Bazkur v. Coore et al., 2012 ONSC 3468

• Judge: Moore, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 12, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONSC 3468;(2012), 292 O.A.C. 391 (DC)

Bazkur v. Coore (2012), 292 O.A.C. 391 (DC)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.026

Maria Bazkur (plaintiff/appellant) v. Anthony Coore and PHH Vehicle Management (defendants/respondents)

(582/11; 2012 ONSC 3468)

Indexed As: Bazkur v. Coore et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Moore, J.

June 13, 2012.

Summary:

The plaintiff was involved in a motor vehicle accident on May 23, 2006. The plaintiff brought an action in a timely fashion for claims arising from her own personal injuries. After the expiry of the limitation period, she applied to plead and pursue derivative, statutory claims arising from her husband's injuries. A Master found that the proposed amendments were statute barred and dismissed the application. The plaintiff appealed.

The Ontario Divisional Court, per Moore, J., allowed the appeal.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - The plaintiff was involved in a motor vehicle accident on May 23, 2006 - The plaintiff brought an action in a timely fashion for claims arising from her own personal injuries - After the expiry of the limitation period, she applied to plead and pursue derivative, statutory claims arising from her husband's injuries - A Master found that the proposed amendments were statute barred and dismissed the application - The plaintiff appealed - The Ontario Divisional Court, per Moore, J., allowed the appeal - The Master erred in focusing too closely upon the need to amend the statement of claim to refer to the facts that the plaintiff's husband was a passenger who was also injured in the plaintiff's vehicle and that her statutory entitlement to additional damages from the defendants in this action was based, in part, upon those injuries - By maintaining a focus upon the original cause of action and the law established by the Court in Cahoon v. Franks (1967 SCC), and the plaintiff's claims against the defendants for damages arising from the accident in question, the Master should have determined that the amendments sought did not raise a new cause of action.

Cases Noticed:

McEvenue v. Robin Hood Multifoods Inc. et al. (1997), 34 O.T.C. 329; 33 O.R.(3d) 315; 10 C.P.C.(4th) 383 (Gen. Div.), refd to. [para. 3, footnote 1].

Joseph v. Paramount Canada's Wonderland (2008), 241 O.A.C. 29; 90 O.R.(3d) 401; 2008 ONCA 469, refd to. [para. 7, footnote 2].

Cahoon v. Franks, 1967 CarswellAlta 48 (S.C.C.), refd to. [para. 8, footnote 3].

Lafrance Estate et al. v. Canada (Attorney General) et al., [2002] O.T.C. 25 (Sup. Ct.), dist. [para. 9, footnote 4].

Ascent Inc. v. Fox 40 International Inc. et al., [2009] O.T.C. Uned. G90; 2009 CarswellOnt 4118 (Sup. Ct. Master), refd to. [para. 13, footnote 5].

Sipthorpe v. Hammill, 1992 CarswellOnt 3860 (Gen. Div.), refd to. [para. 14, footnote 7].

Gladstone et al. v. Canadian National Transportation et al., [2008] O.T.C. Uned. G94; 2008 CarswellOnt 4913 (Sup. Ct. Master), refd to. [para. 14, footnote 7].

MacGregor v. Royal and Sun Alliance Insurance Co. of Canada, [2009] O.T.C. Uned. K63; 2009 CarswellOnt 2026 (Sup. Ct.), refd to. [para. 14, footnote 7].

Dimartino v. RBC Insurance Co. - see Dimartino v. Gacek et al.

Dimartino v. Gacek et al., [2010] O.T.C. Uned. 2124; 2010 CarswellOnt 2138 (Sup. Ct.), refd to. [para. 15, footnote 8].

Counsel:

Diana Romano Reid, for the appellant/plaintiff;

Brett Rideout, for the respondents/defendants.

This appeal was heard on June 12, 2012, by Moore, J., of the Ontario Divisional Court, who delivered the following endorsement on June 13, 2012.