Burnac Leaseholds Inc. et al. v. Haverty & Rankin Limited Architects [Indexed as: Burnac Leaseholds Inc. v. Haverty & Rankin Ltd. Architects]
67 O.R. (3d) 685
[2002] O.J. No. 4553
Court File No. 132/02
Ontario Superior Court of Justice Divisional Court
Coo J.
October 10, 2002*
*This judgment was recently brought to the attention of the editors.
Civil procedure -- Pleadings -- Amendment -- Plaintiff seeking to amend statement of claim to add new claim after relevant limitation period has passed -- Plaintiff must show special circumstances -- Rules of Civil Procedure, O. Reg. 560/ 84, rule 26.
Where the relevant limitation period has passed and a plaintiff moves to add a new claim, it is not the case that he or she is entitled to the amendment unless it is made out that prejudice would result to the defendant that could not be compensated for by costs or by an adjournment; where the limitation period has passed, the plaintiff must show special circumstances for an amendment.
APPEAL from an order dismissing a motion to amend the statement of claim.
Cases referred to Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, 6 O.A.C. 297, 14 D.L.R. (4th) 81, 47 C.P.C. 285, 30 M.V.R. 227 (C.A.); Madill v. Alexander Consulting Group Ltd. (1999), 1999 ABCA 231, 71 Alta. L.R. (3d) 50, 176 D.L.R. (4th) 309, 41 C.P.C. (4th) 72 (C.A.); Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, 207 D.L.R. (4th) 492, 15 C.P.C. (5th) 235, 152 O.A.C. 201, [2001] O.J. No. 4567 (C.A.); Moore Corp. Ltd. v. Clark (1997), 13 C.P.C. (4th) 332 (Ont. C.A.); Onishenko Estate v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, 24 D.L.R. (3d) 720, [1972] 1 W.W.R. 303; Queen v. Cognos Inc., 1993 146 (SCC), [1993] 1 S.C.R. 87, 99 D.L.R. (4th) 626, 147 N.R. 169, 45 C.C.E.L. 153, 14 C.C.L.T. (2d) 113, 93 CLLC 14,019
Rules and regulations referred to Rules of Civil Procedure, O. Reg. 560/84, rule 30.02(2) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 26.01 [page686]
Ronald E. Carr, for appellants (plaintiffs). Joel Watson, for respondents (defendant).
[1] Endorsement of COO J.: -- This is an appeal from the order dated February 15, 2002 of Master Linton, in which he dismissed the motion of the plaintiffs to further amend their statement of claim to present a claim of negligent misrepresentation, based on two letters written by the defendant on September 28 and November 25, 1987 respectively, to the plaintiff on the subject of a concrete slab introduced as part of the construction of a shopping plaza in the Hamilton, Ontario region. The action is founded on allegations and, I gather, the conceded fact, that the slab was inappropriate and required extensive repair.
[2] A point should be made about how the arguments proceeded on the motion. Certain objections were made by the respondent on the motion to comments in the appellants' material which disclosed and made argumentative reference to arbitration proceedings which were admittedly conducted on an entirely without prejudice basis. These were the subject of a preliminary motion that did not have to be dealt with because both counsel found it possible to deal with the motion in a way which did not have the effect of generating urged reliance on matters that should not be considered.
[3] Counsel require these reasons quickly, and while further time might result in more mellifluous language, I must recognize the practical requirements of the situation.
[4] A number of other defendants were pursued in this and a companion action, but they have dropped by the wayside in light of the fact that they had no assets or were protected by a release. The only "live" defendant is the one against whom it is now sought to broaden the claim.
[5] This action was commenced in November 1988. The statement of claim was amended in May 1991. The defendant's statement of defence was delivered in June 1991.
[6] The defendant's productions in October 1992 included the two letters already referred to, not by reason of any special perceived relevance but because they were documents ". . . relating to any matter in issue . . ." in the action under rule 30.02(2) [Rules of Civil Procedure, O. Reg. 560/84]. The plaintiffs' document brief in 1997 included the same letters.
