Butler v. Nash

Butler v. Nash

Because laches and delay were raised in the respondent's factum, fully argued, and the appellant suffered no prejudice from the late pleading of those defences, and because the record showed the appellant knew of the claim by 1989 but did not commence proceedings until 2002 (approx. 13 years), the motions judge correctly granted summary judgment dismissing the claim on grounds of laches and delay; the appeal is dismissed.

Citation
C40937
Parties
Plaintiff/appellant: Mavis Butler, Angela M. Butler, Chad S. Butler, Thad M. Butler, Fallon E. Butler; Defendant/respondent: Martin Nash
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
18 May 2004
Procedural Posture
Civil / Appeal From Summary Judgment (superior Court of Justice Judgment Dated October 9, 2003)
Outcome
Appeal dismissed; summary judgment of the motions judge upheld.
Legal Topics
Summary Judgment, Laches, Delay, Limitation Period, Abuse (tort)
Source Language
English
Civil Procedure Tort Law Equity Summary Judgment Laches Delay Limitation Period Abuse (tort)

Case Brief

Summary, issues, holding and outcome

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Parties

Mavis Butler, Angela M. Butler, Chad S. Butler, Thad M. Butler, Fallon E. Butler

Plaintiff/appellant

Martin Nash

Defendant/respondent

Procedural Posture

Civil / Appeal From Summary Judgment (superior Court of Justice Judgment Dated October 9, 2003)

Legal Issues

  1. 1 Whether motions judge erred in granting summary judgment on the basis of laches and delay when those defences were not specifically pleaded
  2. 2 Whether the appellant was prejudiced by the respondent raising laches and delay on the summary judgment motion
  3. 3 Whether a 13 year delay between knowledge of the claim and commencement of proceedings warranted dismissal on laches/delay grounds

Ratio Decidendi

Because laches and delay were raised in the respondent's factum, fully argued, and the appellant suffered no prejudice from the late pleading of those defences, and because the record showed the appellant knew of the claim by 1989 but did not commence proceedings until 2002 (approx. 13 years), the motions judge correctly granted summary judgment dismissing the claim on grounds of laches and delay; the appeal is dismissed.

Court Disposition

Appeal dismissed; summary judgment of the motions judge upheld.

Orders

  • Appeal dismissed.
  • Summary judgment granted by the motions judge is upheld, dismissing the action on grounds of laches and delay.