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
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,  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.
– 2 –
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.