



COURT OF APPEAL FOR ONTARIO

CITATION: Niras v. Doe, 2019 ONCA 949

DATE: 20191202

DOCKET: C66797

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

George Niras

Plaintiff (Appellant)

and

John Doe and
Club Pro Adult Entertainment Inc.

Defendants (
Respondent
)

George Niras, acting in person

Philip E. Ghosh, for the respondent
    Club Pro Adult Entertainment Inc.

Heard and released orally: November 25, 2019

On appeal from the order of Justice Lorne Sossin of the Superior
    Court of Justice, dated April 5, 2019.

REASONS FOR DECISION

[1]

The issue in this case is whether the proposed
    amended statement of claim asserts a new cause of action after the expiry of
    the limitation period.

[2]

The motion judge was alive to this issue and
    made legal and factual statements that we find to be accurate. At paras. 11-13
    of his reasons he said:

A pleading will be taken to constitute a new
    cause of action where it is a fundamentally different claim based on facts
    not originally pleaded (
1100997 Ontario Limited v. North Elgin Centre Inc.,
2016 ONCA 848, at para. 23).

The addition of a tort based on a new duty of
    care, for example, has been held to be sufficient to constitute a new cause of
    action for purposes of the presumption of prejudice under Rule 26 (
Davis v.
    East Side Marios Barrie
, 2018 ONCA 410).

I am satisfied
    that the addition of allegations of an intentional tort, and new heads of damages,
    which extend damages originally claimed against John Doe now to include Club
    Pro, and quadruple the amount claimed in damages against Club Pro, meet the
    threshold of a new cause of action for purposes of Rule 26.06.

[3]

Discoverability is the core of the issue. The
    motion judge dealt with it, at para. 21, based on admissions that Mr. Niras
    made about what he learned in 2015:

Given this
    admission in the record establishing that Niras was aware of the facts
    involving the alleged incident involving Joe Doe striking Niras with a gold
    club in 2015, I do not accept that the applicability of the limitation period
    to the discovery of these facts is an issue requiring a trial.

[4]

As a result, the appeal will be dismissed with
    two modest exceptions. The first is the proposed amendment to para. 10 of the
    statement of claim relating to the appellants competitive employment
    advantage, which is permitted. The second is the amendment of the general damages
    claim in para. 1(a) that increases the amount claimed from $1 million to $2.5
    million, which is also permitted. The other amendments will not be permitted.

[5]

We fix costs at $8,000 payable by the appellant
    to the respondent, all inclusive.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

Fairburn
    J.A.


