Bazkur v. Coore et al., 2012 ONSC 3468
CITATION: Bazkur v. Coore et al., 2012 ONSC 3468
DIVISIONAL COURT FILE NO.: 582/11
DATE: 2012/06/13
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Maria Bazkur,
Plaintiff
(Appellant)
- and -
ANTHONY COORE AND PHH VEHICLE MANAGEMENT
Defendants
(Respondents)
BEFORE: Justice Moore
COUNSEL: Diana Romano Reid, for the Appellant (Plaintiff)
Brett Rideout, for the Respondents (Defendants)
HEARD: 12 June 2012
E N D O R S E M E N T
Moore J.
[1] This is an appeal from the decision of Master B. McAfee who dismissed the appellant's application to amend the statement of claim to include claims arising from the Family Law Act. These claims arise from a motor vehicle accident that occurred on 23 May 2006 when the plaintiff and her husband were occupants of a vehicle struck by one owned and operated by the defendants.
[2] The appellant brought her action in a timely fashion for claims arising from her own personal injuries. After the expiry of the limitation period, she applied to the Learned Master to plead and pursue derivative, statutory claims arising from her husband's injuries.
[3] Master McAfee heard the motion on September 27, 2011 and determined the issue in her endorsement dated November 17, 2011 in which she stated, inter alia:
In my view, the proposed amendment is a separate distinct and new cause of action pursuant to the Family Law Act. It is not simply an alternative claim for relief or a different legal conclusion based on facts already pleaded.
The material facts that the plaintiff now seeks to add in support of the cause of action are as follows:
That the plaintiff’s spouse was a passenger in the vehicle (para. 2 of the proposed amended statement of claim);
That the plaintiff's spouse sustained injuries as a result of the motor vehicle accident (para. 6a of the proposed amended statement of claim).[^1]
These material facts must be pleaded to support the cause of action of the plaintiff pursuant to the Family Law Act.
[4] Master McAfee found that the proposed amendments are statute barred and she dismissed the motion accordingly. This constituted a final order.
[5] On this appeal, the appellant asserts that:
• Master McAfee erred at law in concluding that the claim in question constituted a separate cause of action; and
• Erred at law in dismissing the motion to amend the statement of claim.
[6] The appropriate standard of review on an appeal from a master on a question of law is one of correctness.
[7] It is conceded in this appeal that the applicable limitation period had expired before the amendments now sought were put forward. This appeal does not proceed therefore upon an assertion that special circumstances could or should apply to allow amendments to plead a new cause of action after the expiry of a limitation period.[^2]
[8] The appellant insists that the proposed amendments merely seek to extend an existing cause of action by adding a new head of damages. The appellant likens the situation here to that facing the Supreme Court of Canada in the Cahoon case[^3] where the plaintiff claimed property damage originally and, after the limitation period had expired, sought to amend to include a claim for personal injuries. The Court determined that the proposed amendments did not establish a new cause of action. The following appears (at para. 7):
The cause of action or, to use the expression of Diplock, L.J., ‘the factual situation’ which entitles the plaintiff here to recover damages from the defendant is the tort of negligence, a breach by the defendant of the duty which he owed to the plaintiff at common law which resulted in damage to the plaintiff… The single cause of action cannot be split to be made the subject of several causes of action.
[9] The respondents submit that Cahoon must be read with caution because it did not address derivative claims brought under the Family Law Act and submit that at common law, there was no cause of action available to relatives for loss of care, guidance and companionship resulting from death or injury suffered by a family members and it was only with the passage of the Family Law Reform Act, R.S.O. 1980 c. 152 in 1978 that a statutory cause of action for such losses was created in Ontario.[^4]
[10] The fact is however that the appellant’s statutory entitlement to seek damages under the Family Law Act did exist in Ontario at the time of the accident in question in this litigation. Unlike the factual situation in Lafrance, the appellant could have initiated a claim for the relief now sought in this case in lieu of or in addition to the claims described in the statement of claim. In this regard, this case mirrors the situation before the Court in Cahoon where the plaintiff sued for $305 for car damage and later amended the claim to include a claim for personal injuries and then later to particularize the personal injuries that left him totally disabled and unable to work. The amended statement of claim asked for special damages for medical and hospital expenses, loss of income and $150,000 for general damages.[^5] The Court asked and answered the question of whether these amendments set up a new cause of action. The answer was no.
[11] In the result, amendments that were both significant and new were allowed to stand in amended pleadings in order that the damages claimed would be described with appropriate particularity but not so as to create a new cause of action.
