Rausch v. Pickering (City), 2013 ONCA 740 (adding a claim after expiration of limitation period)

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In Rausch v Pickering (City), 2013 ONCA 740, the Ontario Court of Appeal held that a claim may be added after the 2-year limitation period has expired, so long as the claim flows from facts already pleaded. 

In Rausch,the City of Pickering had shut down the respondent’s boar farming business pursuant to a municipal by-law that restricted the keeping of certain animals. In 2007, the respondent sued the City for damages on the basis of trespass, abuse of process and malicious prosecution. Four years later, the respondent sought leave to add a claim in negligence alleging that the City breached section 6 of the Farming and Food Production Protection Act, 1998, (“FFPPA”), which prevents a municipal by-law from restricting a normal farm practice that is part of an agricultural operation. The Master granted the order, finding that the negligence claim arose out of facts already pleaded in the statement of claim. The City subsequently moved to strike the respondent’s pleadings pursuant to Rule 21 of theRules of Civil Procedure. The Motions Judge dismissed the motion, and the Divisional Court upheld the decision. The City appealed.

One of the issues considered by the Ontario Court of Appeal was whether the respondent’s negligence claim was statute-barred given that it was added four years after the filing of the original suit. The Court of Appeal found that it was not, as no new cause of action was pled. Epstein J.A., for the majority, held that the respondent’s claim advanced an alternative theory of liability based on the same facts, and not a new cause of action. Epstein J.A. allowed the amendments, stating at para. 102:

“[R]elying on a common law duty as opposed to a statutory one is merely relying on a different legal path to reach the same conclusion. Moreover, Mr. Rausch’s pleadings already allege the material facts necessary to support such a claim. Thus, in relying on a common law duty of care, Mr. Rausch asserts an alternative theory of liability flowing from the facts as pleaded. His claim is therefore not barred by the limitations period.”