Can defendants be added after time limits expire?

January 19, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The plaintiff in the case was hurt when he was the passenger in a car that was hit by another vehicle in 2011. The accident happened on a country road that was extremely icy and slippery. The driver of the other car lost control on the road and struck the plaintiff’s car. The plaintiff started an action against the driver of the other car. The Statement of defence did not make any reference to the part of the municipality for failing to undertake proper winter road maintenance. The defendant stated that he lost control of his car on black ice, and subsequently obtained an order to issue a third party claim for contribution and indemnity against the municipality. The plaintiff then successfully moved to amend his statement of claim adding the municipality as defendants after the expiry of the applicable limitation period. The municipality brought forward a motion for leave to appeal that order.

The judge reviewed the motion and dismissed it on the grounds that statement of defence did not make reference to the potential liability of the municipalities. It was not until 3 years after the accident that the suggested negligence of the municipality was brought forward. The plaintiff exercised due diligence in determining the parties liable by obtaining the MVAR and moving to discovery and bringing this motion shortly afterward. The plaintiff could not possibly have named the municipalities as defendants until the defendant’s examination for discovery in 2014 when the municipalities were raised as contributing to the accident.

Upon application of the two step rule in the Rules of Civil procedure sec 62.02 the Judge determined that neither of the two steps applied to the facts. The judge denied the leave to appeal.

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