What is the test for an application to amend the limitation period in a sexual assault case?

The expiration of a limitation period gives rise to a presumption of prejudice. When an amendment is sought after the expiration of a limitation period, the party seeking the amendment must lead some evidence to explain the delay and rebut the presumption. The prejudice referred to under Rule 26.01 is prejudice to a party’s rights in prosecuting the action. Where there is an issue of fact or credibility relating to the discoverability of the proposed claim, the matter will usually be left to the trial judge to determine. (Sarokin v. Zhang, 2020 ONSC 1839, at para. 18 (citations omitted.)) If the plaintiff provides a reasonable explanation on proper evidence as to why the essential facts were not known or obtainable with due diligence such that the court determines there is a triable issue of fact or credibility on the discoverability allegations, the court will normally permit the amendment with leave to plead a limitations defence (Sarokin, at para. 24.)