Allison Thornton

The defendant and plaintiff by counterclaim brought a motion for leave to amend its statement of defence and counterclaim to increase its damages claim from $1 million to $7 million.

The plaintiff opposed the amendments, arguing they constituted a new cause of action and were statute-barred, and that the delay in seeking the amendments caused prejudice.

The court granted leave to amend, finding that the proposed amendments merely particularized damages arising from a breach of contract that was already pleaded, and therefore did not constitute a new cause of action.

The court also found that any prejudice from the delay could be compensated for by costs or an adjournment, and ordered a further examination for discovery limited to the amendments.

The defendant brought a motion for summary judgment seeking dismissal of a breach of contract action on the basis that the claim was statute‑barred under the Limitations Act, 2002.

The dispute centred on discoverability and when a reasonable person in the plaintiff’s circumstances ought to have known that a loss had occurred and that a proceeding would be an appropriate remedy.

The court applied the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v Flesch concerning the “full appreciation” test for summary judgment under Rule 20.04(2.1) of the Rules of Civil Procedure.

Given the voluminous record and conflicting evidence regarding the parties’ knowledge and accounting expertise, the court held that multiple credibility findings would be required.

The interest of justice therefore required that the matter proceed to trial.