When can a party be added after the expiry of the limitation period?

Ontario, Canada


The following excerpt is from Ioannou v. Evans, 2007 CanLII 46708 (ON SC):

The leading case on adding a party after the expiry of the limitation period even when no issue of prejudice exists is Mazzuca v. Silvercreek Pharmacy Ltd.[1] At the same time, proof of the absence of prejudice will not guarantee an amendment. Rather, when a change of parties is sought after the expiry of a limitation period, the circumstances of all affected parties should be examined to determine the facts of the individual case, whether sufficient special circumstances are present to support the requested amendment. In those cases where leave is sought to add, delete or substitute a new party, the examination of special circumstances involves consideration of the knowledge of both the moving party and her agents at the time of the commencement of the proceedings regarding the proper parties to be named and of the opposing party in relation to the nature of the true claim intended to be advanced.

Master Polika dealt with similar facts as in the present case in Kostecki v. Goodman[2] where he found that special circumstances were present to allow the amendment. The special circumstances he found also exist in this case: Evidence led to the erroneous but not unreasonable conclusion that the named defendant was the owner of the automobile. The insurer was aware of the accident immediately and knew of the seriousness and that there was an injury. The true owner of the automobile has known about the accident since shortly after it happened. There is an explanation for the error and no evidence of bad faith.

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