Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to amend the Statement of Claim to add a statutory cause of action under the Occupiers' Liability Act (OLA) against a defendant already named in a negligence claim.

• Defendant argued the amendment was statute-barred under the Limitations Act as it introduced a new cause of action after the limitation period.

• Court applied Rule 26.01 to determine if the amendment was based on facts substantially pleaded in the original claim.

• Determination hinged on whether the amendment introduced new material facts or simply drew different legal conclusions from existing ones.

• The court found the original pleadings sufficiently outlined facts to support the OLA claim, making the amendment permissible.

• Motion to amend was granted, with conditions allowing the defendant to amend their defence and engage in further discovery if necessary.

Facts and procedural background

John Hudson suffered serious injuries on November 4, 2016, after falling from a deer blind located on a property owned by Wayne and Heather Drain. At the time of the incident, he was participating in a hunting trip organized by Todd Drain, their son, who lived on adjacent land. Todd directed John to use the deer blind, which he had built and maintained on his parents’ property. The plaintiffs initially brought a negligence claim in 2018 against Todd and his parents but did not plead that Todd was an “occupier” under the Occupiers’ Liability Act (OLA).

In 2025, the plaintiffs brought a motion to amend the Statement of Claim to add that Todd was an “occupier” within the meaning of section 1 of the OLA. They argued the existing facts in the original claim already established a basis for this allegation. Todd Drain opposed the motion, claiming that such an amendment would introduce a new cause of action outside the limitation period. He also sought to strike certain affidavit paragraphs submitted in support of the motion.

Legal framework and motion analysis

The court first addressed evidentiary issues, striking portions of the supporting affidavit that lacked proper sourcing or contained argument rather than fact. However, it allowed other portions that were properly sourced, including examination transcripts, to remain.

Turning to the motion to amend, the court relied on Rule 26.01 of the Rules of Civil Procedure, which allows amendments unless they cause non-compensable prejudice. It also examined the Limitations Act, which bars new causes of action raised after two years from discovery unless the facts were already pleaded.

The court thoroughly reviewed relevant authorities and emphasized that a new legal theory, based on the same material facts, does not constitute a new cause of action. It found that all necessary facts regarding Todd Drain’s conduct and control over the premises were already pleaded in the original claim. While the term “occupier” had not been used, the underlying allegations (e.g., constructing the deer blind, directing John Hudson to use it, failing to maintain it) were sufficient to support that legal conclusion.

Decision and outcome

The court concluded that the proposed amendment was not statute-barred because it did not introduce new material facts but rather presented an alternative legal route—namely, liability under the OLA—based on the same factual matrix. It held that Todd Drain’s alleged role was consistent with the definition of “occupier” under the OLA and that the original pleading sufficiently raised the possibility of such a duty of care.

The motion was granted. The plaintiffs were allowed to amend their claim immediately, and Todd Drain was permitted to file an amended Statement of Defence within 20 days. While acknowledging potential scheduling challenges, the court urged the parties to proceed efficiently to preserve the scheduled September 2025 trial date. Costs were left to be resolved between the parties or via written submissions.