Amendments proposed new cause of action based on new set of facts

PLEADINGS

Amendments proposed new cause of action based on new set of facts

Plaintiffs’ business was destroyed by fire. Plaintiffs claimed they were insured under policy with defendant. Plaintiffs claimed they were not adequately indemnified under insurance policy for losses they sustained. Plaintiffs brought motion for leave to amend statement of claim to add paragraph setting out particulars of negligence, breach of contract and breach of fiduciary duty. Defendant brought cross-motion for summary dismissal of claim based on admissions plaintiffs made during examinations for discovery. Motion dismissed. Cross-motion granted. Claim was dismissed. Amendments proposed new cause of action based on new set of facts and were barred by expiry of limitation period. Claim related to adequacy of limits of coverage placed and all of facts pleaded in support of claim related to failures alleged to have occurred before loss and not after. Proposed amendment would create cause of action in negligence for failing to properly assess plaintiffs’ loss under policy after fire occurred, and not for failing to put in place proper policy of insurance beforehand. Plaintiffs conceded that if plaintiffs’
motion failed, defendant’s cross-motion should succeed.
Lauzon v. Dominion of Canada General Insurance Co. (Mar. 27, 2014, Ont. S.C.J., Ellies J., File No. CV-10-4812) 238 A.C.W.S. (3d) 845.