



COURT OF APPEAL FOR ONTARIO

CITATION: Castronovo v. Sunnybrook & Women's College
    Health Sciences Centre, 2017 ONCA 212

DATE: 20170313

DOCKET: C62791

Hoy A.C.J.O., Gillese and Brown JJ.A.

BETWEEN

Calogero Castronovo, Liverata Castronovo and
    Pasquale Castronovo

Plaintiffs (Respondents)

and

Sunnybrook & Womens College Health Sciences
    Centre, Ms. L. Chow, Jane Doe and/or John Doe,
Venus
    Chiodo a.k.a. Venus Cariati o/a Mutual Aid Legal Services and Mikhail Krylov
    a.k.a. Michael Krylov

Defendants (
Appellants
)

William G. Scott, for the appellants

Brian Pickard and Earl Murtha, for the respondents

Heard:  March 7, 2017

On appeal from the order of Justice F.L. Myers of the Superior
    Court of Justice, dated October 6, 2016.

ENDORSEMENT

[1]

In a June 9, 2016 order, Archibald J. directed
    that, if advised, the appellants were to serve and file a motion to amend their
    defence to advance a limitation period defence by June 17, 2016. He maintained
    the October 17, 2016 trial date, pending amendments.  All counsel signed the
    order.

[2]

The appellants served their notice of motion,
    seeking leave to amend their statement of defence to plead a limitations
    defence, on August 17, 2016.  Myers J. heard their motion on October 6, 2016.
    The appellants asserted that the respondents should have discovered their claim
    against them in 2007 and the claim was accordingly statute-barred.

[3]

Myers J. dismissed their motion. The crux of his
    reasoning was that the appellants had failed to show why it was in the
    interests of justice to grant the requested extension of time under r. 3.02 of
    the
Rules of Civil Procedure
.  He held that Archibald J.s order was a consent order and found
    the appellants had not explained why they waited seven years from being added
    as parties or two months after the deadline prescribed in the consent order to
    file and serve their motion.  He noted that Archibald J.s order specifically
    contemplated counsels need for instructions.  Moreover, it was common ground
    that the trial date would be lost if leave to amend were granted.  Delay
    matters, he wrote.  And if the appellants advanced a limitations defence, the
    respondents counsel would be a key witness and the respondents would need to
    find new counsel in a 13-year old case.  He concluded there is no amount of
    money that can compensate the [respondents] if they are sent back to the
    drawing board needing to find new counsel at this late date.

[4]

The appellants concede Myers J. articulated the correct
    test (whether it was in the interests of justice) to be applied in determining
    whether an extension of time should be granted under r. 3.02, and that an order
    under r. 3.02 is discretionary. But they argue Myers J. erred (i) in concluding
    Archibald J.s order was a consent order; (ii) in concluding the appellants had
    not adequately explained the delay; and (iii) by considering prejudice other
    than prejudice arising from their two-month delay in complying with Archibald
    J.s order.

[5]

We reject these arguments.  In our view, Myers
    J. did not err in concluding that the appellants had failed to show that it was
    in the interests of justice to grant the requested extension.  The
    uncontradicted evidence before Myers J. was that all counsel had agreed to the
    timeline ordered by Archibald J.  The fact that the parties had consented to
    the order, the very late stage in this long-outstanding litigation at which the
    appellants raised the possibility of amending their defence, and the impact on
    the litigation  what Myers J. characterized as prejudice  if the appellant
    brought the motion to amend, all required that the appellants provide a
    compelling explanation for their non-compliance with the consent order.  Myers
    J.s conclusion that the appellants had failed to satisfactorily explain their
    non-compliance is supported by the record.  There is no basis to interfere with
    the order of Myers J. dismissing the appellants motion.

[6]

The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Eileen E. Gillese
    J.A.

D.M. Brown J.A.


