Special Circumstances Doctrine Is Dead, Ontario Court of Appeal rules

Today’s decision of the Court of Appeal for Ontario in Streamline Foods Ltd. v. Jantz Canada Corporation, 2012 ONCA 174 [“Streamline Foods”] deals with amendment of pleadings after the expiry of a limitation period and confirms that, with the exception of the Solicitors Act, the doctrine of special circumstances has expired.

In Streamline Foods, The appellant moved unsuccessfully to amend its statement of claim by adding its parent corporation as a plaintiff and by adding assertions that it was the parent corporation that was entitled to some of the damages claimed. On appeal, the argument was that the motion judge erred in holding that this was not a case of misnomer and further erred in failing to find that s. 21(1) of the Limitations Act, 2002 did not apply to plaintiffs and that the doctrine of special circumstances continues to permit the addition of plaintiffs based on special circumstances.

The appeal panel (per Simmons, Cronk and Watt JJ.A.) agreed with the motion judge and dismissed the appeal, noting that” in order to advance a claim on behalf of the parent corporation, it was necessary to add the parent corporation as an additional party and also to plead additional material facts to support the parent corporation’s claims.” The Court of Appeal concludes:

[6]               This, in our view, is not misnomer or misdescription. The appellants were not seeking to correct the name of a party; rather, they were seeking to add a party and to pursue that party’s claims.

[7]              On these facts, the special circumstances doctrine, even if it survived the enactment of the Limitations Act, 2002, would not assist the appellants.

[8]               In any event, in our view, Joseph v. Paramount Canada’s Wonderland 2008 ONCA 469 stands for the proposition that the special circumstances doctrine did not survive the enactment of the Limitations Act, 2002, as the appellants seek to argue. A challenge to that determination would require consideration by a five-person panel of this court.

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