COURT FILE NO.: 163/07

DATE: 20071205

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, PIERCE AND HACKLAND JJ.

B E T W E E N:

FRANK DEFAZIO, MIKE CRAMAROSSA AND ASSUNTA DEFAZIO

Appellants

(Plaintiffs)

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF LABOUR, TORONTO TRANSIT COMMISSION AND PINCHIN ENVIRONMENTAL CONSULTANTS LTD.

Respondents

(Defendants)

Charles C. Roach and Samuel Willoughby, for the Appellants

Giovanna Asaro, for Her Majesty the Queen in Right of Ontario as represented by the Ministry of Labour

John C. Field and Lauri A. Wall, for the Toronto Transit Commission

David Waterhouse, for Pinchin Environmental Consultants Ltd.

HEARD at Toronto: December 5, 2007

CARNWATH J.: (Orally)

1On the issue of the election to which the Appellants were put, the following are our reasons for finding that the Class Proceedings judge made no error.

2The Appellants submit Hoy J., (hereinafter referred to in these reasons as the “Judge”) erred in striking out the Appellants’ Amended Amended Statement of Claim. Indeed, they submit the Judge denied them the opportunity to amend their pleadings to recast their case to take advantage of concerns of defence counsel. To say the least, this submission is slightly disingenuous.

3It is instructive to review the history of events leading up to the point where the Judge put the Appellants to their election – to abandon the Amended Amended Statement of Claim or prcoeed with it after submissions on costs thrown away.

4At the conclusion of the Certification Hearing, the Appellants sought leave to further amend the already Amended Statement of Claim. They handed up a document which redefined the class, pleaded a breach of fiduciary duty and particulars of alleged negligence and misrepresentation by Pinchin. They had not prepared an Amended Amended Statement of Claim. The judge granted leave to bring a motion for leave to amend.

5Counsel for the Appellants stated he did not wish to proceed with a motion to amend. The judge stood the case down to give Appellant’s counsel a chance to seek instructions and reconsider. Counsel confirmed to the judge he did not wish to seek to amend, citing, among other things, costs considerations.

6Following the Certification Hearing, and before she released her decision on the motion to certify, the judge wrote Appellants’ counsel asking if he intended to amend the Amended Statement of Claim, pursuant to Rule 26.02. No defence having been filed, the rule permits amending a Statement of Claim without leave. Appellants’ counsel replied they would serve and file an Amended Amended Statement of Claim. The Toronto Transportation Commission submitted they were not entitled to do so, and a motion was scheduled. Nevertheless the Appellants filed an Amended Amended Statement of Claim before the hearing of the motion.

7The judge found the changes in the proposed amendment went beyond those set out in the document handed up at the end of the certification hearing. Added to the mix were allegations of breach of contract, strict liability and breach of duty to warn.

8The judge considered Rule 26.02 which provides that a party may amend the party’s pleadings before the close of pleadings, i.e. before a defence is filed without leave. She also considered sections 12 and 35 of the Class Proceedings Act. Section 12 provides:

The Court on the motion of a party or class member may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and for the purpose may impose such terms on the parties as it considers appropriate.

9She noted that in the submissions of the Appellants they made it clear that they would prefer to have certification based on their original pleading rather than face a costs order.

10Following submissions, the judge concluded she could invoke s.12 of the Class Proceedings Act, to require a hearing on whether and on what terms an Amended Amended Statement of Claim would be permitted. She felt it necessary to impose terms on the proceeding “to ensure its fair and expeditious determination” and for the purpose she imposed terms on the Appellants. Having regard to the time at and the manner in which the Appellants effected the proposed amendment, and the history of the proceeding, she found it would be unfair to require the defendants to respond to the proposed amendment without being compensated for costs thrown away.

11She gave the Appellants a choice: abandon the proposed amendment or proceed on the basis of the proposed amendment after submissions on costs thrown away. The Appellants chose to abandon and the judge struck it out.

12In our opinion the judge was correct in law in her analysis of the application of s.12 of the Class Proceedings Act. Her use of it underscores its importance in class proceedings, where, as here, one party seeks to take what the judge found to be an unfair advantage of another. Indeed, the Appellants conceded the amendments were prepared to address deficiencies in their case highlighted by the Respondents and the judge’s concerns during the hearing.

13In applying the discretion granted by s.12, the judge made no error. Indeed, in our view, she had no alternative. Had she not done so the Respondents would have been foreclosed from making submissions on certification in response to the new issues raised by the Amended Amended Statement of Claim.

14We reject the submission that s.12 applies only after certification. If refers both to a party and a class member. The reference to a party clearly contemplates that the motion applies at any time during class proceeding matters. This can only mean that s.12 applies throughout, not just after certification.

CARNWATH J.

PIERCE J.

HACKLAND J.

Date of Reasons for Judgment: December 5, 2007

Date of Release: December 10, 2007

COURT FILE NO.: 163/07

DATE: 20071205

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, PIERCE AND HACKLAND JJ.

B E T W E E N:

FRANK DEFAZIO, MIKE CRAMAROSSA AND ASSUNTA DEFAZIO

Appellants

(Plaintiffs)

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF LABOUR, TORONTO TRANSIT COMMISSION AND PINCHIN ENVIRONMENTAL CONSULTANTS LTD.

Respondents

(Defendants)