Ontario: amending a pleaded date of discovery (you can do it)

Here’s a novel limitations issue.  A plaintiff intends to plead that he discovered his claim within the limitation period, but inadvertently pleads that he discovered it on an earlier date so that the claim is statute-barred.  Is the plaintiff entitled to amend the Statement of Claim to plead the correct date, assuming there’s no noncompensable prejudice to the defendant, or is he in effect amending to add a statute-barred claim?

Master Pope held in Islam v. Tadin that it’s just a regular amendment, and the defendant who doesn’t consent to it wrongly seeks advantage from another lawyer’s slip (i.e., a jerk).

The plaintiff’s Statement of Claim in Islam pleaded that he discovered his claim against the defendants in June 2011.  This meant that the limitation period expired in June 2013 and before he issued the Statement of Claim.

The defendants’ pleaded a limitations defence.  Immediately after service of the Statement of Defence, the plaintiff advised defence counsel that the date of discovery pleaded in the Statement of Claim was a factual error.  The plaintiff served a proposed amended Statement of Claim, but the defendants refused their consent to the amendment.

The defendants’ position was that the plaintiff wasn’t entitled to amend his pleading to bring the claim within the limitation period.  Just as the expiry of a limitation period gives rise to a presumption of prejudice, an amendment that makes a statute-barred claim timely gives rise to the same presumption of prejudice.  The expiry of the presumptive limitation period in section 5(2) of the Limitations Act gave rise to a further presumption of prejudice.

If there was any logic to these arguments, it’s hard to tell from the decision.  One senses that Master Pope wasn’t impressed with them, noting with what I imagine was some irritation that “a great deal of material was filed and time spent on the defendants’ submissions”.  In any event, Master Pope rejected them.

The plaintiff was not seeking to add claim beyond the limitation period, or even a claim at all.   The issue of the expired limitation period arose when the plaintiff served the Statement of Claim, not because of the proposed amendments.  The amendment did not engage section 5(2) at all.  The presumptive limitation period wasn’t at issue, but when the plaintiff pleaded he had subjectively discovered the claim.

Master Pope also took note of the circumstances of the motion. Plaintiff’s counsel immediately sought consent for the amendment.  The plaintiff filed an uncontested affidavit stating that the date of discovery pleaded in the Statement of Claim was unintentional and incorrect.  In her view, the motion “was unnecessary given the mandatory wording of rule 26.01 and the fact that there was no case law to support the defendants’ position.  She awarded substantial indemnity costs against the defendant.