Author: Dan

Ontario: s. 5(1)(a)(iv) and doctor-patient relationships

The decision in Kram v. Oestreicher is an example of a circumstance where a proceeding did not become an appropriate remedy while a doctor was attempting to remedy his error:

[125]      In my view, the circumstances here are analogous to those before the Court of Appeal in both Presidential MSH Corporation and Brown v. Baum. Assuming that I had concluded that Oestreicher was civilly liable for the manner in which the June 15, 2009 surgery was carried out, he was engaged in good faith efforts to remedy any damage caused for at least the next 14 months. This was reflected in the three subsequent surgeries he performed, the last of which occurred on August 17, 2010. Moreover, it is clear that Kram was relying on Oestreicher’s superior knowledge and expertise throughout this time period.

[126]      In my view, it would have been premature, and therefore inappropriate, for Kram to have commenced a legal action while Oestreicher’s good-faith efforts to remedy any negative effects from the June 15, 2009 surgery were ongoing. I conclude that the two-year limitation period in respect of her claims began to run, at the earliest, on August 17, 2010. She commenced this proceeding within two years of that date. Accordingly, Kram’s claims are not barred by the operation of the Act.

 

Ontario: the impact of partial payment on the limitation of debt claims

Hamilton and Son Roofing Inc. v. Markham (City) provides an example of a partial payment operating to restart the limitation period for a debt:

[51]           In any event, the Notice of Action was not issued until June 14, 2016, more than two years after the June 10, 2014 email was received.

[52]           The final issue is whether the payment of the deficiency holdback on May 6, 2015, was an acknowledgment of the debt through part payment under the contract, within the meaning of s. 13(11) of the Act.

[53]           The effect of s. 13(11) of the Act was summarized by Perell J. in Montcap Financial Corporation v. Schyven, 2011 ONSC 4030 (CanLII), at para. 26:

With each payment, a debtor acknowledges or re-acknowledges his or her liability; partial payment acts as an acknowledgment that will restart the running of the two-year limitation period: ABC Lumber Ltd. v. Bodrenok, 2010 ONSC 769 (CanLII), 2010 ONSC 769 (S.C.J.) at para. 39; Emmott v. Edmonds 2010 ONSC 4185 (CanLII), 2010 ONSC 4185 (S.C.J.); Bank of Nova Scotia v. Christie, 2008 CanLII 37609 (ON SC), [2008] O.J. No. 2971 (S.C.J.) at paras. 58-59; Montreal Trust Co. of Canada v. Vanness Estate, [2005] O.J. No. 594 (C.|A.) at para. 2; Markham School for Human Development v. Ghods (2002), 2002 CanLII 62432 (ON SCDC), 60 O.R. (3d) 624 (Div. Ct.).

[54]           In my view, Markham’s payment of the deficiency holdback on May 6, 2015, was a part payment under s. 13(11) of the Act and had the effect of restarting the limitation period.

[55]           The three invoices delivered by Hamilton Roofing on April 7, 2014 all related to the same contract: Markham Purchase Order # PD13334. These invoices represented the total contract price of $151,035.80. Markham held back part of the purchase price – $9,000 plus HST – for deficiencies. When Markham paid this amount on May 6, 2015, it was not making a payment that was unrelated to the invoice at issue; it was making a “part payment” of the amount originally claimed by Hamilton Roofing. This was not the payment of a different or additional contract. It related to the original contract and invoices, even though payment was made in response to a new invoice for the deficiency hold back amount.

[56]           As this part payment occurred within two years of May 28, 2014, it had “the same effect as the acknowledgment” in s. 13(1) of the Act, and restarted the running of the two year limitation period as of May 6, 2015. Since the Notice of Action was issued on June 14, 2016, and the Statement of Claim issued on July 13, 2016, the action is not time barred.

Ontario: the timing of amendments to plead discoverability

Marvelous Mario’s Inc. et al. v. St. Paul Fire And Marine Insurance Co.  provides authority for the principle that an amendment to plead discoverability is available at any time:

[52]           The plaintiffs’ pleading is silent as to discoverability. Recognizing the gap in their pleading, the plaintiffs have moved for an order allowing them to amend their pleading to plead discoverability. St. Paul takes no position on the motion. Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194allows for an amendment to be made at any time, even after the conclusion of trial: Hardy v. Herr, 1965 CanLII 225 (ON CA), [1965] 2 O.R. 801 (Ont. C.A.), at para. 2. Discoverability was an issue thoroughly canvassed at trial. I see no prejudice to St. Paul in granting the amendment. Accordingly, the plaintiffs’ motion to amend their statement of claim to plead discoverability is granted.

