Harry J. Dahme

The appellant, owner of a commercial property in Windsor, Ontario, sought leave to amend its statement of claim in a second action to add a claim for breach of statutory duty under the Environmental Protection Act.

The motion judge refused the amendment on the grounds that it was statute-barred under the Limitations Act, 2002 and constituted an abuse of process.

The Court of Appeal upheld the decision, finding that the claim was clearly statute-barred and that the proposed amendment would constitute an entirely new cause of action against different parties.

The court noted that the appellant had the option to amend its statement of claim in the first action instead.

The appeal was dismissed, and costs were fixed at $30,000 inclusive.

Strathan Corporation sought leave to amend its statement of claim in a second action (Second Strathan Action) to include a new claim for breach of statutory duty causing environmental contamination under the Environmental Protection Act.

The defendants opposed, arguing the proposed amendments were statute-barred by the Limitations Act, 2002, untenable at law, and an abuse of process given a prior action (First Strathan Action) already addressing environmental contamination.

The court dismissed Strathan's motion, finding the new claim was a distinct cause of action, statute-barred by the two-year limitation period (as Strathan knew of the environmental claim since 2009 when it commenced the First Strathan Action), and constituted an abuse of process by attempting to graft a duplicative claim onto a separate action.

The court also rejected the argument that the Real Property Limitations Act applied.