Part 6 published on 01/05/04
Court refuses to add party to leaky Condo Case
To secure an order adding a party to a court action, the plaintiff must demonstrate the following:
(a) There is a degree of connection between the parties that relates to either the relief claimed or the subject-matter of the proceeding; and
(b) It is just and convenient that the party be added.
In cases were there is an “accrued limitation defence”, the court must ask itself the following question: Would it nonetheless be just and convenient to add the party, even though by doing so the limitation defence is taken away?
In this case, the court found that “the issue of whether the applicable limitation period has expired is at best uncertain”. The Court was not able to determine the question on the available evidence. Therefore, the Court found that there was a potential limitation defence. The Court then found that it would not be just and convenient to add the proposed further defendant because there had been a significant, unexplained delay on the part of the plaintiff in bringing the application to add the party. Therefore, adding the proposed defendant would result in significant prejudice to that party.