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Civil Litigation - Joinder - Parties

. Jonker v. Township of West Lincoln

In Jonker v. Township of West Lincoln (Div Court, 2023) the Divisional Court considered a motion to add a party to a JR, here complicated by the expiry of a limitation period:
[1] The applicant, Harold Jonker (“Jonker”) brings this motion to add the Integrity Commissioner for the Township of West Lincoln (“the Commissioner”), to the application for judicial review, pursuant to s. 9(2) of the Judicial Review Procedures Act, RSO 1990, c. J. 1, (“JRPA”).


[29] The applicant advances the Rules of Civil Procedure in support of his position. Rule 26.01 of the Rules of Civil Procedure provides that a Court shall presumptively grant leave to amend a pleading. That Rule provides as follows:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[30] In addition to Rules 26.01 and 26.02, this motion is also governed by Rule 5.04, which effectively incorporates elements of 26.01, and also addresses the joinder of parties and grants the court a measure of discretion as to whether an amendment joining a party to an original proceeding should be permitted.

[31] Rule 5.04(2) complements Rule 26.01, dealing specifically with the addition of a party:
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[32] The inclusion of the word “may” in Rule 5.04 means that the court retains discretion to refuse the amendment, even in the absence of non-compensable prejudice. The onus on proving prejudice is on the party alleging it, unless a limitation period has expired, in which case the party seeking the addition must lead evidence to explain the delay and displace the presumption of prejudice.


[43] Where one seeks to add a party after the expiration of a limitation period, a court will consider whether there are special circumstances justifying the exercise of its discretion to allow such an amendment. In a frequently quoted passage from the case of Deaville v. Boegeman, 1984 CanLII 1925, the Ontario Court of Appeal set out the approach to be taken as follows:
[18] A number of courts have made rather heavy weather out of the meaning of "special circumstances" and have sought to establish conditions or detailed guidelines for the granting of relief after the expiry of the limitation period. This is a discretionary matter where the facts of the individual case are the most important consideration in the exercise of that discretion. While it is true that the discretion is not one that is to be exercised at the will or caprice of the court, it is possible to outline only general guidelines to cover the myriad of factual situations that may arise.

[45] With respect to Commissioner, the 30-day limitation period set out in s. 5(1) of the JRPA has clearly expired. Not by mere days, but by months. Accordingly, to add the Commissioner as a party to this proceeding, the applicant must satisfy the tests under Rule 5.04 and s. 5(2) of the JRPA. Specifically, the applicant requires evidence as to an explanation of the delay to displace the presumption of prejudice that arises as a result of the expiration of the 30-day limitation period and demonstration that there are apparent grounds for the relief sought with respect to the Commissioner’s investigation and Report.
. Rebello v. Ontario

In Rebello v. Ontario (Div Court, 2022) the Divisional Court considers the sometime necessary interaction between adding a party [R5.04] and amending pleadings [R26.01]:
[14] The Associate Justice referred to Rule 26.01 of the Rules of Civil Procedure and the legal principles applicable to a motion for leave to amend. The Associate Justice correctly noted that “amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action.” The Associate Justice further noted that the amendments must be tenable at law. The Associate Justice did not err in his application of the principles applicable to a motion for leave to amend.

[15] However, the Associate Justice did not make reference to or apply Rule 5.04(2), which specifically deals with amendments to add parties, and states as follows:
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[16] In Plante v. Industrial Alliance Life Insurance Co., 2003 CanLII 64295 (ONSC), Master MacLeod (as he then was) set out the test for adding a party under rule 5.04(2) as follows:
a) The proposed amendment must meet all of the tests under Rule 26.01.

b) Joinder should be appropriate under Rule 5.02(2) or required under Rule 5.03. The addition of the parties should arise out of the same transaction or occurrence (Rule 5.02(2)(a)), should have a question of law or fact in common (Rule 5.02(2)(b)), or the addition of the party should promote the convenient administration of justice (Rule 5.02(2)(e)). Adding a party will be particularly appropriate if it is unclear which of the original defendant or the proposed defendant may be liable (Rules 5.02(2)(c) or (d)), or if it is necessary that the proposed defendant be bound by the outcome of the proceeding or his or her participation is otherwise necessary to allow the court to adjudicate effectively (Rule 5.03(1)).

c) Joinder should not be inappropriate under Rule 5.03(6) or 5.05. The addition of a party should not unduly delay or complicate a hearing or cause undue prejudice to the other party. In a case-managed proceeding, it may also be appropriate to withhold consent if it will cause significant disruption to the court-ordered schedule.

d) Addition of a party will not be permitted if it is shown to be an abuse of process. Abuse of process will exist where the addition of a party is for an improper purpose such as solely to obtain discovery from them, to put unfair pressure on the other side to settle, to harass the other party or for purely tactical reasons.

[Internal citations omitted.] See also, Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955.


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Last modified: 28-03-23
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