Davis v. East Side Mario's Barrie

Davis v. East Side Mario's Barrie

The amended statement of claim pleaded a distinct duty to advise of the location and availability of a main floor accessible family washroom and relied on the CPA as well as the OLA, which constituted a new cause of action based on facts not originally pleaded; because that new cause of action was raised for the first time well beyond the two year limitation period it was statute-barred, so dismissal by summary judgment was justified though the Second Motion Judge erred in his characterization.

Citation
2018 ONCA 410
Parties
Plaintiffs (appellants): Katherine Irene Davis, Gregg James Davis and Paige Davis (minor) by Litigation Guardian Katherine Irene Davis; Defendant (respondent): East Side Mario’s Barrie
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
1 May 2018
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Second Summary Judgment Motion
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Amendment of Pleadings, Cause of Action, Limitation Period, Duty to Advise, Interplay Between CPA and OLA
Source Language
English
Occupiers' Liability Negligence Consumer Protection Civil Procedure Limitations Law Summary Judgment Amendment of Pleadings Cause of Action +3 more

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Parties

Katherine Irene Davis, Gregg James Davis and Paige Davis (minor) by Litigation Guardian Katherine Irene Davis

Plaintiffs (appellants)

East Side Mario’s Barrie

Defendant (respondent)

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Second Summary Judgment Motion

Legal Issues

  1. 1 Whether the amended statement of claim pleaded a new cause of action or was merely particulars/reframing of the original claim
  2. 2 Whether the Second Motion Judge erred by deciding merits beyond agreed limitation issue
  3. 3 Whether the amended claim was statute-barred under the Limitations Act, 2002

Ratio Decidendi

The amended statement of claim pleaded a distinct duty to advise of the location and availability of a main floor accessible family washroom and relied on the CPA as well as the OLA, which constituted a new cause of action based on facts not originally pleaded; because that new cause of action was raised for the first time well beyond the two year limitation period it was statute-barred, so dismissal by summary judgment was justified though the Second Motion Judge erred in his characterization.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to the respondent fixed at $10,000 inclusive of disbursements and applicable taxes