Ontario Civil

Civil Procedure

Limitations defence was not advancement of new claim

Plaintiff operated private school. It accepted school-related payments from its students by way of credit cards and debit. Defendant PC was retained by plaintiff to provide merchant services for processing and settling of debit and credit transactions. Plaintiff alleged that some $91,000 in American Express transactions were not properly credited to its bank account, due either to fault of Amex Bank or PC, or both. Plaintiff’s action was commenced on July 8, 2010. Only defendant Bank of Montreal advanced limitations defence. Discoveries were conducted in September 2013, and action was set down for trial in February 2014. At pre-trial in October 2014, Amex Bank and PC indicated their intention to amend their pleadings to include limitations defence. Amex Bank and PC moved for leave to amend their respective statements of defence. Motion granted. Limitations defence was not advancement of new claim. Right to advance defence based on passage of time was not claim to remedy injury, loss or damage. It was defence against such claim. There was absence of evidence of actual prejudice. Discoveries had already covered limitations issue and would not need to be continued.

1309489 Ontario Inc. v. BMO Bank of Montreal (Feb. 17, 2015, Ont. S.C.J., C. Boswell J., File No. CV-10-99670-00) 250 A.C.W.S. (3d) 230.

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