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January 15, 2014

Motion to Add Party Must be Served but not Heard Before Limitation Period Expires

When a plaintiff seeks to add a party defendant, must the motion be heard prior to the expiry of the limitation period?

According to Justice Edwards in Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 (S.C.J.), the motion must be served, but not necessarily heard, prior to the expiry of the limitation period.  Justice Edward held that the suggestion that a motion to add a party must be served, argued and a court order obtained prior to the expiry of the limitation period was "lacking in common sense".  There are lengthy delays in obtaining motion dates and the moving party is therefore "very much in the hands of the court" as to whether the motion can be argued and disposed of within the limitation period.

In making his decision, Justice Edwards followed the Divisional Court in Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.), where the plaintiff was permitted to add a claim for conspiracy, and declined to follow Marks v. Ottawa, 2013 ONSC 1089 (S.C.J.) where the Court refused to permit the addition of a party where the motion had not been heard prior to the expiry of the limitation period.

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