Vito Auciello

The self-represented appellants appealed an Associate Justice's order refusing leave to amend their statement of claim in a property dispute concerning air rights and exhaust vents.

The Divisional Court upheld the refusal to add a new corporate plaintiff due to the expiry of the limitation period.

However, the court found the Associate Justice made palpable and overriding errors in refusing amendments related to windows, a venting system, and specific heads of damages, as these were not new causes of action and caused no non-compensable prejudice.

The appeal was allowed in part, permitting the amendments subject to the respondent's right to conduct further discovery at the appellants' expense.

The appellant sought an adjournment, which was refused.

The Court of Appeal quashed the appeal for lack of jurisdiction, noting that although the original Superior Court action claimed a higher amount, it was settled together with a small claims court action for a global amount within the jurisdiction of the small claims court.

Therefore, any appeal lies to the Divisional Court.

Costs of $2,000 were awarded to the respondents.