The Superior Court of Justice’s decision in CJSC “Sanokr-Moskva” v Tradeoil Management Inc., 2013 ONSC 7487confirms that leave to amend a statement of claim under Rules 5.06 and 26.01 of the Rules of Civil Procedure to allege a new cause of action will be refused when the applicable limitation period has expired. Although this case doesn’t address any new issues, it is a good reiteration of what constitutes a “cause of action” for the purposes of determining whether a limitation period has expired.
The plaintiff sought to amend its statement of claim in two actions, one that arose in 1997 and the other in 1998. In determining what constituted a “new cause of action”, the Court relied on Ascent Inc. v Fox 40 International Inc., O.J. No. 2964 (S.C.J. – Master Dash), where it was stated:
A “cause of action” has been defined as a “factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” The key is whether substantially all of the material facts giving rise to the “new cause of action” have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action. A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising 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.
The Court held that the proposed amendments to the 1997 claim were permissible, as the amendments did not constitute a new cause of action being advanced after the expiry of the relevant limitation period. Rather, the proposed amendments simply provided particulars of allegations already pled, or additional facts upon which the original right of action was based.
However, in respect of the 1998 claim, the Court refused to grant relief. The 1998 action concerned a mortgage that the plaintiff had registered against title to the home of the defendant, caused by a certificate of pending litigation. However, in seeking to amend the statement of claim, the plaintiff alleged that the defendant and mortgagee engaged in fraud and conspired to defeat the claims of the plaintiff, and perhaps other creditors, by registering a phony mortgage on title. The Court found that the existing statement of claim contained no hints of any such allegations, and as a result, the limitation period for the claim the plaintiff now sought to advance in the 1998 action, was expired.