Background
In Maillet v. Deren, 2025 ONCA 159, the Ontario Court of Appeal outlined the legal principles regarding leave to issue a third party claim and affirmed that timeliness is of the utmost importance when seeking to bring a third party claim.
This case involved an action brought by the minor respondent for damages sustained from being bitten by the appellant’s dog on May 21, 2021. The statement of claim was issued on December 15, 2022 and the statement of defence was filed on January 11, 2023.
On February 7, 2023, the appellant advised the respondent that he intended to file a third party claim against the respondent’s mother. However, the third party claim was not brought and examinations for discovery took place on September 20, 2023. On October 18, 2023, the respondent refused to consent to the issuance of the third party claim when asked by counsel for the appellant.
The appellant subsequently brought a motion for leave which was dismissed. The motion judge held that the respondent would suffer prejudice if leave was granted and also found that the third party claim had little to no merit.
Held
Although the court noted “some concerns” with the motion judge’s reasons, the court agreed with the result and dismissed the appeal. The court concluded that the exercise of the motion judge’s discretion was entitled to deference, and the appellant did not demonstrate there was a palpable or overriding error.
Prejudice Under Rule 29.01(1.2)
On the question of prejudice, the motion judge found that granting leave would prejudice the respondent by further delaying the proceeding, forcing the respondent to lose his father as his litigation guardian, and allowing for further “cross-examination of the child” (at para 4).
The Court of Appeal was critical of the motion judge’s findings, stating that the respondent losing his litigation guardian or there being further discovery were not certain. However, the court continued and held that the possibility of these events happening is “still fairly considered as part of the prejudice analysis” (at para 8). The court continued (at para 8):
So is the possibility that the father might feel conflicted, if the third party claim is made, such that he might choose to withdraw as litigation guardian. A new litigation guardian would then have to be found and brought up to speed. The later in the process that such a change takes place, creates additional problems, including the likelihood that the father has been privy to privileged conversations regarding trial tactics and strategy, all of which will have to be revisited with the new litigation guardian.
Delay in Issuing the Third Party Claim
On appeal, the appellant did not provide a reason for the nine-month delay in bringing the third party claim and offered authority to the court that no explanation was needed. The court rejected this argument stating “[d]elay that is inordinate and unexplained is presumed to cause prejudice” (at para 9). The court continued and held that “[t]he presence or absence of an explanation for delay is always a factor to be considered when a party is seeking an extension of time…The failure to offer an explanation weighs against the party seeking the extension of time. It also fails to rebut any presumed prejudice” (at para 9).
Assessing the length of the delay, the court did note that a delay of eleven months in a case two years old may not be an excessive delay. The court also noted that the delay has not caused a trial date to be lost as the case had not been set down for trial. However, the court found it problematic that the appellant had indicated months prior it would be seeking to issue the third party claim and did not do so for another nine months. The court also held that the delay was particularly of consequence as the appellant is a minor and the claim was brought under the simplified rules “which are intended to make proceedings move more quickly” (at para 11).
Merit of the Third Party Claim
The court rejected the appellant’s submission that the proper test for assessing the merits of the proposed third party claim was the test under Rule 21, namely that “the allegations in the pleadings should be taken as being capable of being proved” (at para 13). The court held that in contrast to the test under Rule 21.01 which is often applied at the outset of the proceedings, here there was available evidence about the events in issue which the motion judge was permitted to consider.
The court held that “a preliminary determination can be made whether there is some merit to the proposed claim…the evidence should be viewed generously and without making any findings regarding credibility or reliability” (at para 15). The court continued (at para 16):
In my view, the appropriate test to be applied, in these circumstances, is the test generally used in determining whether an extension of time to take a step in a proceeding should be granted. That test involves, among other things, an assessment of the merits of the proposed step.
Applying the test to the available evidence, the court found no error in the motion judge’s assessment that the appellant’s claim against his mother would not have resulted in a finding of liability against her. The appellant did not provide any evidence on the motion in support of the allegations of the non-supervision and/or negligence of the appellant by his mother.
