Frohlick v. Pinkerton Can. Ltd.,

• Jurisdiction: Ontario
• Judge: Weiler, Sharpe and Rouleau, JJ.A.
• Neutral Citation: 2008 ONCA 3
• Citation: (2008), 232 O.A.C. 146 (CA),2008 ONCA 3,88 OR (3d) 401,289 DLR (4th) 639,[2008] CarswellOnt 66,[2008] OJ No 17 (QL),163 ACWS (3d) 371,232 OAC 146,49 CPC (6th) 209,62 CCEL (3d) 161,(2008), 232 OAC 146 (CA),88 O.R. (3d) 401,[2008] O.J. No 17 (QL),289 D.L.R. (4th) 639,232 O.A.C. 146
• Date: 07 September 2007
• Court: Court of Appeal (Ontario)

Frohlick v. Pinkerton Can. Ltd. (2008), 232 O.A.C. 146 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.042

Melanie Frohlick , Judy Ann Lawlor, Stephane Thomas and Dominic Flaminio (plaintiffs/appellant) v. Pinkerton Canada Limited and Securicor Canada Ltd. (defendants/respondent)

(C46348; 2008 ONCA 3)

Indexed As: Frohlick et al. v. Pinkerton Canada Ltd. et al.

Ontario Court of Appeal

Weiler, Sharpe and Rouleau, JJ.A.

January 8, 2008.

Summary:

Frohlick was an employee of Pinkerton Canada Ltd. In 2001, Pinkerton transferred the business for which Frohlick worked to Securicor Canada Ltd. In 2003, Frohlick and others brought a wrongful dismissal action regarding the 2001 transfer. In 2006, Frohlick obtained new counsel and sought to amend her claim under rule 26.01.

The Ontario Superior Court denied the motion. Frohlick appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - Frohlick was an employee of Pinkerton Canada Ltd. - In 1999, her rate of pay was reduced significantly - In 2001, Pinkerton transferred the business for which Frohlick worked to Securicor Canada Ltd. - In 2003, Frohlick and others brought a wrongful dismissal action regarding the 2001 transfer - In 2006, Frohlick obtained new counsel and sought to amend her claim under rule 26.01 to refer to the significant salary reduction in 1999, alleging that this constituted constructive dismissal - The motions judge denied the motion on the basis that the amendment advanced a new cause of action that was statute-barred - Frohlick appealed - The Ontario Court of Appeal dismissed the appeal - The proper interpretation of rule 26.01 was that the expiry of a limitation period gave rise to a presumption of prejudice that was determinative unless the party seeking the amendment could show the existence of special circumstances that rebutted the presumption - Here, there were no such special circumstances - Nothing indicated that Pinkerton was made aware of the new allegations or of Frohlick's concerns prior to Frohlick's motion - Nor had it been suggested that the events were put in issue or encompassed within the original claim - See paragraphs 10 to 33.

Cases Noticed:

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 18].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 19].

Deaville v. Boegeman (1984), 6 O.A.C. 297; 48 O.R.(2d) 725 (C.A.), refd to. [para. 21].

Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 152 O.A.C. 201 (C.A.), refd to. [para. 27].

Mota v. Hamilton-Wentworth (Regional Municipality) et al. (2003), 170 O.A.C. 28; 63 O.R.(3d) 737 (C.A.), refd to. [para. 27].

Zapfe v. Barnes et al. (2003), 174 O.A.C. 211; 66 O.R.(3d) 397 (C.A.), refd to. [para. 32].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 26.01 [para. 11].

Counsel:

Peter J. Doucet, for the appellant;

Robert T. Leung Yu, for the respondent.

This appeal was heard on September 7, 2007, by Weiler, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., delivered the following judgment for the court on January 8, 2008.