Hanlan v. Sernesky, [1996] 95 O.A.C. 297 (C.A.) Dossier No. C24999

  • Document:
  • Date: 2018

Court File No. C24999

COURT OF APPEAL FOR ONTARIO

 

RE:   RAYMOND            TED           HANLAN,    ERNEST  HANLAN, ROSE HANLAN,  RANDY  HANLAN,  RON  HANLAN  and     RUBY
LYNN POULIN (Plaintiffs / Respondents) and JOHN EDWARD SERNESKY (Defendant / Appellant)

BEFORE:               HOULDEN, McKINLAY and LASKIN JJ.A.

COUNSEL:             Timothy E.G. Fellowes, Q.C. and Jennifer Ip

for the appellant

Bert Agostino

for the respondents

HEARD:       November 15, 1996 ENDORSEMENT

 

The motions judge refused an amendment to the statement of defence to plead the law of Minnesota which, as a result of the decision of the Supreme Court of Canada in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, might apply to the case, rather than the law of Ontario, where the parties reside. The motions judge based his decision on what he considered to be prejudice to the plaintiffs resulting from the application of Minnesota law.

With respect, we see no prejudice resulting from the amendment. The only prejudice is that which would be inevitable as a result of any successful plea. Such prejudice is not the type referred to in Rule 26. If it were, only unmeritorious amendments would be allowed — an obviously ludicrous proposition.

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The appeal is allowed, the decision of Kozak J. is set aside and leave is granted to amend the statement of defence to plead Minnesota law. Costs below to the plaintiffs, in any event and costs to the defendant on the appeal, in any event.