Court File and Parties

COURT FILE NO.: CV-15-540887 DATE: 20220419 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ABDULLAH HORANI, by his Litigation Guardian, RANIA ALSAMAN, and RANIA ALSAMAN, personally AND: MANULIFE FINANCIAL CORPORATION

BEFORE: VERMETTE J.

COUNSEL: David F. MacDonald, for the Plaintiffs David A. Zuber, for the Defendant

HEARD: April 13, 2022

Endorsement

[1] The Plaintiffs move for an order:

a. granting the Plaintiffs leave to bring this motion;

b. compelling the Defendant to answer all outstanding undertakings;

c. compelling the Defendant to produce a further and better affidavit of documents;

d. granting leave to the Plaintiffs to amend their Amended Statement of Claim to increase the prayer for relief for damages from $4 million to $7 million and to add a claim for punitive damages in the amount of $2 million; and

e. abridging the time for service by the Plaintiffs of an expert report on the issue of the Defendant’s duties and the standard of care expected of it under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).

Factual and Procedural Background

[2] This action arises out of alleged injuries that were sustained as a result of a fall by Mr. Horani on August 5, 2014. Mr. Horani was an employee of the Defendant and the alleged fall took place at his workplace, on the Defendant’s premises. It is alleged that Mr. Horani tripped over cords, wires and/or cables left beside a nearby workstation, and that he suffered severe and lasting personal injuries as a result of his fall.

[3] The Statement of Claim was issued on November 20, 2015 and amended on January 19, 2017 to name Mr. Horani’s wife, Ms. Alsaman, as his litigation guardian. The Statement of Defence was served on January 15, 2016. Liability, causation and damages are disputed.

[4] The examination for discovery of the Defendant’s representative took place on November 14, 2016.

[5] A private mediation was held on April 13, 2018, but no settlement was reached.

[6] On or around April 27, 2018, the Plaintiffs set down the action for trial by delivering a Trial Record. Counsel for the Plaintiffs signed a Lawyer’s Certificate of Trial Record dated April 27, 2018.

[7] On February 28, 2019, counsel for the Plaintiffs provided the Court with a completed Trial Certification Form to set pre-trial and trial dates. On June 5, 2019, the parties’ counsel attended Trial Scheduling Court. The Court ordered a timetable for the exchange of expert reports and scheduled a pre-trial conference for January 7, 2021 and a 25-day trial starting March 29, 2021.

[8] The Defendant provided answers to undertakings on August 22, 2019 (“August 22, 2019 Letter”) and a supplementary affidavit of documents on December 9, 2020.

[9] On January 7, 2021, the parties attended a pre-trial conference before Justice Ferguson. The Trial Management Report to Trial Judge that was prepared in connection with this pre-trial conference indicated the following:

a. all expert reports had been delivered;

b. forms 53 had been served for all experts;

c. pleadings were in order;

d. productions and discoveries were complete;

e. undertakings had been fulfilled; and

f. the Plaintiffs intended to bring a motion for leave to call more than three expert witnesses and with respect to the use of demonstrative aids at trial.

[10] The trial did not proceed as scheduled on March 29, 2021 because of the unavailability of a civil jury in the context of the COVID-19 pandemic. On March 15, 2021, the Court rescheduled the trial to May 16, 2022, after counsel confirmed their availability.

[11] On March 22, 2022, the parties attended a second pre-trial conference before Regional Senior Justice Firestone. The Trial Management Report to Trial Judge that was prepared in connection with this pre-trial conference indicated the following:

a. all expert reports had not been delivered, but forms 53 had been served for all experts;

b. productions were not complete and undertakings were not fulfilled as the Defendant was requesting updated family doctor records and the Plaintiffs were requesting that the Defendant “produce Joint Occupational Health & Safety Committee meeting minutes and other outstanding undertakings”;

c. pleadings were in order;

d. discoveries were complete; and

e. the Plaintiffs intended to move for leave to call more than three experts and may move for answers to certain undertakings.

[12] In an endorsement, Regional Senior Justice Firestone noted that the trial would be 32 days, not 25 days, but that the May 16, 2022 trial date was not to be vacated on this basis. He directed counsel to schedule a case conference before Justice Wilson to discuss the issue of the availability of the Defendant’s counsel for the trial.

[13] After the pre-trial conference on March 22, 2022, counsel for the Plaintiffs sent a letter to counsel for the Defendant asking for an answer to a particular undertaking (referred to below as undertaking 4) which concerned minutes of meetings of the Defendant’s Joint Health and Safety Committee.

[14] On March 31, 2022, counsel for the Plaintiffs sent the following e-mail to counsel for the Defendant outlining his position on the issues raised on this motion:

This follows our discussions last week on productions, my call to your clerk Colleen Tuesday and my voicemail to you Tuesday asking for a call. Can you please call my cell to discuss. […]

It also follows my comments at the trial management conference last week about some critical outstanding defence productions/ undertakings.