All of that said, it’s worth noting that the facts setting up a discovery argument are properly pleaded in reply.

Ontario: Court of Appeal reminds us that arbitration doesn’t suspend the limitation period

 

In Gravelle (CodePro Manufacturing) v. Denis Grigoras Law Office, the Court of Appeal held that a party who writes a letter with the subject line “Notice of Pending Legal Malpractice Action”, and advises that “a statement of claim is currently being drafted against yourself […] such as to avoid the expiration of the applicable statute of limitation periods”, has discovered his claim.

If the party subsequently pursues arbitration in lieu of an action, that will not have the effect of suspending the commencement of the limitation period:

[6]         This is not a case in which the appellant was pursuing alternative means of resolving his negligence allegations against his former solicitors, the respondents. The appellant decided for tactical reasons not to bring his action against the respondents until the arbitration proceedings were completed. He was entitled to make this choice, but he must live with the consequences of it. The motion judge made no error in concluding that the appellant discovered his claim by November 23, 2009. The fact that a notice of possible claim has been delivered “may be considered by a court in determining when the limitation period in respect of the person’s claim began to run”: Limitations Act, 2002, s. 14(3).

This is a useful s. 5(1)(a)(iv) decision because it provides an example of the kind of tactical consideration that does not prevent a proceeding from being an appropriate remedy.

It’s also an interesting counterpoint to this decision.

Ontario: sometimes issuing a statement of claim doesn’t mean discovery of the claim

 

Is commencing a proceeding in respect of a claim determinative of the discovery of that claim?  Not always, according to the Court of Appeal in Har Jo Management Services Canada Ltd. V. York (Regional Municipality).

Flood waters flowing from adjacent land, which the respondent municipality had expropriated for a construction project, damaged the appellant’s property.

In 2011, the appellant commenced proceeding before the Ontario Municipal Board claiming damages for injurious affection in respect of the expropriation.

On June 3, 2013, the appellant sent a letter to the respondent stating that its activities on the adjacent land caused the flooding and resulting damage.  The respondent denied causing the flooding on June 28, 2013.

The appellant commenced an action two years form the respondent’s denial.  The respondent pleaded a limitations defence and move for summary judgment .

The Statement of Claim tracked the language of the appellant’s claim to the respondent.  The Motion Judge found that the appellant knew of his claim on the day he issued it.

Not so, held the Court of Appeal.  The Expropriations Act provides for damages for injurious affection and gives the OMB exclusive jurisdiction to award such damages.  If the flooding damage was caused by the respondent’s construction, the Superior Court would have no jurisdiction to hear the claim.

The appellant’s evidence explained that, to the extent the damage from the flood properly formed part of a claim for damages for injurious affection under the Expropriations Act, it would be part of the appellant’s existing OMB claim.  The action was merely “out of an abundance of caution” in case it turned out that the flooding was not caused by the respondent’s construction, but by some other factors that did not meet the definition of injurious affection.

There was no suggestion that something other than the construction might have caused the flooding until the respondent’s June 28, 2013 letter.  It was on this date that that appellant knew that a proceeding was an appropriate remedy for a claim against the respondent and not a proceeding before the OMB.

The curious aspect of this decision is that issuing a statement of claim (or even drafting the statement of claim) was not determinative of the discovery of the claim it pleads.  There is authority for the principle that it is logically inconsistent for a plaintiff to commence an action before discovering a claim.  See also s. 14(3) of the Limitations Act.

It’s certainly hard to understand how a court could find that a statement of claim does not indicate discovery of the claim pleaded in it, or that objective discovery can occur after subjective discovery.

Here, the Court seems to have avoided this problem by finding that the appellant’s evidence demonstrated that the statement of claim did not indicate subjective discovery of the claim.  This is likely to happen very rarely, and I expect that this decision will be an outlier.

I think the limitations defence might have been avoided if the statement of claim (which I haven’t seen) had pleaded explicitly that it advanced a claim only in regards of the damage that was not within the OMB’s exclusive jurisdiction.

