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.
