What is the test for a pleading to be amended after the limitation period has expired?

Ontario, Canada


The following excerpt is from Virji v. Kotton., 2020 ONSC 5509 (CanLII):

As Perell J. stated in Kaynes v. BP, PLC, 2019 ONSC 6464, at para 87, where a pleading is sought to be amended after the limitation period has expired, the key to the analysis is “whether substantially all of the material facts of the tendered cause of action have already been pleaded, in which case, the amendment will be allowed, or whether new material facts are sought to be added to support the cause of action, in which case, the amendment will not be allowed or if already pleaded, it will be struck.” The present pleading meets the test of the material facts of fraud and conspiracy having already been pleaded, but just barely.

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