Ontario: amendments are subject to time-bars

In Lucky Star Developments Inc. v. ABSA Canada International, the Court of Appeal rejected the doubtful argument that because the basic limitation period applies to the commencement of proceedings, it does not apply to proceedings that have already been commenced, and therefore does not bar amendments under r. 26.01:

[7]         In oral submissions, the appellant argued that s. 4 of the Limitations Act 2002, S.O. 2002, c. 24, Sched. B does not apply to proceedings that have already been commenced, and so does not bar amendments under r. 26.01. We disagree. As the court noted in Joseph, the rules must be read in light of the Act and its purpose in establishing a basic limitation period in s. 4. Amendments adding claims after the limitation period has expired constitute prejudice.

 

Though it’s  plain this argument was bound to fail—it would mean there is no limitation of new claims asserted in already-commenced proceedings—it’s a symptom of the conceptual difficulties that arises from the language “proceeding in respect of a claim”.

The jurisprudence seems to have settled on “proceeding” having the same meaning as it does under the Rules.   Rule 1.03 defines “proceeding” to include an action and an application, and the Court of Appeal has applied this definition to the term “proceeding” as used in the Limitations Act: see e.g. Giglio v. Peters, 2009 ONCA 681 at paras. 21-22 [“Giglio”]. See also Guillemette v. Doucet, 2007 ONCA 743 at para. 20.

Strictly applied, this means that s. 4 bars actions or applications commenced in respect of a claim.  A proposed amendment to add a claim to an existing action is of course not a proposal to commence a new action.  I’ve argued before that the solution to this tension is to abandon a narrow definition of “proceeding” and to define the commencement of a proceeding broadly enough to include amending a pleading to introduce a new claim.

 

Ontario: The limitation period in s. 138.14 of the Securities Act is event-based

The Court of Appeal upheld the decision in Kaynes v. BP, P.L.C., which I wrote about here, holding that the limitation period in s. 138.14 of the Securities Act is event-based, and doesn’t commence until a public correction of a misrepresentation occurs.

[14]      The limitation period in s. 138.14 reads as follows:

138.14 (1) No action shall be commenced under section 138.3,

(a)     in the case of misrepresentation in a document, later than the earlier of,

(i)      three years after the date on which the document containing the misrepresentation was first released, and

(ii)      six months after the issuance of a news release disclosing that leave       has been granted to commence an action under section 138.3 or under comparable legislation in the other provinces or territories in Canada in respect of the same misrepresentation;

(b)     in the case of a misrepresentation in a public oral statement, later than the earlier of,

(i)      three years after the date on which the public oral statement containing the misrepresentation was made, and

(ii)      six months after the issuance of a news release disclosing that leave       has been granted to commence an action under section 138.3 or under comparable legislation in another province or territory of Canada in respect of the same misrepresentation; and

***

[15]      This is an event triggered limitation period, which commences on the making of the oral statement or the release of the impugned document. It is designed to run without regard to the plaintiff’s knowledge of the facts giving rise to the cause of action: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (CanLII), at paras. 66 and 180. The motion judge correctly found that for the eleven alleged misrepresentations made more than three years before the issuance of the appellant’s statement of claim the limitation period had expired.

[16]      The appellant’s primary submission on appeal is that s. 138.3(6) of the Act operates to extend the limitation period in the case of multiple misrepresentations. That subsection provides as follows:

(6) In an action under this section,

(a) multiple misrepresentations having common subject matter or content may, in the discretion of the court, be treated as a single misrepresentation; and

(b) multiple instances of failure to make timely disclosure of a material change or material changes concerning common subject matter may, in the discretion of the court, be treated as a single failure to make timely disclosure. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s.12(7).

[17]      The appellant argues that treating the allege misrepresentations as a single misrepresentation would have the effect of extending the three-year limitation period for claims arising from the eleven out-of-time statements. In our view, the motion judge did not err in rejecting this argument. We reach this conclusion for the following reasons.

[18]      First, there is nothing in the language of s. 138.3(6) that suggests that it is intended to modify the clear event triggered limitation period provided in s. 138.14.

[19]      Second, the appellant submits that the motion judge erred in failing to take into consideration the “twin goals of investor protection and the deterrence of corporate misconduct” in his interpretation the Act.  That view of the policy objectives of the Act is too narrow.  As Cote J. noted in CIBC, at para. 69, the policy considerations are more nuanced, “Part XXIII.1 OSA strikes a delicate balance between various market participants. The interests of potential plaintiffs and defendants and of affected long-term shareholders have been weighed conscientiously and deliberately in light of a desired precise balance between deterrence and compensation.”

