Monday, March 2, 2015

Pleading amendment orders interlocutory

Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137:

[5]       Decisions permitting amendments to pleadings are normally understood to be interlocutory in nature: see Merling v. Southam Inc. (2000), 183 D.L.R. (4th) 748 (Ont. C.A.), at para. 2. However, the appellant argues that the motion judge's decision is properly characterized as final because it deprives the appellant of its defence to that part of the action based on constructive knowledge. 

[6]       The appellant misconceives the nature of the motion judge's decision. As this court noted recently in Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53, at para. 22, the issue is not whether the matter before the motion judge has been disposed of finally by an order but, instead, whether an order brings an end to an action or resolves a substantive claim or defence.

[7]       The motion judge's decision simply allows the matter to proceed to trial. The decision did not have the effect of depriving the appellant of a substantive defence. It remains open to the appellant to advance a substantive defence to the argument that a duty to a non-customer can be created based on constructive knowledge and that constructive knowledge can be made out on the facts of this case. Thus, the decision of the motion judge is interlocutory in nature and it follows that the appeal lies to the Divisional Court.  

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