Pleading

Ontario: The Court of Appeal on adding new claims to a proceeding

The Court of Appeal in 1100997 Ontario Limited v. North Elgin Centre Inc. sets out the test for amending a pleading to add a new claim outside a limitation period (making our last post rather unnecessary).  The court will refuse an amendment when it seeks to advance after the expiry of the limitation period a “fundamentally different claim” based on facts not originally pleaded:

[19]      A cause of action is “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this court in July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.), at para. 23.

[20]      In Morden & Perell, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at p. 142, the authors state:

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. [Footnotes omitted.]

[21]      In Dee Ferraro Ltd. v. Pellizzari, this court noted the distinction between pleading a new cause of action and pleading a new or alternative remedy based on the same facts originally pleaded. The appellants had commenced an action against their lawyer claiming damages for breaches of contract, trust and fiduciary duty and for fraud and negligence. The appellants then sought to amend their pleading. This court, in overturning the motion judge’s dismissal of the motion to amend, concluded that the proposed amendments, such as claims for a mandatory order and a constructive trust over shares, could be made because they flowed directly from facts previously pleaded.

[22]      By contrast, a proposed amendment will not be permitted where it advances a “fundamentally different claim” after the expiry of a limitation period: Frohlick v. Pinkerton Canada Ltd. In that case, the court did not permit the plaintiff in a wrongful dismissal action to amend the statement of claim to assert a claim for damages for constructive dismissal on the basis that the limitation period had expired. This court dismissed the appeal. The amendment regarding constructive dismissal related to events that occurred prior to the events described in the original statement of claim that were unrelated to that claim. The defendant was unaware of the new allegations prior to the plaintiff seeking the amendments, and the events were not put in issue or encompassed within the original claim.

[23]      Based on the foregoing, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a “fundamentally different claim” based on facts not originally pleaded.

I think this is a sound conclusion. Allowing amendments so long as they don’t advance a fundamentally different claim based on the facts originally pleaded makes sense, though it doesn’t seem like much of a departure from the “same factual matrix” test.  Indeed, later in the decision Justice van Rensburg refers to the factual matric concept:

[38]      I therefore conclude that the proposed amendments contained in the statement of claim ought not to have been refused on the basis that they raised new claims based on new causes of action.

Perhaps this new formulation’s chief virtue is that it doesn’t necessarily require a cause of action analysis.  Comparing claims is materially different than comparing causes of action.  “Claim” is a defined term in the Limitations Act, whereas the words “cause of action” don’t appear at all in the Limitations Act, and particular causes of action and their accrual are immaterial to a limitations analysis.  Mischief results when the court forgets this.

Other aspects of the decision are noteworthy.  Justice van Rensburg concludes that when a notice of application commences a proceeding, the court should consider both the notice of application and the supporting affidavit material to determine whether a proposed amendment sets forth a new claim.

Justice van Rensburg follows the 1989 Court of Appeal decision in Energy Probe v. Canada (Attorney  General) for the principle that affidavit materials on an application form part of the pleadings.  The interesting question that arises from this principle is its interaction with the affirmative nature of a limitations defence.  In an action, the defendant must plead the Limitations Act in the statement of defence.  The plaintiff may then plead the facts supporting a discovery argument in reply.  See the Court of Appeal decision in Collins.

Does this mean that the respondent to an application should “plead” the limitations defence in  a responding affidavit? Should the applicant then plead the facts supporting a discovery argument in a reply affidavit?  Increasingly, I’m of the mind that it’s impossible to square limitations law and application procedure (with certain exceptions, especially contested applications to pass accounts), but this is an issue (and likely an article) for another day.

Lastly, Justice van Rensburg  also reminds us that an order refusing leave to amend a pleading to add a new claim outside a limitation period is a final order:

[17]      In Energy Probe v. Canada (Attorney General) (1989), 1989 CanLII 258 (ON CA), 68 O.R. (2d) 449 (C.A.), leave to appeal refused 37 O.A.C. 160 (S.C.C.), in determining whether a cause of action was disclosed, this court stated that “affidavit materials on an application are to be considered as the pleadings” (at para. 10). Further, where oppression proceedings commenced by notice of application were converted into an action in Przysuski v. City Optical Holdings Inc., 2014 ONSC 3686 (CanLII), Perell J. refused to strike paragraphs of the statement of claim as raising unanticipated claims as an abuse of process because “[t]he Notice of Application should be read with its supporting affidavits and with the evidentiary record for the Application” (at para. 11).

