Butera v. Mitsubishi Motors Corporation
The motion was allowed and paragraph 1 of the notice of appeal was struck because the appellants had conceded a two-year limitation period and discovered their claims in 2006; permitting them to raise for the first time on appeal that the six-year transition provision applies would prejudice the moving party and be...
Source-derived case information.
- Citation
- 2013 ONCA 125
- Parties
- Appellant: Luciano Butera; Appellant: 1515404 Ontario Inc. operating as Niagara Mitsubishi; Appellant: Canterra Property Holdings Inc.; Respondent: Mitsubishi Motors Corporation; Respondent: Mitsubishi Motor Sales of America, Inc.; Respondent: Mitsubishi Motors North America, Incl.; Respondent: Mitsubishi Motors Credit America, Inc.; Respondent: Mitsubishi Motor Sales of Canada, Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 26 February 2013
- Procedural Posture
- Civil / Appeal (motion to Strike Paragraph of Notice of Appeal)
- Outcome
- Motion allowed; paragraph 1 of the notice of appeal struck; costs awarded to moving party.
- Legal Topics
- Limitation Periods, Limitation Act, 2002 Transition Provisions, Raising New Grounds on Appeal, Prejudice and Fairness, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luciano Butera
Appellant
1515404 Ontario Inc. operating as Niagara Mitsubishi
Appellant
Canterra Property Holdings Inc.
Appellant
Mitsubishi Motors Corporation
Respondent
Mitsubishi Motor Sales of America, Inc.
Respondent
Mitsubishi Motors North America, Incl.
Respondent
Mitsubishi Motors Credit America, Inc.
Respondent
Mitsubishi Motor Sales of Canada, Inc.
Respondent
Procedural Posture
Civil / Appeal (motion to Strike Paragraph of Notice of Appeal)
Legal Issues
- 1 Whether appellants may raise for the first time on appeal that the six-year limitation period under the Limitation Act, 2002 transition provisions applies
- 2 Whether permitting the new ground of appeal would cause prejudice and be manifestly unfair to the moving party
- 3 Whether paragraph 1 of the notice of appeal should be struck
Ratio Decidendi
The motion was allowed and paragraph 1 of the notice of appeal was struck because the appellants had conceded a two-year limitation period and discovered their claims in 2006; permitting them to raise for the first time on appeal that the six-year transition provision applies would prejudice the moving party and be manifestly unfair since the respondents were deprived of the opportunity to develop an evidentiary record in the court below.
Court Disposition
Motion allowed; paragraph 1 of the notice of appeal struck; costs awarded to moving party.
Orders
- Paragraph 1 of the notice of appeal struck.
- Costs to the moving party fixed at $20,000 all inclusive as agreed.
Full Case Text
Judgment text and source record
1 paragraphs
Butera v. Mitsubishi Motors Corporation Collection Decisions of the Court of Appeal Date 2013-02-26 Neutral citation 2013 ONCA 125 Docket numbers C56077, M42067 Judges Blair, Robert Ashley; MacFarland, Jean Louise; Rouleau, Paul S. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Butera v. Mitsubishi Motors Corporation, 2013 ONCA 125 DATE: 20130226 DOCKET: M42067 C56077 Blair, MacFarland and Rouleau JJ.A. BETWEEN Luciano Butera, 1515404 Ontario Inc. operating as Niagara Mitsubishi and Canterra Property Holdings Inc. Plaintiffs (Appellants) and Mitsubishi Motors Corporation, Mitsubishi Motor Sales of America, Inc., Mitsubishi Motors North America, Incl., Mitsubishi Motors Credit America, Inc., and Mitsubishi Motor Sales of Canada, Inc. Defendants (Respondents) David Stearns, Harry Korosis and Peter Nicholson, for the appellants Brad Hanna and R. McCluskey, for the respondents Heard and released orally: February 13, 2013 ENDORSEMENT [1] The motion is allowed and an order is granted striking paragraph 1 of the notice of appeal. [2] The appellant Butera gave sworn evidence that he discovered his claims against the moving parties in 2006. He also conceded that the two-year limitation period under the Limitation Act of 2002, applied. [3] The motion proceeded before Hambly J. on that basis and was decided on that basis. Only now on the appeal from the decision of Hambly J. is it argued that the six-year limitation period under the transition provisions of the 2002 Act apply. [4] In our view, to permit the appellants to raise this new ground of appeal at this time causes prejudice to the moving party. Had the appellants raised this argument in the court below, the moving party would have had the opportunity to develop an evidentiary record to demonstrate that the deemed discovery and transition provisions of the 2002 Limitation Act do not apply in the manner now argued by the appellants. Further, in our view, it would be manifestly unfair to permit the appellants to advance this new argument at this time. [5] Costs to the moving party fixed at $20,000 all inclusive as agreed. “R.A. Blair J.A.” “J. MacFarland J.A.” “Paul Rouleau J.A.”