Legal Blog

Amend Pleadings

Since we are on a limitations theme, we felt that we should briefly discuss the interplay between Rule 26.01 regarding the amendment of pleadings and the Limitations Act. Rule 26.01 states that if a party requests to amend its pleadings, the court shall allow that request unless there is prejudice to the opposing party that cannot be compensated by an adjournment or costs. What happens when an amendment results in a new cause of action? Normally nothing. What happens when a new cause of action is being requested after the limitation period has expired? Does the mandatory nature of Rule 26.01 take precedence over the Limitations Act? This was the subject of the dispute in Frohlick v. Pinkerton Canada Ltd. [2008] O.J. No. 17 (C.A.)

The plaintiff originally sued for a 2001 constructive wrongful dismissal. In 2006, the plaintiff moved for leave to amend the statement of claim to claim for a wrongful salary reduction imposed in 1999. The court held that the claim for the recovery of lost salary was clearly beyond the 6-year limitation period of the old Act. Accordingly, were it not for the existing action, the plaintiff would have been unsuccessful if it had commenced an action to claim the lost salary.

The court held that the expiry of a limitation period results in a presumption of prejudice that cannot be compensated by costs or an adjournment. However, the presumption is not determinative and the moving party may still demonstrate special circumstances (here we go again) that would lead a court to conclude that the presumption should not apply.

In Frohlick itself, the court determined that there were no special circumstances and refused the request for leave to amend.