<\/p>\n
Justice Nordheimer’s decision in Farmers Oil and Gas Inc. v. Ontario (Natural Resources)<\/em><\/a>\u00a0has a useful overview of the jurisprudence of amending a pleading to add a new cause of action after the expiry of the limitation period.\u00a0 It will be a good starting point if you encounter the issue:<\/p>\n [<\/a>14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 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.\u00a0 On that point, the appellant relies heavily on the decision in 1309489 Ontario Inc. v. BMO Bank of Montreal<\/i> (2011), 2011 ONSC 5505 (CanLII)<\/a>, 107 O.R. (3d) 384 (S.C.J.)<\/span><\/span>where Lauwers J. addressed this same issue.\u00a0 In that decision, Lauwers J. referred to the two different approaches to determining whether a claim is a new cause of action.\u00a0 On the one hand, one can see a cause of action as a factual matrix.\u00a0 On the other hand, one can see a cause of action simply as the legal basis upon which the claim for relief is based.\u00a0 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.\u00a0 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 \u201cnew\u201d causes of action that would not be allowed by way of amendment.\u00a0 On that point, Lauwers J. said, at para. 27:<\/p>\n 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<\/i>, that ordinarily the facts as originally pleaded, or as better particularized in the proposed new pleading<\/u>, must be able to sustain the technical cause of action.\u00a0 [emphasis added]<\/p>\n [<\/a>15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 A very short time later, Lauwers J. had to deal with this same issue a second time.\u00a0 In Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers<\/i>, [2011] O.J. No. 4886 (S.C.J.)<\/span><\/span> the plaintiff sought to amend the statement of claim to advance a conspiracy claim, along with other amendments.\u00a0 The defendant objected on the basis that any such claim was barred by the expiration of the limitations period.\u00a0 In allowing the amendments to be made, Lauwers J. again addressed the meaning of a cause of action and said, at para. 25:<\/p>\n I find that the broader, factually-oriented approach to the meaning of \u201ccause of action\u201d in interpreting and applying rule 26.01<\/a> is the correct approach. \u00a0It is consistent with the trend of the cases and is also consistent with a purposive approach to the interpretation of limitations legislation. \u00a0This means that the defendant\u2019s basic entitlement is to have notice of the factual matrix out of which the claim for relief arises. \u00a0In my view the existing set of pleadings raises the factual matrix of concern to the plaintiffs and within which the defendants\u2019 possible liability is to be located. \u00a0The proposed Fresh Statement of Claim simply reframes those allegations of fact.<\/p>\n [<\/a>16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The approach taken by Lauwers J. was tacitly approved by the Court of Appeal in Rausch v. Pickering (City),<\/i>[2013] O.J. No. 5584 (C.A.)<\/span><\/span> where Epstein J.A. said, at para. 95:<\/p>\n As Lauwers J. (as he then was) emphasized in BMO Bank of Montreal<\/i>, at para. 27, as long as the existing pleading \u201craises the factual matrix of concern to the plaintiff and within which [the defendant\u2019s] possible liability is to be located[,] it successfully asserts a cause of action within the meaning of rule 21.01(1)(b).\u201d \u00a0Thus, 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<\/i>, at paras. 26-27.<\/p>\n [<\/a>17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 I say that the approach was tacitly approved only because the issue that was before the Court of Appeal in Rausch<\/i>had less to do with the expired limitation period and more to do with whether the proposed amendment disclosed a cause of action.<\/p>\n [<\/a>18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent, on the other hand, relies on a different line of cases beginning with Fuda v. Jim McIntosh Petroleum Engineering Ltd., <\/i>[2013] O.J. No. 5208 (S.C.J.)<\/span><\/span>; aff\u2019d. [2014] O.J. No. 2255 (C.A.)<\/span><\/span> 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.\u00a0 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:<\/p>\n 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. \u00a0The 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.<\/p>\n [<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 It is of some importance to this conclusion to be aware of how the Court of Appeal approached this conclusion.\u00a0 In dismissing the appeal, the court said, at para. 9:<\/p>\n 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<\/u>.\u00a0 [emphasis added]<\/p>\n [<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent relies on two other authorities.\u00a0 One is Winnipeg (City) v. Entegra Credit Union Ltd<\/i>., [2013] M.J. No. 10 (C.A.)<\/span><\/span>.\u00a0 In that case, the motion judge had permitted the plaintiff to amend its statement of claim.\u00a0 The motion judge found that the proposed amendments did not constitute new causes of action.\u00a0 The Court of Appeal reversed that finding.\u00a0 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 \u201cindependent\u201d of the existing claim.<\/p>\n [<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The other authority is American Axle & Manufacturing, Inc. v. Durable Release Coaters Ltd.,<\/i> [2010] O.J. No. 2515 (S.C.J.)<\/span><\/span> where the issue was whether certain claims at trial were barred by the expiration of a limitations period.\u00a0 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.\u00a0 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 \u201cnew\u201d causes of action, but rather were encompassed within the same factual situation previously pleaded.\u00a0 In so concluding, Newbould J. said, at para. 50:<\/p>\n In my view the amendments do not plead alternative claims for relief arising out of the same facts previously pleaded. \u00a0The new facts pleaded are relied upon to support new causes of action and new heads of damages arising from those new causes of action. \u00a0While 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. \u00a0They constitute new causes of action.<\/p>\n [<\/a>22]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 \u00a0\u00a0As 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.\u00a0 If they do, then the amendments should be permitted.\u00a0 If they do not, and the limitations period has expired, then the amendments should be refused.<\/p>\n [<\/a>23]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 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 \u2013 see Operation Dismantle Inc. v. Canada<\/i>, 1985 CanLII 74 (SCC)<\/a>, [1985] 1 S.C.R. 441<\/span><\/span>.\u00a0 In my view, it is clear from a generous reading of the statement of claim that the appellant\u2019s 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.\u00a0 It is clear that the appellant was, at all relevant times, interested in obtaining the near shore rights.\u00a0 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.\u00a0 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.<\/p>\n [<\/a>24]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 When one then looks at the proposed amendments, they allege facts that are clearly part and parcel of these dealings.\u00a0 They arise out of the same factual matrix.\u00a0 In that respect, they fall into the Sweda<\/i> and related line of cases and are thus distinguishable from the Fuda<\/i> line of cases.\u00a0 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.\u00a0 What they do not do, however, is allege some new and distinct claim unrelated to that original claim.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":" Justice Nordheimer’s decision in Farmers Oil and Gas Inc. v. Ontario (Natural Resources)\u00a0has a useful overview of the jurisprudence of amending a pleading to add a new cause of action after the expiry of the limitation period.\u00a0 It will be a good starting point if you encounter the issue: [14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 As … Continue reading Ontario: the limitation of adding new claims to a proceeding<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[297,36,298],"class_list":["post-534","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-claim","tag-pleading","tag-procedure"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/534","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=534"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/534\/revisions"}],"predecessor-version":[{"id":535,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/534\/revisions\/535"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=534"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=534"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=534"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n