U & R Tax Services Ltd. v. H & R Block Canada Inc.
T-891-89
Walsh D.J.
8/3/93
13 pp.
Appeal to set aside order of Associate Senior Prothonotary and for order permitting plaintiff to amend statement of claim-Plaintiff and defendant both engaged in assisting taxpayers in completing Income Tax returns-Motion for leave to amend well beyond three-year limitation period under Copyright Act, s. 41 as first copyright infringement allegedly taking place in Winnipeg on or about November 23-30, 1988-Defendant admitting having taught Basic Tax Courses in Winnipeg and throughout Canada between September and late November 1988 and having used plaintiff's copyrighted tax form-Plaintiff relying on admission to seek amendment of statement of claim and to claim damages for conversion-Defendant contending plaintiff trying to add claims after expiry of three year limitation period-Whether new cause of action added and whether Rules of Court applicable to excuse delay-Case law reviewed-Facts giving rise to cause of action known all along to defendant-Changes sought merely to plead with more precision various items comprising quantum of damages being sought-Expiry of limitation period not absolute defence-Plaintiff not seeking to introduce new cause of action-Defendant not taken by surprise or prejudiced in defending against it on facts-Appeal allowed, leave to amend statement of claim granted-Copyright Act, R.S.C., 1985, c. C-42, s. 41.