



COURT OF APPEAL FOR ONTARIO

CITATION: Lucky Star Developments Inc. v. ABSA
    Canada International, 2018 ONCA 346

DATE: 20180409

DOCKET: C64342

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Lucky Star Developments Inc.

Plaintiff (Appellant)

and

ABSA Canada International

Defendant (Respondent)

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:

1.

by failing to
    consider that the limitations period applies only to pleadings for unrelated
    statute-barred claims; and

2.

in
finding that new claims cannot be added to a claim that has already
    been commenced.

[4]

We do not agree.

[5]

The appellants argument that containers 1-5
    were part of the same claim because they involved breach of the same contract
    must be rejected. The appellants 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 appellants 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 courts decision in
Joseph v. Paramount Canadas 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 appellants 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.


