Court File and Parties
JUBENVILLE v. O’BRIEN CV-09-385012 2016 ONSC 6410
MOTION HEARD: OCTOBER 13, 2016
Counsel: Earl Murtha for the defendants, moving parties Eman Khoshbin for the plaintiff, responding party
ENDORSEMENT
Master R. A. Muir -
[1] This motion arises from a very unfortunate and regrettable set of circumstances. The plaintiff is an innocent party. She was simply a passenger in a motor vehicle travelling in the state of Tennessee on February 27, 2000. The vehicle was involved in an accident and the plaintiff was seriously injured.
[2] The plaintiff retained the defendant lawyers to act on her behalf in advancing a tort claim and an accident benefits claim. The tort claim was started in February 2002 but was ultimately dismissed by Justice Rogin on a summary judgment motion on January 6, 2009. Justice Rogin found that the applicable limitation period for the tort claim expired one year after the accident in accordance with Tennessee law. The claim was out of time.
[3] The plaintiff started this action on August 13, 2009. She is claiming that the defendants acted negligently in the handling of her claims. Discovery is complete. This action has been set down for trial. A pre-trial will take place on October 18, 2016, just three business days from today. The trial is on the long trial list and is set for 20 days beginning January 3, 2017.
[4] Nearly 17 years has gone by since the plaintiff was injured. She has yet to have her day in court. The defendants now seek leave to amend their statement of defence. They want to add allegations regarding the state of the law at the time the tort statement of claim was issued in 2002 as part of their standard of care defence. They also seek to include allegations that the plaintiff missed the limitation period applicable to this negligence claim against her former lawyers.
[5] The defendants first alerted the plaintiff to these proposed amendments in April 2016, nearly seven years after the claim was issued and after pre-trial and trial dates had been agreed to. The plaintiff is not opposed to some of the amendments but argues that others should not be allowed. In particular, the plaintiff argues that certain amendments amount to an abuse of process, are res judicata and a collateral attack on Justice Rogin’s summary judgment decision. She invokes the doctrines of issue estoppel and cause of action estoppel. The plaintiff also argues that she will suffer non-compensable prejudice if certain of the amendments are permitted.
[6] Motions of this nature place this court in a very difficult position. A master has no jurisdiction to adjourn a fixed trial date. See Rule 52.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). However, the order the court is being asked to make on this type of motion could, in some circumstances, result in an adjournment of the trial. The parties did not attend at trial scheduling court before this motion was scheduled. They simply prepared their materials and showed up today for oral argument. Of course, I could have required an attendance at trial scheduling court before I heard the motion but that would have necessitated an adjournment of this motion which would only result in further delay. I reluctantly concluded that it was best for all concerned if this motion was heard and decided today.
[7] I have great sympathy for the plaintiff’s position. Ms. Jubenville is entitled to her day in court. She has waited too long. However, I feel bound by the Rules and the relevant authorities to grant the relief requested by the defendants. I am optimistic, given the limited scope of the amendments, that no adjournment of the trial will be necessary. The defendants have committed themselves to dealing promptly with any additional steps necessitated by the amendments and I expect them to adhere to that promise. Some of the proposed amendments are not opposed by the plaintiff and will result in additional work in any event. I do not view the contested amendments as significantly increasing that additional time and effort. The parties and counsel have demonstrated their skill and ability to focus resources on this litigation by the manner in which this motion was prepared and argued. I am sure they can do the same in order to have this action ready for trial on January 3, 2017.
[8] As a preliminary point, the plaintiff argued that the defendants required leave to bring this motion pursuant to Rule 48.04. This action has been set down for trial and trial dates have been agreed to and scheduled. It is my view, however, that leave is not required. The defendants did not set this action down for trial and they did not consent to the matter being placed on a trial list as contemplated by the Rule. See my decision in Arunasalam v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 5235 (Master) at paragraphs 6 to 23, for a full discussion of the issue.