[12] A further result from Cahoon is that the Court allowed claims to proceed forward that involved claims for damages arising from the personal injuries and limitations in functioning asserted by a plaintiff, on the one hand, and claims that arose from the status of the plaintiff, as owner of a damaged car, on the other. In this regard, the instant case is similar, in that the appellant seeks to amend to add claims arising from her legally recognized status as a spouse, derivative claims flowing from injuries and compromised functioning of her husband from the accident in question, to her allegations of her own injuries and claims for damages arising from her own injuries.
[13] In the Ascent case[^6], Master Dash defined a cause of action as follows:
a cause of action has been defined as a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The key is whether substantially all of the material facts giving rise to the new cause of action have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action. A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied upon or amounts simply to different legal conclusions drawn from the same set of facts, or simply provide particular's of an allegation already pled or additional facts upon which the original right of action is based.
[14] The appellant points to a series of cases in which amendments have been made to claims arising from motor vehicle accidents after the expiry of the limitation period. In these cases, the amendments were allowed as they did not create a new cause of action.[^7]
[15] In the Dimartino case,[^8] Horkins J. allowed the plaintiff to amend the statement of claim at the commencement of trial to add claims for aggravated damages, after the limitation period had expired. She determined that:
a claim for any type of damages, including aggravated, is not a cause of action. It is a remedy and it does not stand alone.
The factual situation that entitles the plaintiffs to assert a claim against RBC is the existence of a policy of insurance issued by RBC, the plaintiffs’ entitlement to claim accident benefits under this policy, RBC's handling of the claims and decision to deny the benefits.
The plaintiffs sued RBC seeking payment of the benefits refused. The proposed amendment to claim aggravated damages relies on the same factual situation. The fact that aggravated damages will focus more on RBC's handling of the claims and the basis for the denial does not mean that the claim for aggravated damages should be treated as a new cause of action.
[16] The appellant insists that Master McAfee concluded that the proposed amendments constitute a new cause of action on the basis that new material facts would need to be pleaded relating to the injuries suffered by the plaintiff's husband and the financial and other losses that the plaintiff would assert that she experienced resulting from her husband's injuries.
[17] The appellant states that amendments to existing pleadings would of necessity have followed from the amendments permitted in the cases referred to above and the addition of new facts in an amended pleading does not create a new cause of action. The appellant also submits that the applicable cause of action is that the respondents were negligent and that their negligence resulted in the appellant having sustained damages. The proposed amendments simply provide additional particulars of the damages claimed and do not advance the new cause of action.
[18] The parties remain the same. The basis for the new damages claimed under the Family Law Act remains the alleged negligence of the defendants in the operation of a motor vehicle leading to the accident in question already described in the original pleadings.
[19] In my view, the Learned Master erred in focusing too closely upon the need to amend the statement of claim to refer to the facts that the plaintiff’s husband was a passenger who was also injured in the plaintiff’s vehicle and that her statutory entitlement to additional damages from the defendants in this action is based, in part, upon those injuries. By maintaining a focus upon the original cause of action and the law established by the Court in Cahoon, the plaintiff’s claims against the defendants for damages arising from the accident in question, she should have determined, as I do, that the amendments sought do not raise a new cause of action.
[20] The parties have agreed that the costs to be awarded to the successful party on this appeal should be $3500. So ordered.
[21] In the result, I allow the appeal with costs to the appellant of $3,500, in any event of the cause.
Moore J.
DATE: 13 June 2012
[^1]: McEvenue v. Robin Hood Multifoods Inc. (1997), 1997 12131 (ON SC), 33 O.R. (3rd) 315, 10 C.P.C. (4th) 383 (Ont. Gen. Div.) [^2]: An issue in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3rd) 401 [^3]: Cahoon v. Franks, [1967] CarswellAlta 48 (S.C.C.) [^4]: Lafrance Estate v. Canada (Attorney General), [2002]O.J. No. 112, at para.9 [^5]: Supra, at para. 2 [^6]: Ascent Inc. V. Fox 40 International Inc., [2009] CarswellOnt 4118 (Ont. Master) [^7]: Sipthorpe v. Hammill, [1992] CarswellOnt 3860 (Gen. Div.); Gladstone v. Canada National Transportation Ltd., [2008] CarswellOnt 4913 (Ont. Master); and MacGregor v. Royal & Sun Alliance Insurance of Canada, [2009] CarswellOnt 2026 (S.C.J.). [^8]: Dimartino v. RBC Insurance Company, [2010] CarswellOnt 2138 (S.C.J.).