to them at the time they filed their Statement of Defence. Although, in his affidavit, Lars Andersen states that he has recently been advised by legal counsel of the limitation defence, the facts upon which they are relying are not newly acquired. In this regard, the Statement of Defence clearly indicates that the Andersens “admit that in or around 1993, the Defendant Lars Andersen constructed an exterior staircase at the Premises”.
39The only potential prejudice can be addressed by reciprocally allowing the Plaintiffs to file an amended Statement of Claim. This is a relief I am prepared to grant to the Plaintiffs, and fairness dictates that such leave should be granted.
40The amendments sought by the Andersens are not scandalous, frivolous, vexatious or an abuse of process.
41The Limitations Act defence is a viable and reasonable defence. The Andersens should be entitled to advance all potential defences.
42There is no question that this may result in further pleadings and steps in the litigation. However, this action is relatively young. It has progressed quite efficiently to date. Furthermore, the request for the amendment does not come on the eve of trial, a few weeks prior to trial or even shortly before trial, as was the case in Horani and Burton v. Docker, 2023 ONSC 1974. In my view, by imposing a litigation timetable, the parties should be able to remain on the running list for April 2027. Any delay occasioned should be relatively minor.
43Furthermore, any additional expenses resulting from the amendments can be compensated by costs.
Conclusion and Order
44For the above reasons, leave is granted to the Andersens to file an Amended Statement of Defence. Consequently, leave is also granted to the Plaintiffs to file an Amended Statement of Claim.
45I had asked the parties to provide the Court with a timetable in the event the reliefs were granted.
46The following litigation timetable and timelines were proposed by and agreed to by the parties (to the exception of the Third-Party, Kobalka, who did not participate in the motions):
The Plaintiffs shall have five (5) days from the release of this Endorsement to file an Amended Statement of Claim.
The Defendants, Lars Andersen and Deborah Andersen, shall have fifteen (15) days from the date of service of the Amended Statement of Claim to file their amended Statement of Defence.
The Plaintiffs shall have ten (10) days from the date of service of the Amended Statement of Defence to file their Reply, if any.
The Defendant, Mason Geary, shall have thirty (30) days from the date of service of the Andersens Reply, or from the date time to file the Reply has expired, to commence a Third-Party claim against the Andersens.
The Andersens shall have fifteen (15) days from the date of service of the Third-Party claim to file a Statement of Defence in the Third-party action.
Any additional examination for discovery shall be completed by October 31, 2026.
47In the event the Plaintiffs do not anticipate filing a Reply and/or the Defendant, Mason Geary, of advancing a Third-Party claim, counsel should advise the other parties as soon as that decision has been made. In other words, the parties do not need to wait on the date closest to the expiry of the above timelines to advance of their position, as this could represent substantial time saving, and might allow the parties to proceed to the additional examinations for discovery earlier.
48The additional examinations for discovery are to be limited to the issues raised in the amended pleadings.
49Counsel for the Andersens had also previously indicated their intention to bring a summary judgment motion. I understand that a case conference was held before Wojciechowski J. on March 23, 2026, to determine the sequence in which the pleadings and summary judgment motions would be heard, and that the parties were provided authority to schedule a full day summary judgement motion. Should the summary judgment motion still be viable after the amendments have been completed, I remind the parties that they are required to schedule a pre-hearing conference at least six weeks prior to the summary judgment motion date.
Costs
50If the parties cannot agree on costs, the Defendants shall serve and file costs submissions within 10 days of the release of this endorsement. The Plaintiffs’ submissions shall be served and filed within 10 days of the receipt of the Defendants’ submissions. Any reply submissions shall be served and filed within 5 days of receipt of the responding submissions. All costs submissions shall not exceed three pages, not including any offers to settle or bills of costs.
51Submissions received beyond these deadlines will not be considered. Costs will be deemed settled.
Brochu J.
Date June 1, 2026
CITATION: Gillis et al. v. Geary et al., 2026 ONSC 3218
COURT FILE NO.: CV-24-0360-00
DATE: 2026-06-01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nelson Gillis, Crystal Gillis and Hillary Melanson, Plaintiffs
AND:
Mason Geary, Lars Andersen and Debra Andersen, Defendants
AND:
James Kobalka
BEFORE: Brochu J.
COUNSEL: Justin Linden, for the Plaintiffs
Evann Waschuk for Lars Andersen and Debra Andersen, the Defendants
Alyssa Mariani for Lynda Troup, for Mason Geary, the Defendant
Third Party, no one appearing
ENDORSEMENT on motion
Brochu J.
Released: June 1, 2026