CIVIL PROCEDURE - Parties - Adding or substituting - After expiry of limitation period

Law360 Canada (June 24, 2022, 5:25 AM EDT) -- Application by the plaintiff to add the Kingston Taphouse (Kingston) as a defendant and to amend the notice of civil claim. Kingston was already a third party to the action. It opposed being added as a defendant due to the plaintiff’s unexplained delay. The plaintiff sued several companies and individuals who allegedly served him excessive amounts of alcohol in 2016. The plaintiff claimed he fell and suffered a head injury while severely intoxicated after leaving the premises of the defendant Roxy Cabaret (Roxy). He had been to several bars that night. The present action was commenced in 2018. Plaintiff’s counsel made a deliberate decision at the time to only name Roxy and certain of its employees as defendants. In its defence, Roxy claimed the other establishments not yet named in the action, including Kingston, the Studio and Relish, were liable for the plaintiff’s injuries. In 2019, Roxy added Relish as a third party. Relish filed a third party notice against Kingston. Because of these third party proceedings, the plaintiff decided to add Kingston as a defendant. The plaintiff’s application was originally served on Kingston’s counsel in October 2020, 14 months after expiry of the two-year limitation period. Plaintiff’s counsel wrote to Kingston’s counsel to advise of their intention to apply to add Kingston nine months after expiry of the limitation period. The plaintiff argued that the procedural and legal dynamic of the action changed because of the third party proceedings that were added which helped to focus plaintiff’s counsel on the possibility and risk that some liability could potentially be allocated to other establishments the plaintiff attended on the evening in question....
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