In Taylor v. Mayes, 2022 ONCA 297, the Court of Appeal for Ontario held that a motion judge can make a final determination of a limitation issue on a motion for leave to amend a pleading involving the addition of a party such that leave to plead a limitation defence will not be granted to the newly added defendant or third party.
This lawsuit is about a motor vehicle accident that occurred on Highway 401 in February 2013 when George Taylor’s vehicle was rear-ended by a vehicle that was owned and operated by Sean Mayes and Diane Story, respectively. Mr. Taylor’s statement of claim was served on Mr. Mayes and Ms. Story on May 12, 2015. The defendants blamed the accident on the presence of snow and slush on the highway owned by Her Majesty the Queen, in Right of the Province of Ontario, as Represented by the Ministry of Transportation of Ontario (“MTO”). By third party claim issued on November 10, 2016, Mr. Mayes and Ms. Story sought contribution and indemnity against MTO.
MTO refused to participate in the documentary and oral discovery process until compelled to do so by court order dated October 1, 2019. During examinations for discovery on November 19, 2019, MTO identified Cruickshank Construction Limited (“Cruickshank”) as the contractor that was responsible for winter maintenance of the portion of Highway 401 where the accident took place.
The defendants, in turn, brought a motion to add Cruickshank as a party to the third party claim. The motion was opposed by Cruickshank and MTO on the basis that any claim against Cruickshank was time barred. After reviewing the comprehensive evidentiary record, the motion judge determined that “the defendants’ third party claim against Cruickshank is not statute barred by virtue of the Limitations Act. Consequently, Cruickshank is not at liberty to plead a limitation defence to the third party claim.”
On appeal, Cruickshank argued, in the alternative, that it should have been added as a third party with leave to plead a limitation defence. The Court of Appeal upheld the decision of the motion judge and underscored Rule 26.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, which allows the court to grant leave to amend a pleading “on such terms as are just” unless non-compensable prejudice would occur.
The Court of Appeal refused to give Cruickshank a “second kick at the can” on the limitation issue:
 In an appropriate case, a motion judge can make a final determination on a limitation issue: see Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, at para. 38. In our view, it was just for the motion judge to do so. The parties provided a comprehensive record and made full submissions on the limitation issue. The litigation is now on the cusp of being seven years old. The motion judge’s legal analysis in support of her decision to add Cruickshank as a third party is sound. Taking these points together, what this seven-year-old litigation does not need is a second round in the ring on the limitation issue.