[7] The statement of claim, as it then stood and as it now stands, relies on alleged misconduct of the defendant in regard to [page687] performance of its professional duties in connection with the construction of the plaza, but there is no reference, however oblique, to any misrepresentation, oral or in writing.
[8] There has never been an examination for discovery of a representative of the defendant, although the action was first set down for trial in December 1995. A trial date in September 1997 was provided. The case was removed from the list so that mediation might be attempted, a step that proved abortive. There was unsuccessful arbitration over many days in 2000 and the action was eventually restored to the trial list in 2001. December 9, 2002 has been fixed as the trial date, peremptory to the plaintiffs, but it would appear likely that the trial will be adjourned.
[9] The motion to amend was launched in December 2001, 13 years after the action was commenced, over 11 years after the statement of claim was amended, and ten years after the letters upon which reliance has now been placed showed up in the defendant's productions, there being no suggestion that the plaintiffs did not have them from 1987, when they were written.
[10] The Master concluded that the relevant limitation period had long since expired and that special circumstances had not been made out. He dismissed the motion further to amend the statement of claim. He made no direct finding on the issue of prejudice, but he did euphemistically make reference to the very long delay involved.
[11] The position of the appellants is that, based particularly on the reasons of Laskin J.A. in Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, 207 D.L.R. (4th) 492 (C.A.), the plaintiffs were, under rule 26.01 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194], entitled to the amendment sought, regardless of a limitation period, unless it was made out that ". . . prejudice would result [to the defendant] that could not be compensated for by costs or an adjournment". Counsel took the position that there was no prejudice established and that certain concessions made in cross-examination of a lawyer who swore an affidavit on the motion on behalf of the defendant, made it clear that there was likely no prejudice and certainly none that ought to be inferred from the admitted very lengthy passage of time.
[12] Counsel for the respondent defendant took the position that special circumstances were required in light of such cases as Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, 24 D.L.R. (3d) 720; Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, 14 D.L.R. (4th) 81 (C.A.); Madill v. Alexander Consulting Group Ltd. (1999), 1999 ABCA 231, 41 C.P.C. (4th) 72, 176 D.L.R. (4th) 309 (Alta. C.A.); Moore Corp. Ltd. v. Clark (1997), 13 C.P.C. (4th) 332 (Ont. C.A.), and even the [page688] reasons of Cronk and Rosenberg JJ.A. in the Mazzuca case itself, together with a number of lower court decisions.
[13] I am driven to agree with the respondent's position on this issue and am particularly comforted by analysis of the reasons of MacKinnon A.C.J.O. in Deaville. Were it to be otherwise, it is at least very strongly arguable that a limitation period would likely play little more than a trivial part in the decision-making process in most of these cases, and that would bring disequilibrium into the process.
[14] Having arrived at that conclusion, I am of the opinion that the Master was entirely justified in making the order he did, for the reasons very shortly given by him. There was no error in principle on his part or failure to take into account anything he ought to have borne in mind, or anything considered by him that he ought not to have taken into account. I am very much inclined to think that I would have independently arrived at the same decision as did he in this case.
[15] I might go on to say that I am of the view that the record strongly supports a conclusion that there would be real prejudice to the respondent-defendant were this proposed new claim to be presented at this time. The mere fact that some of those involved may have a memory of at least some of the important events would not carry me to the conclusion that the defendant, fifteen years after the letters were written, could still cope fairly with responding to the required elements of the claim now sought to be brought before the court and outlined in many cases, including Queen v. Cognos Inc., 1993 146 (SCC), [1993] 1 S.C.R. 87, 99 D.L.R. (4th) 626. That is why there are limitation periods.
[16] This appeal will be dismissed with costs in any event to the defendant. I am prepared to fix them if counsel so desire, through a conference call to be arranged through my assistant, Cindy Elphinstone, who may be reached to set up a date and time at 416-327-5124.
Order accordingly.