Court of Appeal for Ontario
Date: 2018-04-09 Docket: C64342
Judges: Hourigan, Pardu and Huscroft JJ.A.
Between
Lucky Star Developments Inc. Plaintiff (Appellant)
and
ABSA Canada International Defendant (Respondent)
Counsel
Americo Fernandes, for the appellant
Alex Van Kralingen and Mark Repath, for the respondent
Heard: April 5, 2018
On appeal from: the order of Justice Bruce Thomas of the Superior Court of Justice, dated September 8, 2017, with reasons reported at 2017 ONSC 4038.
Reasons for Decision
[1] The appellant appeals from the decision of the motion judge permitting it to file a third fresh as amended statement of claim, but precluding it from referring to five prior shipments or claiming damages in respect of those shipments from the respondent freight forwarder.
[2] The motion judge found that the limitation period had expired in respect of the five prior shipments and that this constituted a prejudice that could not be compensated, thus barring the amendment.
[3] The appellant argues that the motion judge erred:
by failing to consider that the limitations period applies only to pleadings for unrelated statute-barred claims; and
in finding that new claims cannot be added to a claim that has already been commenced.
[4] We do not agree.
[5] The appellant's argument that containers 1-5 were part of the same claim because they involved breach of the same contract must be rejected. The appellant's consent to the order striking this portion of the claim under r. 25.11 without leave to amend, on the basis that facts concerning these containers were irrelevant to its claim, is conclusive against this argument. The appellant's submission that it did not instruct its counsel to consent to the order is irrelevant to this proceeding.
[6] The motion judge found there was no evidence that the parties had agreed to waive the limitation period and no explanation for the appellant having consented to the order, only to attempt to resurrect it over four years later. He properly rejected the argument that special circumstances permitted the addition of a claim to a claim already commenced, citing this court's decision in Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401 holding that the doctrine of special circumstances no longer exists. He made no error in doing so. We note that the appellant's request that this court appoint a five-judge panel to reconsider Joseph was denied.
[7] In oral submissions, the appellant argued that s. 4 of the Limitations Act 2002, S.O. 2002, c. 24, Sched. B does not apply to proceedings that have already been commenced, and so does not bar amendments under r. 26.01. We disagree. As the court noted in Joseph, the rules must be read in light of the Act and its purpose in establishing a basic limitation period in s. 4. Amendments adding claims after the limitation period has expired constitute prejudice.
[8] The appeal is dismissed.
[9] The respondent is entitled to costs of $12,700, inclusive of taxes and disbursements.
"C.W. Hourigan J.A."
"G. Pardu J.A."
"Grant Huscroft J.A."