[20]      Part of the balance struck by the three year event driven limitation period was to protect subsequent shareholders from claims based on alleged misrepresentations made to previous shareholders.

[21]      Third, we agree with the motion judge’s conclusion that the legislative history of s. 138.3(6) demonstrates that it was enacted at as a consequence of an Ontario Securities Commission response to a Request for Comments. It is plain from that submission that the section was designed to protect issuers from multiple rights of action or multiple liability for essentially the same misrepresentation repeated on a number of occasions.

[22]      Finally, we note that even if the appellant is correct and s. 138.3(6) was intended to modify the limitation period analysis, it is arguable that in the case of multiple misrepresentations treated as a single misrepresentation the limitation period would run from the date the misrepresentation was first made.  Subsection 138.14 mandates that the running of the limitation period commences when the document is first released. Applied literally in this case, the result would be that the limitation period for all fourteen misrepresentations commenced in 2007 and the claims based on all of the documents would be statute-barred.

Ontario: the limitation of stand-alone mortgage guarantees

In Hilson v. 1336365 Alberta Ltd., the court determined, for the first time, the limitation period for a stand-alone mortgage guarantee agreement. A stand-alone guarantee that affects or relates to an interest in land, and includes covenants to pay money secured by a mortgage, is subject to a ten year limitation period under s. 43(1) the Real Property Limitation Act.

[41]           The application of a predecessor provision to s. 43(1) of the Real Property Limitations Act (being s. 49(1)(k) of the Limitations Act, R.S.O. 1914, c. 75) was considered by the Ontario Court of Appeal in Martin v. Youngson (1924), 55 O.L.R. 658 (C.A.).  In that case, the mortgagee commenced an action against the guarantor of the mortgage more than ten years after the mortgage became due.  If the predecessor to s. 43(1) did not apply, the limitation period would have been 20 years.   Pursuant to s. 49(1)(b) of the predecessor statute, the 20-year limitation period applied to “an action under a bond, or other indenture, except upon a covenant contained in an indenture of mortgage”.  The guarantee covenant in Martin was contained in the mortgage indenture, which the guarantor had executed.  At p. 663, the court found that the applicable limitation period was ten years, as indicated below:

Dealing now with the successive points argued by the appellant, I think that this is “an action upon a covenant contained in an indenture of mortgage,” and therefore comes within sec. 49, subsec. 1(k), of the Limitations Act. The whole document, exhibit 1, is an indenture of mortgage. I express no opinion as to what would be the proper conclusion if the guaranty were contained in a separate collateral document. That point can be decided when it arises. But, so far as this action is concerned, it seems to me that it falls precisely within the words of the statute, and therefore that the period of limitation is 10 years, and not 20. [Emphasis added.]

[42]           In its 2012 decision in Equitable Trust, the Ontario Court of Appeal considered and affirmed its previous decision in Martin.  As in Martin, the issue in Equitable Trust was the applicable limitation period where the guarantee covenant was contained in the mortgage indenture that the guarantor signed, rather than in a “separate collateral document”.  Counsel did not bring to my attention any subsequent decision that considered whether the ten-year limitation period would apply to a claim under a guarantee covenant in a separate document, the issue that Martin expressly left outstanding.

[43]           In Equitable Trust, the guarantor argued that the limitation period for the guarantee contained in the mortgage was two years, based on the following reasoning.  The guarantee covenant in that case was a demand obligation governed by ss. 5(3) and (4) of the Limitations Act, 2002.  Those provisions were intended to apply to all demand obligations, including a demand guarantee obligation contained in a mortgage indenture.  The court rejected that argument.  Relying on s. 2(1)(a) of the Limitation Act, 2002, the court held that the ten-year limitation period in the Real Property Limitations Act applied.  In doing so, the court stated as follows (at paras. 27, 28, 30 and 31):

27        … [T]he effect of s. 2(1)(a) of the Limitations Act, 2002 is to preclude the limitation periods of that Act from applying when the Real Property Limitations Act applies. Put simply, the Limitations Act, 2002, was enacted to deal with limitation periods other than those affecting real property.

28        A guarantee given in conjunction with a mortgage transaction affects real property law rights. Guarantors, if they have made payments toward the mortgage debt, need to be served in mortgage enforcement proceedings because they have an equity of redemption and an interest in the mortgaged property…. [Case citations omitted.]

