McRitchie-Tenenbaum et al. v. Dyck, (1996) 5 O.T.C. 388 (GD)

• Judge: Kennedy, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 05, 1996
• Jurisdiction: Ontario
• Citations: (1996), 5 O.T.C. 388 (GD)

McRitchie-Tenenbaum v. Dyck (1996), 5 O.T.C. 388 (GD)

MLB headnote and full text

Samantha McRitchie-Tenenbaum, Joshua McRitchie, by their Litigation Guardian, Charlene McRitchie, and Charlene McRitchie, personally (plaintiffs) v. Frank Dyck and Daniel Dyck (defendants)

(File No. 95-GD-20863)

Indexed As: McRitchie-Tenenbaum et al. v. Dyck

Ontario Court of Justice

General Division

Kennedy, J.

June 5, 1996.

Summary:

An action was brought arising from a fatality as a result of a motor vehicle accident which occurred on August 21, 1993. An application was brought to amend the statement of claim by adding derivative claimants as party plaintiffs pursuant to the Family Law Act. The proposed claimants were the mother and two sisters of the deceased. Previous counsel had missed the two year limitation period under the Highway Traffic Act.

The Ontario Court (General Division) allowed the application where the defendant insurer had full knowledge of the proposed claimants' intention to proceed from an early date and the defendants had not been prejudiced in any way by the lapsed limitation period.

Practice - Topic 716

Parties - Adding or substituting parties - Notwithstanding limitation period - Prejudice or actual prejudice to defendant - See paragraphs 1 to 17.

Cases Noticed:

Deaville v. Boegeman (1984), 6 O.A.C. 297; 44 C.P.C. 285 (C.A.), refd to. [para. 10].

Cojocaru v. Stutsky (1991), 9 O.R.(3d) 406 (Gen. Div.), refd to. [para. 11].

Gatterbauer v. Ballast Holdings Ltd. (1986), 15 O.A.C. 299; 9 C.P.C.(2d) 273 (Div. Ct.), refd to. [para. 16].

Counsel:

James R. Adams, agent for Robert Barnes, solicitor for the plaintiffs;

James K. Brown, for the defendants.

This application was heard by Kennedy, J., of the Ontario Court (General Division), who delivered the following decision on June 5, 1996.