Category: Pleading Amendment

Malik v. Nikbakht, 2021 ONCA 176

The plaintiff, his wife, and their three children were injured in a motor vehicle accident. They all commenced litigation. The plaintiff was driving at the time of the accident, so he had different counsel than his wife and children. The plaintiff initially claimed for only his own injuries/damages. The wife and children claimed for their own injuries and also for damages pursuant to the Family Law Act (FLA). Four years after the accident, the plaintiff brought a motion to amend his claim to include FLA damages. Master Wiebe granted the motion and allowed the amendment. On the defendant’s appeal to a judge of the Superior Court, Justice Cavanagh allowed the appeal and dismissed the underlying motion to amend. Justice Cavanagh’s decision was upheld by the Ontario Court of Appeal. Justice Paciocco, writing for the Court, reasoned that the FLA claim was not merely a claim for additional damages arising from the existing negligence claim and that it was advanced more than two years after the expiry of the applicable limitation period.

Lightfoot v. Hodgins et al., 2021 ONSC 1950

This action arises from a motor vehicle accident. The statement of claim was issued in September 2016 and sought damages in the sum of $750,000.00. In February 2021 the plaintiff brought a motion seeking for the trial to proceed under Rule 76 Simplified Procedure, and to strike the jury. The plaintiff argued that his injuries had stabilized, which warranted reduction of the claimed damages. The defendant argued that the amendment would result in non-compensable prejudice because it would result in the defendant losing its right to have the trial heard by a jury. Justice Muszynski granted the relief sought, finding that it was in the interest of justice and the principles of proportionality to allow the matter to proceed under Rule 76.

Scace v. Withers et al., 2020 ONSC 90

The plaintiff homeowner brought a subrogated claim against renovators working on his neighbour’s home, who caused structural damage to the plaintiff’s property. The plaintiff brought a motion to amend the statement of claim to substitute a ‘John Doe’ contractor with the correct contractor name. The motion was brought more than two years after the loss had occurred. The defendant argued that the plaintiff knew the identity of the actual contractor within the limitation period (email correspondence shows that he must have), and if the plaintiff actually intended on bringing a claim against the defendant within the limitation period, he would have done so. Master Sugunasiri granted the plaintiff’s motion. She held that the threshold for the misnomer test was met and that a fair reading of the claim demonstrated that the plaintiff intended to sue the actual contractor for negligent construction. She was not persuaded that the plaintiff’s previous knowledge of the contractor’s identity negated that intention.