…

30        It is true that it may not always be easy to determine whether a particular guarantee … is subject to the Limitations Act, 2002 or, like the guarantee in the case at bar, is subject to the Real Property Limitations Act. However, it does not follow that all guarantees should be treated the same way. It has been the case historically that guarantees associated with land transactions have different limitation periods from guarantees associated with contract claims. Moreover, as already noted, it is my view that the Legislature intended that all limitation periods affecting land be governed by the Real Property Limitations Act.

31        The mortgage enforcement practice, as demonstrated in the case at bar, is to give guarantors notice of power of sale proceedings. In my view, it would cause much more confusion and uncertainty in the law, if the limitation period for enforcing the mortgage debt was different from the limitation period for enforcing guarantees of that debt. [Emphasis added].

[44]           In its subsequent decision in Zabanah v. Capital Direct Lending Corp., 2014 ONCA 872 (CanLII), 123 O.R. (3d) 350, the Court of Appeal acknowledged that it was appropriate to circumscribe the expansive expression in Equitable Trust (at para. 30) of the legislative intent that “all limitation periods affecting land be governed by the Real Property Limitations Act.”  In Zabanah, the assignee of a mortgage was unable to recover the amount due under the mortgage either from the mortgagor or upon the sale of the mortgaged property.  The assignee sued the original mortgagee for negligence and breach of contract.  Summary judgment was granted, dismissing the action against the original mortgagee on the basis that the action had not been commenced within the two-year limitation period in the Limitations Act, 2002.  The assignee argued on appeal that the ten-year limitation period in Real Property Limitations Act applied, relying on the statement in Equitable Trust that all limitation periods affecting land were governed by that statute.  The appeal court held that the motion judge was correct that the two-year limitation period applied.  The court distinguished Equitable Trust on that basis that the assignee’s action against the original mortgagee “is simply a negligence and contract claim, and is not a claim to an interest in land, as in [Equitable Trust].”

[45]           Defence counsel argued that as in Zabanah, the plaintiff’s claim against the Lightles under the stand-alone guarantees was a contract claim, not a claim to an interest in land.  By the same reasoning, the two-year limitation period would apply to the plaintiff’s claim against the Lightles under those agreements, according to the defence.

[46]            Defence counsel also argued that s. 43(1) of the Real Property Limitation Act does not apply because the stand-alone guarantees do not constitute an “other instrument … to repay the whole or any part of any money secured by a mortgage.”  While the term “instrument” is not defined in the Real Property Limitation Act, defence counsel referred to other statutory provisions to support his argument that the term “instrument” should be read as being limited to an instrument that affects or relates to an interest in land.  In his submission, the stand-alone guarantees did not fall within the meaning of “instrument” as that term was used in s. 43(1).

[47]           In particular, defence counsel referred to the definition of “instrument” in s. 1 of the Registry Act, R.S.O. 1990, c. R.20, as follows:

“instrument” includes every instrument whereby title to land in Ontario may be transferred, disposed of, charged, encumbered or affected in any other way, and, without limiting the generality of the foregoing, includes … a deed, conveyance, mortgage, assignment of mortgage, certificate of discharge of mortgage, … a contract in writing, … and every notice, caution and other instrument registered in compliance with an Act of Canada or Ontario;

[48]           Under s. 22 of the Registry Act, any instrument as defined in s. 1 may be registered under that Act, subject to specified exceptions.  As well, under s. 23 of that Act, the land registrar may refuse to accept for registration any instrument that, in the registrar’s opinion, does not affect or relate to an interest in land.  On the same basis, the registrar may refrain from recording part of a registered instrument.  As defence counsel also noted, there is no definition of “instrument” in the Land Titles Act, but s. 81 of that Act is to the same effect as s. 23 of the Registry Act.  Under s. 81 of the Land Titles Act, the land registrar may refuse to register all or part of an instrument on the basis that it does not affect or relate to an interest in land.

[49]           Applying the foregoing legislative provisions, it is clear that only instruments that affect or relate to an interest in land are capable of being registered under the Land Titles Act or the Registry Act.  Registration under those statutes provides public notice relating to ownership and other interests in real property in Ontario, and provides the basis for determining the priority of those interests.  What was not clear to me was why the meaning of instrument for registration purposes was determinative (or even relevant) when interpreting the meaning of that term for purposes of determining the limitation period for court proceedings, as set out in s. 43(1) of the Real Property Limitation Act.

