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Civil Litigation Dicta - Pleadings - Third Party Claims. Maillet v. Deren
In Maillet v. Deren (Ont CA, 2025) the Ontario Court of Appeal dismissed an interlocutory decision that denied the appellant's "motion for leave to issue a third party claim", here in dog bite (on a child) litigation.
Here the court considers the test for granting leave to issue a late third party claim:[4] The motion judge dismissed the motion on two grounds. One was that the motion judge found that the respondent would suffer prejudice if the appellant was granted leave. The prejudice found by the motion judge was the prospect of further delay in the proceeding; that the respondent would lose the benefit of his father as his litigation guardian; and that further “cross-examination of the child” would occur.
[5] The other ground found by the motion judge was the lack of merit in the proposed third party claim. While the motion judge alternated between saying that the proposed third party claim had no merit and that it had little merit, it is clear that the motion judge ultimately concluded that the proposed third party claim could not succeed.
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B. Discussion
(i) Assessing Prejudice Under r. 29.01(1.2)
[6] Rule 29.02(1.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 reads:A third party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby. [7] The wording of the rule makes it clear that leave must be granted absent prejudice being shown. Unfortunately, the motion judge’s analysis of prejudice is flawed in a couple of respects. The motion judge treated the loss of the father as litigation guardian as a certainty. It is not. Similarly, there is no certainty, at this point, that there would be any further discovery of the respondent.
[8] Nevertheless, the realization that either, or both, of these events might happen in the future is still fairly considered as part of the prejudice analysis. So is the possibility that the father might feel conflicted, if the third party claim is made, such that he might choose to withdraw as litigation guardian. A new litigation guardian would then have to be found and brought up to speed. The later in the process that such a change takes place creates additional problems, including that the father has likely been privy to privileged conversations regarding trial tactics and strategy, all of which will have to be revisited with the new litigation guardian.
(ii) Delay in Issuing the Third Party Claim
[9] Delay is another factor. Delay that is inordinate and unexplained is presumed to cause prejudice: Family Delicatessen Ltd v. London (City), 2006 CanLII 5135 (Ont. C.A.), at para. 6. No explanation is offered by the appellant for the nine month delay in seeking to issue the third party claim. The appellant says that he is not obliged to offer any explanation, citing Tadiem Inc. v. Allied Properties Management LP, 2018 ONSC 7676, 42 C.P.C. (8th) 414, at para. 53, aff’d 2019 ONSC 2351, 43 C.P.C. (8th) 27 and Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375, at para. 16. I do not agree with that proposition. The presence or absence of an explanation for delay is always a factor to be considered when a party is seeking an extension of time. As I shall explain below, the test for an extension of time is the appropriate test to be applied when considering a motion under r. 29.02(1.2). The failure to offer an explanation weighs against the party seeking the extension of time. It also fails to rebut any presumed prejudice. My conclusion, in this regard, is consistent with authorities such as Bell Canada v. Olympia & York Developments Ltd. (1988), 1988 CanLII 2876 (BC SC), 26 C.P.C. (2d) 113 (Ont. H.C.), aff’d (1988), 30 C.P.C. (2d) 155 (C.A.), where Rosenberg J. said, at para. 24: “Accordingly, I am of the view that the fourth party claim should not be allowed as the reason for the more than two year delay has not been adequately explained.” See also Waterloo County Board of Education v. Mark, Musselman, McIntyre, Coombe et al.; J.T. Donald & Co. Ltd. et al. (Third Parties) (1982), 1982 CanLII 2072 (ON SC), 38 O.R. (2d) 61 (H.C.), at para. 2(c).
[10] As the motion judge recognized, the issue of delay, by itself, is not determinative in this case. By the time of the motion, the delay in bringing third party proceedings was eleven months. That may not be an excessive delay in a case that is only slightly more than two years old, but it is nonetheless problematic given that the appellant had months earlier indicated that he would be advancing such a claim. I also recognize that this is not a case, like some others, where prejudice arises from the fact that the case has been set down for trial or the case has a trial date that would be lost.[1]
[11] Nevertheless, delay is still a matter that factors into the overall consideration of prejudice. Two circumstances make delay of more consequence in this case. One is that this is a claim by a minor. The other is that this is a proceeding under the simplified rules, which are intended to make proceedings move more quickly.
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[23] As I have already said, lack of merit in the proposed step for which leave is sought is a relevant consideration in the prejudice analysis, especially when it is coupled with other ramifications that might arise that would add to that prejudice, as discussed above. Further, the fact that a party will incur additional time and expense in responding to a proposed step, which apparently will not advance the proceeding in any material way, is also a form of prejudice – prejudice that is, at least partly, non-compensable.
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