The Supreme Court of Nova Scotia has conditionally allowed the developers of Halifax’s Roy Building to add fiduciary-duty claims against construction manager EllisDon, finding that a statutory exception permits the new claims despite an expired limitation period.
In Omega Formwork Inc. v. 778938 Ontario Limited, 2026 NSSC 316, dated October 15, 2026, Associate Chief Justice Darlene A. Jamieson required the developers to supply missing facts in their proposed pleadings before the amendments could proceed.
The ruling concerns what allegations may be advanced in ongoing litigation. It does not find that EllisDon breached a fiduciary duty or award the $20 million sought by 778938 Ontario Limited, operating as Starfish Properties, and The Roy Building Limited.
Two construction lawsuits, one proposed expansion
The dispute involves the construction of the Roy Building residential condominium project. Omega Formwork began an action against the developers in October 2019 over alleged delays and additional work. The developers counterclaimed over alleged deficiencies, cost overruns and lost revenue, then brought a third-party claim against EllisDon in January 2020.
The developers separately sued EllisDon in Ontario in May 2020 over alleged delay and mismanagement. After the Ontario Court of Appeal temporarily stayed that proceeding in March 2023, they commenced their Nova Scotia action against EllisDon that August. The two Nova Scotia proceedings were consolidated in September 2023.
EllisDon denied breach of contract and advanced its own counterclaim for economic losses, including lost revenue, lost profit and extended project-duration and management costs. Omega took no position on the amendment motion.
The proposed amendments relied on a construction-management contract provision authorizing EllisDon to act as the owner’s agent for specified services. The developers sought to add alleged breaches of duties to act in their best interests, avoid conflicts of interest and disclose relevant information affecting their interests or decisions.
They said April 2026 discovery evidence prompted the request. According to their submissions, a former senior EllisDon executive described a strategy of aligning with trade contractors to advance delay claims against the developers while removing allegations of EllisDon’s own mismanagement. EllisDon strongly denied that the testimony revealed wrongdoing. The motion did not resolve that factual dispute.
Contract allegations needed more precision
The court applied Nova Scotia’s generally liberal approach to pleading amendments: an amendment must be offered in good faith, raise a legally sustainable issue and cause no serious prejudice that cannot be compensated through costs. At this stage, the judge assumes the pleaded facts rather than deciding contested evidence or predicting the trial result. EllisDon did not allege bad faith.
Jamieson accepted that the proposed statement of claim sufficiently identified an alleged agency relationship and the fiduciary duties said to arise from it. But an agency relationship does not turn every alleged contractual failure into a breach of fiduciary duty. The nature and scope of those duties depend on the contractual relationship and its circumstances.
The developers had broadly linked their fiduciary allegations to an existing list of contractual defaults. Their lawyer acknowledged at the hearing that some listed conduct would amount only to breach of contract. The judge agreed EllisDon should not have to guess which alleged act or omission breached which fiduciary duty.
Read generously, the disclosure claim was sufficiently supported to survive the pleading-stage test. The existing allegations included a failure to provide records substantiating responses to trade contractors’ claims, allegedly compromising the owners’ ability to respond effectively.
The judge explained that a fiduciary’s duty to disclose material information can exist independently of a conflict of interest. In that setting, the developers did not have to plead that EllisDon put its own interests ahead of theirs to make the disclosure claim sustainable. The broad best-interests claim also survived the threshold review, although its particulars needed greater clarity.
The conflict-of-interest allegation was different. The proposed pleading omitted the material fact on which the developers relied: their allegation that EllisDon aligned itself with the trades against its principal. That missing fact needed to be pleaded. The proposed third-party pleading also lacked sufficient facts explaining how the duties were breached and the remedy sought.
Rather than require a new amendment motion, Jamieson allowed an opportunity to correct those deficiencies. She concluded that sustainable claims were available if the missing material facts were added.
Why the expired limitation period did not bar the claims
The developers argued they were merely clarifying their existing contractual case. The judge rejected that position: breach of fiduciary duty is a separate cause of action, and pleading the contract had not supplied all the material facts needed for that claim.
The developers also failed to establish that the new claims were brought within the two-year, discovery-based limitation period. Jamieson concluded that the period had expired. The developers did not argue that the claims first became discoverable during the April 2026 examinations. The judge reasoned that their position that the amendments merely added particulars implicitly acknowledged they knew or ought to have known of the claims when they began the proceedings.
Civil Procedure Rule 83.11(3) did not help them. It permits certain amendments after a limitation period where the supporting material facts are already pleaded and the amendment merely identifies or better describes the cause of action. Here, the proposed amendments added new material facts.
Section 22(a) of Nova Scotia’s Limitation of Actions Act provided a broader route. It permits a related claim to be added after expiry where it concerns conduct, transactions or events described in the original pleadings, is between existing parties and does not change the capacity in which either party sues or is sued.
Those conditions were met. EllisDon’s performance as construction manager was already at issue through the pleaded contract and negligence claims. The proposed fiduciary claims concerned that same performance and did not alter the parties’ procedural capacities.
Permission came with strict conditions
EllisDon also argued that the litigation’s complexity and advanced stage would cause serious prejudice. Jamieson found that any additional procedural work could be addressed through costs. The schedule already contemplated further discovery and expert evidence, and trial remained more than a year away. Requiring the missing particulars would address the other asserted prejudice.
The developers were required to provide EllisDon with further proposed amendments, attached to draft orders for consent as to form, within five calendar days of the decision. They had eight calendar days to provide the court with the orders and amended pleadings. Any resulting issue was to be brought back for an immediate appearance.
No costs amount was fixed. If the parties could not agree, the judge invited written submissions of no more than five pages within 30 days of the decision. Liability, the truth of the disputed allegations and any damages remain unresolved by this ruling.
