In Chorny the plaintiff was not in existence at the time that it commenced the action; a failure to file annual returns (a matter unrelated to the cause of action) led to an administrative dissolution of the plaintiff. The plaintiff was revived after the limitation period for the claim advanced had expired, although the claim was issued within the limitation period.
The action was for monies loaned on notes and there is no suggestion the monies were not advanced.
The Court held:
"[28] The case is governed by 602533 Ontario Inc. v. Shell Canada Ltd., 37 O.R. (3d) 504 (C.A.) (and see also Swale Investments Ltd. v. National Bank of Greece (Canada), [1997] O.J. No. 4997 and Ontario sprinkler Sales Ltd. v. Emco Ltd., 28 O.R. (3d) 155 (Gen. Div.). As the Court of Appeal observed in 602533 v. Shell, supra, where a claim is issued outside a limitation period, a defendant need not show actual or any prejudice to take advantage of the limitation defence. In that case, as here, the plaintiff was a dissolved corporation when the original claim was issued. The claim was therefore a nullity. Between the commencement of the action and the revival of the corporation, the limitation period lapsed and the defendant Shell was entitled to rely on it. There is, in my view, no reasonable basis for distinguishing the case at bar from 602533 v. Shell."
As a result, the claim was dismissed. Certainly the case law supports the decision and the decision is careful and worth reviewing. Some might ask if denying judgment for monies advanced on a loan, where the loan is not disputed, because of a failure to fulfill a government filing having nothing to do with the loan is sensible. That, of course, is a question beyond the scope of a mere case summary.
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