Précis: The Federal Court of Appeal refused to strike a claim against a port authority for abuse of public office as being made out of time when it was a continuation of an earlier action and filed with leave of the court.
Facts: The plaintiff previously commenced proceedings against the defendant Port Authority for the tort of abuse of public office. The statement of claim in that action was ultimately ordered to be struck by the Federal Court of Appeal in a decision rendered on 10 June 2011 (reported at 2011 FCA 198). In that decision the Court of Appeal expressly gave the plaintiff leave to file a fresh statement of claim properly pleading the facts and elements of the tort. However, instead of filing a fresh statement of claim, the plaintiff commenced this entirely new action. The defendant brought this motion to strike the new statement of claim on the grounds that it was commenced out of time. The motion was dismissed by the Prothonotary and an appeal from that order was later dismissed by an appeal Judge (reported at 2012 FC 592). The defendant filed a further appeal to the Federal Court of Appeal.
Decision: Appeal dismissed.
Held: It would be inappropriate to strike a statement of claim that has been filed with the leave of this Court. It is not plain and obvious the action cannot succeed since the new action appeared to be a continuation of the earlier action that had been filed in time.