Court of Appeal for Ontario

Date: 2019-12-02 Docket: C66797

Judges: Lauwers, Paciocco and Fairburn JJ.A.

Between

George Niras Plaintiff (Appellant)

and

John Doe and Club Pro Adult Entertainment Inc. Defendants (Respondent)

Counsel

George Niras, acting in person

Philip E. Ghosh, for the respondent Club Pro Adult Entertainment Inc.

Hearing and Release

Heard and released orally: November 25, 2019

On appeal from: the order of Justice Lorne Sossin of the Superior Court of Justice, dated April 5, 2019.

Reasons for Decision

[1] The issue in this case is whether the proposed amended statement of claim asserts a new cause of action after the expiry of the limitation period.

[2] The motion judge was alive to this issue and made legal and factual statements that we find to be accurate. At paras. 11-13 of his reasons he said:

A pleading will be taken to constitute a new cause of action where it is a "fundamentally different claim" based on facts not originally pleaded (1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, at para. 23).

The addition of a tort based on a new duty of care, for example, has been held to be sufficient to constitute a new cause of action for purposes of the presumption of prejudice under Rule 26 (Davis v. East Side Marios Barrie, 2018 ONCA 410).

I am satisfied that the addition of allegations of an intentional tort, and new heads of damages, which extend damages originally claimed against John Doe now to include Club Pro, and quadruple the amount claimed in damages against Club Pro, meet the threshold of a new cause of action for purposes of Rule 26.06.

[3] Discoverability is the core of the issue. The motion judge dealt with it, at para. 21, based on admissions that Mr. Niras made about what he learned in 2015:

Given this admission in the record establishing that Niras was aware of the facts involving the alleged incident involving Joe Doe striking Niras with a gold club in 2015, I do not accept that the applicability of the limitation period to the discovery of these facts is an issue requiring a trial.

[4] As a result, the appeal will be dismissed with two modest exceptions. The first is the proposed amendment to para. 10 of the statement of claim relating to the appellant's "competitive employment advantage", which is permitted. The second is the amendment of the general damages claim in para. 1(a) that increases the amount claimed from $1 million to $2.5 million, which is also permitted. The other amendments will not be permitted.

[5] We fix costs at $8,000 payable by the appellant to the respondent, all inclusive.

P. Lauwers J.A.

David M. Paciocco J.A.

Fairburn J.A.