Gatterbauer v. Ballast Holdings Ltd., (1986) 15 O.A.C. 299 (DC)

• Judge: Sutherland, J.
• Case Date: June 08, 1986
• Jurisdiction: Ontario
• Citations: (1986), 15 O.A.C. 299 (DC)

Gatterbauer v. Ballast Holdings Ltd. (1986), 15 O.A.C. 299 (DC)

MLB headnote and full text

Gatterbauer v. Ballast Holdings Limited and Johnson-Silvercraft Limited

(No. 755/86)

Indexed As: Gatterbauer v. Ballast Holdings Ltd.

Ontario Divisional Court

Sutherland, J.

June 17, 1986.

Summary:

A wife was injured when she fell in a parking lot. She commenced an action in negligence for damages for personal injury against the defendants. Although her husband had a potential claim under the Family Law Reform Act, their solicitor did not inform them of this until after the two year limitation period for adding the husband as a plaintiff in s. 60 of the Act had expired.

The wife applied under s. 2(5) of the Act for an extension of the limitation period. A local judge of the Ontario Supreme Court dismissed the wife's application. The wife appealed.

The Ontario Divisional Court allowed the appeal, granted the extension and ordered that the husband be added as a plaintiff.

Limitation of Actions - Topic 9612

Enlargement of time - Application for - When available - Family Law Reform Act - S. 60 imposed a two year limitation period on the addition of relatives as plaintiffs in actions commenced by injured persons - S. 2(5) permitted the court to extend the limitation period if certain criteria were met - The Ontario Divisional Court granted an extension where the criteria were met, holding that it was not necessary for a would-be plaintiff to establish "special circumstances" for wanting an extension, where the s. 2(5) criteria were otherwise met - See paragraphs 1 to 34 - The court also discussed s. 2(5) extensions, where the reason why the s. 60 limitation period was missed was because a solicitor missed the limitation period - See paragraphs 27 to 34.

Practice - Topic 653

Parties - Adding plaintiffs - Application of limitation periods - Family Law Reform Act - Extension of time - "Special circumstances" - An injured wife applied under s. 2(5) of the Family Law Reform Act to extend the two year limitation period in s. 60 in order to add her husband as a plaintiff - A local judge refused the wife's application on the ground that there were no "special circumstances" justifying the extension - The Ontario Divisional Court held that the local judge erred in imposing a "special circumstances" test which was not required by s. 2(5) of the Act - See paragraphs 1 to 17.

Practice - Topic 653

Parties - Adding plaintiffs - Application of limitation periods - Family Law Reform Act - A husband whose wife was injured, potentially had a claim under the Act - The couple's solicitor did not inform them of the husband's claim until after the expiry of the two year limitation period in s. 60 of the Act - The wife applied under s. 2(5) for an extension of the limitation period - The Ontario Divisional Court granted the extension and added the husband as a plaintiff, where there was no prejudice to the defendants and no lack of good faith on the part of the plaintiff or her solicitors - See paragraphs 18 to 34.

Practice - Topic 653

Parties - Adding plaintiffs - Application of limitation periods - Family Law Reform Act - Where solicitor misses limitation period - A husband, whose wife was injured, had a potential claim under the Act - Their solicitor failed to inform them of the husband's claim, until after the expiry of the two year limitation period in s. 60 of the Act - The wife applied for an extension of the limitation period to add the husband as a plaintiff under s. 2(5) of the Act - The Ontario Divisional Court discussed the effect of the solicitor's missing the limitation period on the wife's s. 2(5) application for an extension - See paragraphs 27 to 34.

Cases Noticed:

Deaville v. Boegeman (1984), 6 O.A.C. 297; 48 O.R.(2d) 725, consd. [para. 4].

Moffett v. Farnsworth (1984), 6 O.A.C. 241; 47 O.R.(2d) 620 (Div. Ct.), refd to. [para. 12].

City of Ottawa v. Town of Eastview, [1941] S.C.R. 448, refd to. [para. 12].

Lucas et al. v. Cernigoj et al. (1985), 2 C.P.C.(2d) 294, refd to. [para. 15].

Woolford v. Lockhart et al. (1985), 2 C.P.C.(2d) 16, refd to. [para. 15].

Sandulo v. Robinson (1975), 10 O.R.(2d) 778, not appld. [para. 17].

Fagan v. Emery Investments Limited (1985), 2 W.D.C.P. 81, refd to. [para. 29].

Statutes Noticed:

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 2(5), sect. 60.

Authors and Works Noticed:

Craies on Statute Law (7th Ed.), pp. 574-576 [para. 12].

Dreidger, The Construction of Statutes, pp. 174-176 [para. 12].

Counsel:

Paul R. Jewell, Q.C., for the appellant;

Carolyn J. Horkins, for the respondent Ballast Holdings Limited.

This appeal was heard on June 8, 1986, before Sutherland, J., of the Ontario Divisional Court, whose decision was released on June 17, 1986.