Executive Summary: Key Legal and Evidentiary Issues

• Whether the motion judge breached procedural fairness by granting relief under Rule 3.02 when the motion was argued solely under Rule 59.06.
• Extent to which parties must have clear notice of the legal basis (including specific rules) on which a motion may be decided so they can marshal relevant evidence, particularly regarding prejudice.
• Impact of the absence of a draft amended statement of claim on the appellants’ ability to demonstrate prejudice from delay in seeking to amend.
• Limits on a court’s discretion to correct or reframe a self-represented party’s procedural route where doing so creates surprise or unfairness to the opposing party.
• Proper application of the test for extensions of time under Rule 3.02, with emphasis on prejudice, versus the distinct test and grounds required under Rule 59.06 to set aside or vary an order.
• Appropriate appellate remedy where a motion judge has relied on an unpleaded rule: remitting the motion to a different judge with directions on required evidence and materials.

Background and facts of the dispute

Mr. Sylvester Dennis is a long-time member of the Laborers’ International Union of North America (LIUNA). Over many years he contributed union dues to two different LIUNA locals. He does not object to having paid fees twice; his complaint arises from how his dual memberships were treated over time. In 1992, LIUNA sent Mr. Dennis a letter confirming that he was allowed to continue holding memberships in both local unions. Decades later, in 2019, LIUNA wrote to him again, this time stating he could not continue to be a member of both locals. Mr. Dennis claims this reversal was wrongful and damaging. In his statement of claim, he seeks a declaration that he validly holds memberships in both locals and claims $75,000 in damages for what he characterizes as “harassment, discrimination and emotional abuse.” The underlying merits of those allegations, however, were not determined in this decision; the Divisional Court dealt only with a procedural fairness issue arising from motions practice in the action.

Procedural history in the Superior Court

The litigation moved slowly after the claim was issued in November 2019. Defence counsel promptly warned Mr. Dennis that the defendants were improperly named, since trade unions cannot be sued in their own names under Ontario law, and no properly amended statement of claim was forthcoming. Mr. Dennis also took no steps to advance the action procedurally. Faced with this inaction, the appellants (LIUNA and LIUNA Local 183) scheduled a motion to strike the claim, which was heard on June 17, 2021. Mr. Dennis did not attend. The motion judge, Trimble J., recorded a “recurring theme” that Mr. Dennis was out of the country, unwilling or unable to appear virtually, and insistent on an in-person hearing. The motion judge concluded the claim had been properly served, struck it on two bases—first, that the named union defendants lacked legal capacity to be sued and, second, that the pleading did not properly set out a cause of action and supporting facts—and granted Mr. Dennis 30 days to deliver an amended statement of claim. That 30-day window expired without an amended pleading being filed.

The motion to set aside or vary and the request for more time

More than three years later, on December 5, 2024, Mr. Dennis brought a motion concerning the June 17, 2021 order. He sought primarily to set aside or vary that order, arguing that he had not been properly served and that he was out of the country when the motion to strike was heard. He also asked the court to impose a timetable to move the action forward, including the filing of a defence, discoveries, a pre-trial conference and the setting down of the action for trial. In the alternative, he asked for an extension of time to serve an amended statement of claim. Notably, he did not include any draft amended statement of claim in his motion materials. Equally important was the procedural route he chose: his motion materials relied only on Rule 59.06 of the Rules of Civil Procedure, the rule governing motions to set aside or vary an order on grounds such as error, fraud, new facts, or other specific bases. The evidentiary record and legal argument he advanced focused exclusively on that rule. The appellants responded in kind. They filed two affidavits describing the communications history between the parties and argued in their factum that the Rule 59.06 test was not met, particularly because there was no evidence of fraud or of new relevant facts discovered after the June 2021 order. Prejudice resulting from delay, and the test for extensions of time, were not squarely addressed because, as the appellants saw it, that was not the motion Mr. Dennis had brought.

