Girsberger v. Kresz

Girsberger v. Kresz

The amendment to plead s.121(1) only adjusted the currency conversion to reflect the original Illinois award and did not change the substance of the claim or create a new cause of action; because the defendant failed to raise the limitation defence at the summary judgment hearing and offered no satisfactory explanation for that failure, he cannot now rely on that defence to reopen a final, unappealed summary judgment; the motions judge did not err in dismissing the motion to set aside and allowing the amendment.

Citation
C33770
Parties
Plaintiff/respondent: Loren Girsberger; Defendant/appellant: John Kresz
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
10 November 2000
Procedural Posture
Civil / Appeal to Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Enforcement of Foreign Judgment, Summary Judgment, Amendment of Statement of Claim, Limitation Defence, Currency Conversion for Foreign Judgments, Registration of Judgment
Source Language
English
Civil Procedure Conflict of Laws Enforcement of Foreign Judgments Enforcement of Foreign Judgment Summary Judgment Amendment of Statement of Claim Limitation Defence +2 more

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Parties

Loren Girsberger

Plaintiff/respondent

John Kresz

Defendant/appellant

Procedural Posture

Civil / Appeal to Court of Appeal

Legal Issues

  1. 1 Whether amending the statement of claim to plead s.121(1) of the Courts of Justice Act permits the defendant to raise a limitation defence to a final, unappealed summary judgment
  2. 2 Whether the amendment introduced a new cause of action or conferred new rights on the defendant
  3. 3 Whether the motions judge abused his discretion in allowing the amendment and dismissing the motion to set aside the judgment

Ratio Decidendi

The amendment to plead s.121(1) only adjusted the currency conversion to reflect the original Illinois award and did not change the substance of the claim or create a new cause of action; because the defendant failed to raise the limitation defence at the summary judgment hearing and offered no satisfactory explanation for that failure, he cannot now rely on that defence to reopen a final, unappealed summary judgment; the motions judge did not err in dismissing the motion to set aside and allowing the amendment.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Order dismissing the motion to set aside the May 29, 1998 judgment is affirmed.