Ontario: the limitation of adding new claims to a proceeding

 

Justice Nordheimer’s decision in Farmers Oil and Gas Inc. v. Ontario (Natural Resources) has a useful overview of the jurisprudence of amending a pleading to add a new cause of action after the expiry of the limitation period.  It will be a good starting point if you encounter the issue:

[14]           As I have said, the central issue between the parties is whether the proposed amendments give greater clarity or particularity to the existing claim, or whether they advance new claims.  On that point, the appellant relies heavily on the decision in 1309489 Ontario Inc. v. BMO Bank of Montreal (2011), 2011 ONSC 5505 (CanLII), 107 O.R. (3d) 384 (S.C.J.)where Lauwers J. addressed this same issue.  In that decision, Lauwers J. referred to the two different approaches to determining whether a claim is a new cause of action.  On the one hand, one can see a cause of action as a factual matrix.  On the other hand, one can see a cause of action simply as the legal basis upon which the claim for relief is based.  Lauwers J. concluded that the trend of the case law was to favour the broader factually oriented approach to the meaning of a cause of action.  Under that broader approach, if the defendant has notice of the factual matrix underlying the claim being advanced, then amendments that arise out of, or do not depart from, that factual matrix do not constitute “new” causes of action that would not be allowed by way of amendment.  On that point, Lauwers J. said, at para. 27:

A plaintiff is not required to name or specify the technical cause of action as an essential part of pleading; in saying this, I do not resile from the requirement noted in Morden and Perell, supra, that ordinarily the facts as originally pleaded, or as better particularized in the proposed new pleading, must be able to sustain the technical cause of action.  [emphasis added]

[15]           A very short time later, Lauwers J. had to deal with this same issue a second time.  In Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers, [2011] O.J. No. 4886 (S.C.J.) the plaintiff sought to amend the statement of claim to advance a conspiracy claim, along with other amendments.  The defendant objected on the basis that any such claim was barred by the expiration of the limitations period.  In allowing the amendments to be made, Lauwers J. again addressed the meaning of a cause of action and said, at para. 25:

I find that the broader, factually-oriented approach to the meaning of “cause of action” in interpreting and applying rule 26.01 is the correct approach.  It is consistent with the trend of the cases and is also consistent with a purposive approach to the interpretation of limitations legislation.  This means that the defendant’s basic entitlement is to have notice of the factual matrix out of which the claim for relief arises.  In my view the existing set of pleadings raises the factual matrix of concern to the plaintiffs and within which the defendants’ possible liability is to be located.  The proposed Fresh Statement of Claim simply reframes those allegations of fact.

[16]           The approach taken by Lauwers J. was tacitly approved by the Court of Appeal in Rausch v. Pickering (City),[2013] O.J. No. 5584 (C.A.) where Epstein J.A. said, at para. 95:

As Lauwers J. (as he then was) emphasized in BMO Bank of Montreal, at para. 27, as long as the existing pleading “raises the factual matrix of concern to the plaintiff and within which [the defendant’s] possible liability is to be located[,] it successfully asserts a cause of action within the meaning of rule 21.01(1)(b).”  Thus, even if the plaintiff does not explicitly set out the technical cause of action on which it relies, if the facts as pleaded implicitly advance such a claim, the court ought not to strike the pleadings: BMO Bank of Montreal, at paras. 26-27.

[17]           I say that the approach was tacitly approved only because the issue that was before the Court of Appeal in Rauschhad less to do with the expired limitation period and more to do with whether the proposed amendment disclosed a cause of action.

