



COURT OF APPEAL FOR ONTARIO

CITATION: Prescott & Russell (United Counties) v. David
    S. Laflamme Construction Inc., 2018 ONCA 495

DATE: 20180531

DOCKET: C64429

Doherty and LaForme JJ.A. and Himel J. (
ad
    hoc
)

BETWEEN

The Corporation of the
    United Counties of Prescott &
Russell

Plaintiff
(Respondent)

and

David S. Laflamme Construction Inc. and
    Waterproof
Concrete (Canada) Ltd.

Defendants
(Respondents)

Matthew W. Malcolm and Howard B. Borlack, for the
    appellant (non-party) WSP Canada Inc.

Allan R. OBrien, for the respondent The Corporation of
    the United Counties of Prescott & Russell

Heard: May 24, 2018

On appeal from the
    order of Justice Michelle OBonsawin of the Superior Court of Justice, dated September
    13, 2017.

REASONS FOR DECISION

I.



[1]

The respondent (plaintiff in the action) brought a motion under r.
    5.04(2) for an order adding WSP Canada Inc. (WSP) as a defendant in an
    ongoing action.  That action arose out of alleged negligence in the
    rehabilitation of a bridge.

[2]

The respondents motion turned on whether its claim against WSP was out
    of time under the provisions of the
Limitations Act
, 2002, S.O. 2002,
    c. 24, Sched. B.  Section 21 of the Act provides:

If a limitation period in respect of a claim against a person
    has expired, the claim shall not be pursued by adding the person as a party to
    any existing proceeding.

[3]

On the motion, the respondent contended that its claim against WSP was
    not reasonably discoverable until a date within the two year limitation
    period.  WSP contended that the respondent had ample information upon which to
    base its claim years earlier.  The motion judge accepted the respondents
    position, concluding, at para. 38:

Consequently, I find that the United Counties [respondent] can
    add WSP as a party to the litigation since its actions to do so were within the
    limitation period.

[4]

WSP appeals claiming that the motion judge erred in concluding that the
    claim could not reasonably have been discovered at a point beyond the
    applicable time limit under the Act.  The respondent argues that the motion
    judge was correct in her analysis of the
Limitations Act
provisions. 
    The respondent also raises a preliminary jurisdictional point.  Counsel argues
    that the order under appeal is interlocutory and not final, meaning that any
    appeal lies with leave to the Divisional Court.

[5]

The respondent acknowledges that if the order is not final, the
    respondent cannot claim that the order is binding on the trial judge, meaning
    that WSP can re-litigate the limitation issue at trial.  Counsel has raised the
    issue, however, because in his submission, the jurisprudence from this court
    dictates that the order is interlocutory and cannot be appealed to this court.

[6]

We agree with the respondents submission on the jurisdictional issue.

[7]

The distinction between a final and interlocutory order for the purposes
    of determining the appropriate appellate forum is not always easy to make: see
Salewski
    v. Lalonde
, 2017 ONCA 515;
Azzeh v. Legendre
, 2017 ONCA 385.  In
    the present context, the order will be said to be final if it deprives WSP of a
    substantive defence.  If WSP can no longer rely on the
Limitations Act
defence, the order is final.  However, if WSP can raise the
Limitations Act
defence at trial, the order is not final. To determine whether the order
    is final or interlocutory, one must examine the terms of the order, the motion
    judges reasons for the order, the nature of the proceedings giving rise to the
    order, and other contextual factors that may inform the nature of the order.

[8]

Looking first at the order itself, there is nothing in the language to
    suggest that any final determination was made on the
Limitations Act
issue.  The order, presumably drawn with the cooperation of counsel, makes no
    reference to the
Limitations Act
or any findings made in respect of
    that Act. The order simply allows the respondent to add WSP as a defendant.

[9]

The motion judges reasons contain no language suggesting that any
    finding made in respect of the application of the
Limitations Act
had
    application beyond the motion itself.  The motion judge did not purport to
    decide the issue for any purpose other than the determination of the motion to
    add WSP as a party.

[10]

The
    nature of the motion is also relevant to the nature of the order arising from
    the motion. Some motions tend to generate final orders. For example, orders
    made on r. 21 motions brought to determine a question of law, will generally
    apply to the litigation as a whole. Depending on the question of law decided,
    the order may well be final. Motions to add parties that are successful,
    however, do not as a rule generate findings that are binding in the rest of the
    litigation.

[11]

We
    also cannot accept the contention that because the motion judge was required to
    make a finding as to the application of the
Limitations Act
, her
    finding must be regarded as binding in the litigation and therefore final. 
    Section 21 of the
Limitations Act
forbids adding a party where the
    limitation period has expired. It does not foreclose adding a party absent an
    affirmative finding that the limitation period has not expired.

[12]

Having
    regard to the factors outlined above, we conclude that the trial judges
    determination that the action was brought within the limitation period was made
    for the purposes of the motion only. The motion judge was satisfied that, for
    the purposes of determining whether to add WSP as a party, the limitation
    period had not expired.

[13]

The
    order under appeal is interlocutory.  This court has no jurisdiction to hear
    the appeal.  WSP may, if so advised, seek leave to appeal in the Divisional
    Court, or it may raise the limitations argument at trial.

[14]

We
    make no comments on the merits of the motion judges decision as should the
    matter be raised at trial, the record may well be considerably different than
    was the record before the motion judge.

[15]

The
    appeal is quashed.  Costs of the appeal to the respondent in the amount of
    $12,000, inclusive of disbursements and relevant taxes.  The motion judge has
    not dealt with the question of costs on the motion.  The parties have asked
    that we make no order with respect to the costs of the motion and leave that
    issue to be dealt with by the motion judge. So ordered.

Doherty J.A.

H.S. LaForme J.A.

Himel J. (
ad hoc
)


