Amendment to statement of defence refused

In this case, Paul Gemmink had previously been successful on a motion for partial summary judgment in a failed real estate transaction.  The judge hear the motion at that time had ruled that the purchaser had no proper defences and therefore allowed the seller to get the release of the deposit immediately.  The seller was then going to be able to go to trial for her additional damages once the property was sold.

When the seller was ready to go to trial, the purchaser had hired a new lawyer.  The new lawyer wanted to raise new potential defences that had not been raised by the previous lawyer.  The purchaser therefore brought a motion to amend the statement of defence so that he could argue that he he should be able to get the deposit back and that the seller was not entitled to any damages.

The court master hearing the motion agreed with the arguments presented by Heather Catania, that the purchaser was too late to raise the new defences.  To use the legal term, the issue of liability was res judicata.  Any possible defences should have been raised at the time that the motion for summary judgment was heard.  Therefore, the only issue left to argue was what damages the seller was entitled to.  2019 ONSC 4122

The purchaser appealed this decision to the Divisional Court.  The judge hearing the appeal agreed with the lower court decision and dismissed the appeal.