1.4: Procedural orders
3.44: When third party claim may be filed
3.45: Form of third party claim
6.11: Evidence at application hearings
13.5: Variation of time periods

Case Summary

The Appellant condo corporation appealed a Master’s Decision which denied the extension of time to file the Appellant’s Third Party Claim. Shelley J. noted that Rules 1.4(2)(h) and 13.5 provided the basis upon which the Court could extend time periods, and Rules 3.44 and 3.55 provide the requirements for filing a Third Party Claim. In an Application to take a further step in an Action, the Court must consider whether: there was inordinate delay; the inordinate delay is inexcusable; and the defendants are likely to be seriously prejudiced by the delay.

The Appellant cited Rule 6.11 in support of their argument that the Court should not consider the merits of the Third Party Claim unless there is evidence of an inexcusable delay and serious prejudice, which it argued did not exist in this case. The Respondent, the proposed Third Party, argued that there was inordinate delay in bringing the Third Party Claim, and that significant prejudice would occur for him and the Plaintiff if the Appellant was able to bring in a new party. The Action had advanced relatively swiftly and Questioning was almost complete. The Respondent also argued that there was no air of reality to the proposed Third Party Claim.

Justice Shelley held that there had been an inordinate delay with no reasonable excuse, particularly because the Appellant had been aware of the facts underlying the Third Party Claim for some time. Shelly J. did not agree with the Appellant’s argument that the merits of the Third Party Claim should not be considered, since an extension to issue a Third Party Claim should not be granted unless there is an air of reality to the Third Party Claim. The Appellant had failed to provide sufficient evidence to meet the air of reality test. The Appeal was therefore dismissed.

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