Indexed as:

Commisso v. Weingarden Rentals Ltd.

Between

Giuseppe Commisso and Lucia Commisso, plaintiffs

(respondents), and

Weingarden Rentals Limited, defendant (appellant), and

The North Waterloo Farmers Mutual Insurance Company, K.

Drummond Insurance Agencies Limited, Robert J. Reynolds and

Salvatore Falzetta, defendants (respondents)

[1999] O.J. No. 1947

Court File No. C30857

 Ontario Court of Appeal

 Toronto, Ontario

Catzman, Abella and Moldaver JJ.A.

May 21, 1999.

(2 pp.)

Practice -- Pleadings -- Amendment of pleadings -- Statement of defence.

Appeal by the defendant Weingarden Rentals from a decision dismissing its motion to amend the statement of defence. Weingarden's cross-claim had been dismissed by a prior order and that order was not appealed.

HELD: Appeal dismissed. The material facts on which Weingarden relied in seeking the amendments were discoverable much earlier than three years after the dismissal of the cross-claim. The amendments were an attempt to assert a cause of action rather than a mere amendment and the applicable limitation period had long expired.

Counsel:

Raymond G. Colautti, for Weingarden Rentals Limited.

No other counsel mentioned.

The judgment of the Court was delivered by

1 CATZMAN J.A. (endorsement):-- We do not agree that Oullette J. erred in dismissing the appellant's motion when in October 1995, the appellant chose not to oppose the order of Cusinato J. Dismissing its crossclaim against the respondent, all of the material facts on which the appellant now relies were in existence and were discoverable through the exercise of reasonable diligence in the conduct of the action that has been ongoing since November 1991, against this background, Ouellette J. properly characterizes the motion made by the appellant 3 years after the dismissal of its crossclaim and long after the expiration of any applicable limitation period, as an attempt to assert a cause of action rather than a mere amendment of a pleading which has been dismissed by the order of Cusinato J. Accordingly, the appeal is dismissed with costs.

CATZMAN J.A.

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