[9] The starting point on any motion under Rule 26.01 is the general proposition that the rule is mandatory. Leave shall be granted, at any stage of an action, unless non-compensable prejudice would result. A proposed pleading must also be legally tenable and otherwise comply with the rules of pleading. The court should not allow an amendment to a pleading that would have been struck out if originally pleaded. See Marks v. Ottawa (City), 2011 ONCA 248 at paragraph 19. The moving party does not need to include evidence as to the merits of the proposed amendments. The court should not go beyond the pleading to determine whether a claim or defence is tenable or meritorious, as that word is used in Marks. See Schembri v. Way, 2012 ONCA 620 at paragraph 33.
[10] The plaintiff does not oppose the proposed amended paragraphs 3.1, 3.3, 4.1, 7(b), 14.4, 14.5, 14.6 and 15.1. The plaintiff is opposed to the proposed amendments found at paragraphs 3.2, 14.1, 14.2, 14.3, 14.7 and 20(e) of the draft amended statement of defence.
[11] Paragraph 3.2 of the proposed amended statement of defence simply states that the defendant Jerry O’Brien issued the tort action statement of claim within two years of the accident in accordance with the law of Canada at the time. The defendants allege that by doing so, Mr. O’Brien met the applicable standard of care. He states he cannot be held responsible for changes to the law after that date.
[12] The plaintiff argued that this proposed paragraph should not be permitted. She took the position that this paragraph is an abuse of process, is res judicata and a collateral attack on Justice Rogin’s summary judgment decision. I do not view paragraph 3.2 as inconsistent with Justice Rogin’s decision. That decision applied the law as it existed in 2009. The defendants allege a change in the law between February 2002 and January 2009 for which they should not be held responsible. This paragraph does not challenge Justice Rogin’s decision. It simply relates to whether the defendants met the applicable standard of care when they issued the statement of claim in the tort action which forms part of the court’s consideration when determining the plaintiff’s allegations of negligence. The alleged negligence of the defendants in handling the plaintiff’s claims was not, and could not have been, an issue that was before Justice Rogin on the summary judgment motion in the tort action. In my view, proposed paragraph 3.2 is an acceptable form of pleading. It does not amount to an abuse of process and is not otherwise improper. It is relevant to the standard of care issue. It clarifies proposed paragraphs 3.1 and 3.3 to which the plaintiff does not object. In my view, it simply particularizes the allegations found in paragraph 3 of the statement of defence as originally pleaded.
[13] Proposed paragraphs 14.1, 14.2, 14.3, 14.7 and 20(e) all relate to a limitation defence. The defendants now wish to make allegations that this negligence claim was brought beyond the applicable two year limitation period. These paragraphs allege that in June 2007, the defendants advised the plaintiff that they may have missed the limitation period to issue the statement of claim in the tort action and recommended she seek independent advice. These paragraphs also allege that the plaintiff missed the limitation period in relation to her accident benefits claim as well.
[14] The plaintiff submitted that she will suffer non-compensable prejudice if these amendments are permitted. The plaintiff argued that she has lost the ability to make a claim against her current lawyers for missing these limitation periods due to the expiry of the limitation period for bringing a negligence claim against her current lawyers. I do not accept this argument. The evidence on this motion indicates that the plaintiff and her current lawyers had no idea that the defendants in this action would be asserting a limitation defence until April 2016 at the earliest. There is no other evidence before the court on this motion to suggest that the plaintiff may have been aware of a limitation issue with this claim before that date. The onus is on the party opposing the amendments to demonstrate non-compensable prejudice. See Tate v. Bishop, 2015 ONSC 742 (Master) at paragraph 23. In my view, the plaintiff has not done so. These proposed amendments also comply with the rules of pleading and are tenable at law.
[15] I have therefore concluded that the defendants are entitled to the relief requested. They are hereby granted leave to amend their statement of defence in accordance with the revised draft amended statement of defence filed with the court on October 13, 2016.
[16] The parties shall confer and attempt to agree on the issue of the costs of this motion, including costs thrown away arising from the amendments. If the parties are unable to agree, they shall provide the court with brief submissions in writing by November 4, 2016.