[18]           The respondent, on the other hand, relies on a different line of cases beginning with Fuda v. Jim McIntosh Petroleum Engineering Ltd., [2013] O.J. No. 5208 (S.C.J.); aff’d. [2014] O.J. No. 2255 (C.A.) where Wilton-Siegel J. granted summary judgment dismissing certain claims, that had been added to the statement of claim by amendment, on the basis that the limitations period had expired.  In addressing the issue whether the subsequent claims could be seen to have been part of the original claim, Wilton-Siegel J. said, at para. 310:

Given the principles set out above, I conclude that each of these causes of action were asserted for the first time in the 2013 Amendment dated February 8, 2013, other than the original cause of action based on the 2003 Reserve Report Representation, which was asserted in the Statement of Claim.  The fact that both the cause of action asserted in the Statement of Claim and the four additional causes of action asserted in the 2013 Amendment lie in negligent misrepresentation is not sufficient to conclude that these remaining causes of action are contained in the Statement of Claim.

[19]           It is of some importance to this conclusion to be aware of how the Court of Appeal approached this conclusion.  In dismissing the appeal, the court said, at para. 9:

The misrepresentation claims that were asserted after the expiry of the limitation period advanced new causes of action that were unconnected to the factual matrix pleaded in the original statement of claim.  [emphasis added]

[20]           The respondent relies on two other authorities.  One is Winnipeg (City) v. Entegra Credit Union Ltd., [2013] M.J. No. 10 (C.A.).  In that case, the motion judge had permitted the plaintiff to amend its statement of claim.  The motion judge found that the proposed amendments did not constitute new causes of action.  The Court of Appeal reversed that finding.  The Court of Appeal found that the motion judge had misunderstood the nature of the claim being advanced by the proposed amendments, that is, a separate and distinct claim for breach of contract that was “independent” of the existing claim.

[21]           The other authority is American Axle & Manufacturing, Inc. v. Durable Release Coaters Ltd., [2010] O.J. No. 2515 (S.C.J.) where the issue was whether certain claims at trial were barred by the expiration of a limitations period.  The claims had been added to the statement of claim by way of amendment with the limitation period issue being expressly reserved for determination at trial.  The trial judge, Newbould J. , found that those claims were barred by the limitation period, and were not saved by any suggestion that they were not “new” causes of action, but rather were encompassed within the same factual situation previously pleaded.  In so concluding, Newbould J. said, at para. 50:

In my view the amendments do not plead alternative claims for relief arising out of the same facts previously pleaded.  The new facts pleaded are relied upon to support new causes of action and new heads of damages arising from those new causes of action.  While it is the same contract as previously pleaded that is claimed in the amendments to have been breached, the contractual provisions and breaches relied on in the amendment are different from the previous pleading and the breaches and resulting damages are different from those previously pleaded.  They constitute new causes of action.

[22]             As may be obvious from the above, the distinction between the authorities relied upon by the appellant, and those relied upon by the respondent, turns on whether the proposed amendments do, or do not, arise out of the same facts, or the factual matrix, that was pleaded in the original statement of claim.  If they do, then the amendments should be permitted.  If they do not, and the limitations period has expired, then the amendments should be refused.

[23]           In determining this issue in this case, I must begin by reading the original statement of claim generously and with due allowance for drafting deficiencies – see Operation Dismantle Inc. v. Canada, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441.  In my view, it is clear from a generous reading of the statement of claim that the appellant’s original claim arises out of an alleged course of conduct between it and the Ministry that began in 1991, and continued through to 1995, when the new policy was adopted, and the alleged unfair dealing by the Ministry with the appellant came to light.  It is clear that the appellant was, at all relevant times, interested in obtaining the near shore rights.  The appellant claims that it did not take steps to acquire those rights only because the Ministry told it that it did not need to because, up until 1995, the Ministry was not in a position to grant those rights.  What the appellant alleges, however, is that the Ministry did not tell it that companies could file applications for those rights and, specifically, that one company had filed for the very rights that the appellant was seeking.

[24]           When one then looks at the proposed amendments, they allege facts that are clearly part and parcel of these dealings.  They arise out of the same factual matrix.  In that respect, they fall into the Sweda and related line of cases and are thus distinguishable from the Fuda line of cases.  They provide precisely the type of particulars regarding what was said, and between whom, that ought to have been part of the original statement of claim.  What they do not do, however, is allege some new and distinct claim unrelated to that original claim.