The motion judge’s reliance on Rule 3.02

The motion was heard on March 13, 2025 by the same judge, Trimble J. During oral argument, counsel for Mr. Dennis continued to rely only on Rule 59.06. The appellants resisted on that basis, maintaining that the stringent standard to reopen or vary an order had not been satisfied. It was the motion judge—not either party—who raised the possibility of granting relief under Rule 3.02(1), a general procedural rule that allows the court to extend any time prescribed by an order. The judge queried the appellants’ counsel about prejudice arising from the delay. Counsel answered candidly that he had filed no evidence of prejudice because, under Rule 59.06, prejudice from delay was not one of the central issues, and, in any event, it was difficult to assess prejudice without seeing a draft amended statement of claim explaining how Mr. Dennis proposed to re-frame or correct his pleading. Despite that, the motion judge ultimately disposed of the motion exclusively under Rule 3.02(1). He applied the usual “extension of time” approach, emphasizing that matters should preferentially be decided on their merits and that the key consideration was whether the respondents could demonstrate prejudice to their ability to defend the claim. Concluding that the appellants had not shown such prejudice, he extended the time for Mr. Dennis to file an amended statement of claim by 30 days and effectively revived the litigation, notwithstanding the expiry of the original amendment period.

The Divisional Court’s analysis of procedural fairness

The appeal to the Divisional Court focused on a single issue: whether it was procedurally fair for the motion judge to grant relief under Rule 3.02 when Mr. Dennis’s motion was framed and argued under Rule 59.06, and when the appellants had tailored their evidence and submissions accordingly. The court began by reaffirming an important principle of civil procedure: motions and actions must generally be decided within the boundaries framed by the parties’ pleadings and motion materials. Parties are entitled to know the case they have to meet so they can adduce relevant evidence and make targeted legal submissions. Deciding a matter on a basis “never pleaded or raised” can amount to a denial of procedural fairness. At the same time, the court acknowledged that judges are not completely bound by the specific rule cited by a party, especially self-represented litigants who frequently mislabel procedural routes. There is room for flexibility where the legal label is wrong but the substance is clear and no party is surprised or prejudiced. Rule 1.04, which calls for just, expeditious and inexpensive determinations, supports courts in applying the correct procedural rule where doing so is fair to all sides. The problem in this case, the Divisional Court emphasized, was not simply that a different rule was applied. It was that the appellants were deprived of a meaningful opportunity to meet the real basis on which the motion was decided—an extension of time under Rule 3.02, in which “prejudice” from delay is a key factor. Mr. Dennis had not cited Rule 3.02 in his materials, had not articulated the legal test for an extension of time, and had not provided a draft amended statement of claim. Against that backdrop, the appellants had no reason to anticipate they would need to marshal and file evidence of specific prejudice caused by the long delay and by the proposed amended pleading. When the judge raised Rule 3.02 for the first time at the hearing itself, it was too late for the appellants to gather and file the very evidence—concrete prejudice—that the judge then treated as central. As the Divisional Court put it, the appellants simply did not have advance notice that they would be required to address prejudice as a decisive issue. That, the court held, was unfair. The consequence was a breach of procedural fairness: the appellants had been denied a fair opportunity to meet the true case on which the motion was decided.

Remedy, outcome, and costs

Having found a breach of procedural fairness, the Divisional Court allowed the appeal. Rather than finally determining the extension-of-time issue itself, the court remitted the motion to a different motion judge for a fresh determination. It directed that, on the rehearing, Mr. Dennis must include a draft amended statement of claim in his motion record so that the appellants and the court can properly assess the nature and scope of his proposed pleading. The appellants, in turn, are permitted to file evidence addressing any prejudice they say has been caused by the passage of time and by the proposed amendments. On the question of costs, the Divisional Court noted that the appellants were entitled to $2,500 in costs previously fixed on the motion for leave to appeal and, as agreed by the parties, $5,000 in costs for the appeal itself. Taken together, the successful party in this decision is the appellants, LIUNA and LIUNA Local 183, and the total monetary amount ordered in their favour is $7,500 in costs payable by Mr. Dennis.