{"id":537,"date":"2016-11-19T18:47:23","date_gmt":"2016-11-19T22:47:23","guid":{"rendered":"http:\/\/limitations.ca\/?p=537"},"modified":"2016-11-19T18:50:52","modified_gmt":"2016-11-19T22:50:52","slug":"ontario-the-court-of-appeal-on-adding-new-claims-to-a-proceeding","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=537","title":{"rendered":"Ontario: The Court of Appeal on adding new claims to a proceeding"},"content":{"rendered":"

The Court of Appeal in 1100997 Ontario Limited v. North Elgin Centre Inc.<\/em><\/a>\u00a0sets out the test for amending a pleading to add a new claim outside a limitation period (making our\u00a0last\u00a0pos<\/a>t rather unnecessary).\u00a0 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:<\/p>\n

\n

[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 A cause of action is \u201ca factual situation the existence of which entitles one person to obtain from the court a remedy against another person\u201d: Letang v. Cooper<\/em>, [1965] 1 Q.B. 232 (C.A.)<\/span>, at pp. 242-43<\/span>, as adopted by this court in July v. Neal<\/em> (1986), 1986 CanLII 149 (ON CA)<\/a>, 57 O.R. (2d) 129 (C.A.)<\/span>, at para. 23<\/span>.<\/p>\n

[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 In Morden & Perell, The Law of Civil Procedure in Ontario<\/em>, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at p. 142, the authors state:<\/p>\n

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.]<\/p>\n

[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 In Dee Ferraro Ltd. v. Pellizzari<\/em>, 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\u2019s 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.<\/p>\n

[<\/a>22]\u00a0\u00a0 \u00a0\u00a0 By contrast, a proposed amendment will not be permitted where it advances a \u201cfundamentally different claim\u201d after the expiry of a limitation period: Frohlick v. Pinkerton Canada Ltd.<\/em> 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.<\/p>\n

[<\/a>23]\u00a0\u00a0 \u00a0\u00a0 Based on the foregoing, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a \u201cfundamentally different claim\u201d based on facts not originally pleaded.<\/p>\n<\/blockquote>\n

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<\/a>” test.\u00a0 Indeed, later in the decision Justice van Rensburg refers to the factual matric concept:<\/p>\n

[<\/a>38]\u00a0\u00a0 \u00a0\u00a0 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.<\/p><\/blockquote>\n

Perhaps this new formulation’s chief virtue is that it doesn’t necessarily require a cause of action analysis.\u00a0 Comparing claims is materially different than comparing causes of action.\u00a0 “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.\u00a0 Mischief results when the court forgets this<\/a>.<\/p>\n

Other aspects of the decision are noteworthy. \u00a0Justice 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.<\/p>\n

Justice van Rensburg follows the 1989 Court of Appeal decision in Energy Probe v. Canada (Attorney\u00a0 General) <\/em><\/a>for the principle that affidavit materials on an application form part of the pleadings.\u00a0 The interesting question that arises from this principle is its interaction with the affirmative nature of a limitations defence.\u00a0 In an action, the defendant must plead the Limitations Act in the statement of defence.\u00a0 The plaintiff may then plead the facts supporting a discovery argument in reply.\u00a0 See the Court of Appeal decision in Collins<\/em><\/a>.<\/p>\n

Does this mean that the respondent to an application should “plead” the limitations defence in \u00a0a responding affidavit? Should the applicant then plead the facts supporting a discovery argument in a reply affidavit?\u00a0 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.<\/p>\n

Lastly, Justice van Rensburg \u00a0also reminds us that an order refusing leave to amend a pleading to add a new claim outside a limitation period is a final order:<\/p>\n

[<\/a>17]\u00a0\u00a0 \u00a0\u00a0 In Energy Probe v. Canada (Attorney General)<\/em> (1989), 1989 CanLII 258 (ON CA)<\/a>, 68 O.R. (2d) 449 (C.A.)<\/span><\/span>, leave to appeal refused 37 O.A.C. 160 (S.C.C.)<\/span><\/span>, in determining whether a cause of action was disclosed, this court stated that \u201caffidavit materials on an application are to be considered as the pleadings\u201d (at para. 10). Further, where oppression proceedings commenced by notice of application were converted into an action in Przysuski v. City Optical Holdings Inc.<\/em>, 2014 ONSC 3686 (CanLII)<\/span><\/a><\/span>, Perell J. refused to strike paragraphs of the statement of claim as raising unanticipated claims as an abuse of process because \u201c[t]he Notice of Application should be read with its supporting affidavits and with the evidentiary record for the Application\u201d (at para. 11).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeal in 1100997 Ontario Limited v. North Elgin Centre Inc.\u00a0sets out the test for amending a pleading to add a new claim outside a limitation period (making our\u00a0last\u00a0post rather unnecessary).\u00a0 The court will refuse an amendment when it seeks to advance after the expiry of the limitation period a “fundamentally different claim” … Continue reading Ontario: The Court of Appeal on 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":[297,299,300,36,162,298],"class_list":["post-537","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-claim","tag-applications","tag-glitches-in-factual-matrices","tag-pleading","tag-pleadings","tag-procedure"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/537","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=537"}],"version-history":[{"count":3,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/537\/revisions"}],"predecessor-version":[{"id":540,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/537\/revisions\/540"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=537"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=537"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=537"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}