Ontario: A limitations defence must be pleaded

In Singh v. Trump, Justice Perell dismissed a plaintiff’s claim as time-barred despite the defendants not pleading the Limitations Act, seeking leave to amend to plead it, or raising it in their written submissions.  His reasons neither refer to the fact that the defence was not pleaded nor explain why, in the absence of the plea, he should invoke the Limitations Act.

In the circumstances, the Court of Appeal found that it was not appropriate for Justice Perell to invoke the Limitations Act and dismiss the claim as statute-barred.  A limitations defence is an affirmative defence and must be pleaded.  Justice Rouleau’s decision provides a helpful overview of the relevant jurisprudence:

[132]   This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685 (CanLII), [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:

In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading.

[133]   Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826 (CanLII), 225 A.C.W.S. (3d) 237, at para. 69:

The failure to raise substantive responses to a plaintiff’s claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of theRules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.

[134]   In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:

If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38).

[135]   MacPherson J.A. also noted that at no time during trial, including during closing arguments when the trial judge raised the limitation issue, did S seek to amend his pleadings. Nor did he seek such an amendment during the appeal hearing.

[136]   In my view, the defendants’ failure, in this case, to plead a Limitations Act defence or even to seek an amendment to their pleading to do so is, as it was in S. (W.E.) v. P. (M.M.), fatal.

Ontario: arguing discoverability doesn’t require a Reply

After a lengthy summer break, Under the Limit returns.  Expect a flood of new posts this week and next.

We begin with a pleadings decision in which substance triumphed over form.  A plaintiff’s failure to deliver to a Reply to a Statement of Defence pleading a limitations defence won’t necessarily bar the plaintiff from making a discoverability argument.

The defendant in Pershad v. Lachan moved for the dismissal of the plaintiff’s action on the basis that it was statute-barred by the expiry of the limitation period.  She ventured the rather dubious argument that once she pleaded a limitations defence in her Statement of Defence, rule 25.08 of the Rules of Civil Procedure required the plaintiff to deliver a Reply setting out the facts that he intended to prove to establish the discovery of his claim within the limitation period.  The defendant submitted that the failure to do so was fatal to the plaintiff’s claim.

The plaintiff counterargued that a Reply was unnecessary because the facts pleaded in his Statement of Claim were sufficient to raise the issue of discoverability.

Justice Lococo held that if Statement of Claim had been insufficient to raise discoverability (it was not), the appropriate course of action would have been to grant leave to file a Reply or amended  Statement of Claim to remedy the deficiency.

 

Ontario: The Court of Appeal reminds us to respond to limitations defences by delivering a reply

Leave a Comment

The Court of Appeal decision in Collins v. Cortez is a reminder that plaintiffs may respond to a limitations defence by delivering a reply.  Plaintiffs needn’t plead facts supporting a discovery argument in the Statement of Claim in anticipation of a limitations defence.

In Collins, Cortez moved to dismiss Collins’s personal injury claim on the basis that it was commenced two years after her accident and statute-barred by the expiry of the limitations period. Justice Gordon granted the motion. He gave effect to the presumption in section 5(2) of the Limitations Act, 2002 that the limitation period commenced on the date of accident. He held that because Collins did not plead discoverability facts in her Statement of Claim, she couldn’t make out a section 5(1) discoverability argument.

The Court of Appeal allowed Collins’s appeal:

In the normal course, if a limitations defence is raised, as here, in a statement of defence, and the plaintiff relies on the discoverability principle, the material facts relevant to discoverability should be pleaded in reply. I disagree with the conclusion of the motion judge that the appellant was required to plead the facts relevant to discoverability in her statement of claim. The expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence. As such, discoverability, which is relevant to the limitations defence, need not be anticipated by a plaintiff and addressed in her statement of claim [citations omitted].

Update: Failing to deliver a Reply won’t necessarily bar a plaintiff from arguing discoverability.