Macksoud (Litigation Guardian of) v. Carroll; Limitations Act, 2002; Limitations Act, 2002

2011 ONCA 108 (CanLII); Lerners acted for the respondents in this appeal of a motion judge’s decision barring the plaintiffs from adding a number of additional defendants to the action based on a limitations defence. The litigation commenced in 2002. The issue of liability of the additional defendants only came to light in 2009, when plaintiffs’ counsel obtained an expert report which suggested liability of the proposed defendants. The question on appeal was whether the current limitation period under the Limitations Act, 2002, or a longer predecessor limitation period, applied to this case. The Ontario Court of Appeal held that since the claims were properly “discoverable” prior to the enactment of the Limitations Act, 2002, it was the former longer limitation period that applied, meaning that the new claims were not statute barred. The appeal was allowed.