John J. Cardill

Following the dismissal of the plaintiff's motion to amend her pleadings at the outset of trial, the defendants sought costs of the motion and costs thrown away for trial preparation.

The court awarded the defendants costs of the motion on a partial indemnity basis, fixed at $7,500 inclusive of HST and disbursements, payable in any event of the cause and offset against any award payable to the plaintiff after trial.

The issue of costs thrown away was left to the trial judge.

On the first day of trial, the plaintiff sought to amend her Statement of Claim to advance a $240,000 claim for damages.

The proceeding was originally commenced as an application under the Solicitors Act to assess a solicitor's bill, which was later ordered to be treated as an action.

The court held that an order under Rule 38.10 does not retroactively convert an application into an action for all purposes, and the proposed amendment constituted a new cause of action for damages.

Because the plaintiff knew of the potential claim years prior, the amendment was statute-barred under the Limitations Act and the motion was dismissed.