[50]           In any case, plaintiff’s counsel did not dispute that the term “instrument” in s. 43(1) should be interpreted as meaning an instrument that affects or relates to an interest in land.  As explained further below, I agree with plaintiff’s counsel that the stand-alone guarantees are instruments that affect or relate to an interest in land, applying the reasoning of the Court of Appeal in Equitable Trust.  As well, by their terms, the stand-alone agreements include covenants “to repay … money secured by a mortgage”, that is, the second mortgages between the plaintiff and the corporate defendants.  Accordingly, I have concluded that the limitation period for the plaintiff’s claim under the stand-alone guarantees was ten years.

This reasoning seems sound to me, but I find the real property limitations scheme as arcane as everyone else.

Ontario: simplified procedure and summary judgment motions on limitations defences

Cornacchia v. Rubinoff illustrates the difficulties of moving for summary judgment on limitations defences in simplified procedure actions.  This is because there are no cross-examinations on affidavits under simplified procedure. The court denied the motion on the basis that the simplified procedure did not permit the findings of fact required by the limitations defence:

[3]               An important factor in the argument on the motion is that the underlying claim was commenced under the simplified procedure provided in rule 76.  As a result, pursuant to rule 76.04(1), cross-examination on the affidavits filed on the motion is not permitted.  A further implication of the fact that the underlying action is brought under the simplified procedure rules, is that it can be expected to be a relatively short trial.

[4]               For reasons that I will explain, I find that the combination of two procedural aspects of this motion lead me to conclude that the limitation period issue in this case is not an appropriate issue for summary judgment, either in favour of the defendant, or in favour of the plaintiff.  I find that in the absence of cross-examination on the affidavits filed on the motion, particularly the plaintiff’s affidavit, the record on this motion does not allow me to make the necessary findings of fact and credibility to fairly dispose of the motion.

[30]           I find that the absence of cross-examination on the affidavits filed in the motion, raises concerns for my ability to make the necessary findings of fact and credibility to dispose of the motion, for the following reasons.

[31]           In order to assess the subjective branch of the analysis – when the plaintiff first knew that the four criteria in s. 5(1)(a)(i) to (iv) were met – the court must make factual findings about what information the plaintiff knew when, and his subjective belief about that information in relation to the criteria in s. 5(1)(a)(i) to (iv).

[32]           This assessment involves making findings of credibility about the plaintiff’s evidence on the motion.  I note that counsel for the defendant was clear during the course of argument that she was relying on both the subjective and objective branches of the Limitations Act analysis.

[40]           Concept Plastics does not hold that summary judgment will never be available on a simplified procedure matter due to the unavailability of cross-examination on the affidavits filed for the motion.  Rather, in Concept Plastics the Court of Appeal signaled the need for caution in considering summary judgment motions in simplified procedure matters, due to the unavailability of cross-examination.  Where a motions judge is considering a summary judgment motion in a simplified procedure matter, the judge should consider if there is unfairness as a result of the unavailability of cross-examination.  If the motions judge grants the motion, the judge should explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion: see Concept Plastics at paragraphs 24-25.

Ontario: the limitation of new causes of action

In David v. Easte Side Mario’s Barrie, the Court of Appeal quotes from The Law of Civil Procedure in Ontario for the principle that an alternative claim for relief arising out of the same facts is not a new cause of action for limitations purposes:

[32]      And, quoting from Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3d ed. (Toronto: LexisNexis Canada, 2017), at p. 186:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.

See also 1100997 Ontario Limited, at para. 20.

Ultimately, the Court applied the “fundamentally different claim” test to conclude that the plaintiff wasn’t entitled to the amendment.

As I discussed when the Court of Appeal last addressed this issue, the “fundamentally different claim” test makes a lot of sense.

My complaint, which I recognise verges on pedantry, is that a cause of action analysis, and the casual use of the word “claim”, is problematic in the limitations context.  The Limitations Act has nothing to do with causes of action, and, as I often note, does not appear in the Act.  This is because the Act uses the language of “claim”, which reflects an intentional break with cause of action accrual as determinative of the commencement of time.  Claims are not causes of action, and causes of action have very little do with the operation of the current limitations scheme.  It’s unhelpful when the Court fails to account for this.