Davis v. East Side Mario’s Barrie, 2018 ONCA 410 (CanLII)

Added Pleas Constitute a New Cause of Action and are Limitation-Barred  

Date Heard: April 10, 2018 | Full Decision [PDF]

The Court of Appeal considered whether an allegation of an alternative theory of liability added to the Statement of Claim post-limitation period constituted a new cause of action.

The original Statement of Claim pleaded general negligence, breach of duty, breach of contract, and breach of the Occupiers’ Liability Act as against the Defendant. The Plaintiff had fallen down a flight of stairs. The original Statement of Claim focused on the staircase and its condition.

The Amended Statement of Claim alleged that the Defendant had failed to advise the Plaintiff of the availability of a main floor bathroom. It also pleaded that the Defendant had failed to supply adequate service to the Plaintiff, pursuant to its obligations under the Consumer Protection Act (“the CPA”).

The original Statement of Claim made no mention of the CPA or any failure of the Defendant to advise the Plaintiff of the availability of a main floor washroom.

The Court of Appeal held the new theory of liability under the CPA constituted a new cause of action and that the amendments were limitation-barred. It found that the Amended Statement of Claim did not merely provide particulars of the cause of action previously pleaded but rather was a fundamentally different claim based on facts not originally pleaded.


Read the full decision [PDF]
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.