These productions are central to the plaintiff’s claim and their absence has forestalled me from providing the necessary instructions to an OHSC expert to secure a report that will address a fundamental issue at the trial of the matter: Manulife’s onus to satisfy its OHSC responsibilities to provide a safe workplace. As soon as I have these productions I’ll be able to instruct the expert and a report will follow. I anticipate the addition of this witness will increase the trial length by one day.

As mentioned, despite having had efforts from your office to address other undertakings over the years since the 2016 discovery of your client, there remain outstanding undertakings including those related to this central issue. I have no information to address an outstanding undertaking with respect to Manulife satisfying onus to provide safe working environment under OHSA, and a few other undertakings are also outstanding as mentioned at the trial management conference and there have been various letters we have sent over the years and last week requesting this information.

I’ve sent along last week the pages with respect to undertaking from the transcript.

At the discovery in 2016 the OHSA and JHSC undertaking was to review and decide what to produce with respect to any and all minutes respecting JHSC addressing tripping hazards pre or post incident but I’ve received nothing.

As they are relevant to whether the defendant has complied with the OHSC onus to make the workplace safe and other responsibilities, it would be relevant for your client to produce all or portions of the Manulife OHSC policy with respect to tripping hazards and any inspection sheets if there are any or any information on any employee training, if there has been any.

I had hoped to receive the undertaking documents or any of the above relevant documents when requested over the years since the 2016 discovery but they really should have been part of an initial affidavit of documents since breach of the OHSA was pled in the statement of claim.

Currently as there is no evidence provided to address whether the employer met its OHSA onus/responsibilities, as mentioned, I have been unable to properly instruct an expert I have consulted in compliance with OHSA matters.

Further and in addition, to fairly know what case to meet at trial, the plaintiff requires all evidence anticipated at trial, documents and willsays of any documentation and any witnesses who will address actual or purported proactive or remedial efforts under the OHSA. This information is also a prerequisite to properly instruct the OHSC expert I have consulted on the OHSC issue.

Finally, given the current absence of any information to suggest the employer proactively or post accident took the OHSA mandated and required steps to make the workplace safe, I have instructions to move to amend the prayer for relief to $8,000,000 and to assert a claim for punitive damages in the amount of $2,000,000[.] The amended claim will include particulars of Manulife’s failure to properly meet its responsibilities under the OHSA. My proposed amended claim will follow under cover of the notice of motion today.

We have a case conference April 4 and I’ll serve our motion with respect to amendment, compliance with Undertakings and further and better affidavit of documents hopefully today.

I would appreciate receiving the requested information immediately and understand Colleen is working on it now as a result of a trial of yours settling last Friday, I understand.

Please call me to discuss. […]

[15] The evidence before me is that this March 31, 2022 e-mail is the first time that counsel for the Defendant was advised of a potential expert concerning issues under the OHSA. Further, while the e-mail above refers to previous requests for answers to undertakings, they are not in evidence before me, except for the letter sent on March 22, 2022 referred to above.

[16] Counsel for the Defendant sent the following response to counsel for the Plaintiffs on the same day:

I got your voicemail message. I have briefly looked at the request at the discovery. You describe it as an undertaking when in fact it was an under advisement. Given that you set this matter down for trial, and prior to your voicemail never indicated that there were amendments and further expert reports and even a new theory of the case being advanced, my client will be opposing your requests, which arguably are statute barred (new theory and facts) and due to the fact this is being raised years after being set for trial and within weeks of the trial. I have a series of meetings today but I am in the office tomorrow morning if that is convenient to your schedule.

[17] Counsel for the Plaintiff responded as follows:

David, thanks for your reply, glad to chat whenever it works.

I’ll send the transcript over, you may have seen the under advisement followed by the undertaking on page 48:

Glad to talk tomorrow or tonight.

Concerning your comments, my email today doesn’t provide anything new, except the issue of punitive damages which is tied to what efforts, if any, Manulife took to address its OHSA responsibilities to “ensure” a safe workplace. I haven’t been provided yet any information to address this issue so I go back to the undertaking.

Even more, on the issue of relevancy and notice, all this tracks back to the statement of claim OHSA alleged breaches and the discovery undertaking to review all the JHSC minutes with respect to tripping hazards, decide whether or what you want to produce and produce that.

Without prejudice, I would have thought it would help your client to produce whatever there is to show the employer took active steps to address their OHSA responsibilities.

If there is nothing, I haven’t been told that and if you are telling me that now, then in the absence [sic] any evidence of compliance of their OHSA obligations there is potentially contumelious disregard for the employer requirements under the OHSA, leading directly to a failure to take steps to prevent any tripping hazards, including the Ethernet cord which your employees found encircling the plaintiff’s foot after he fell and was unconscious on the floor. This would arguably be the basis for a punitive award damages.

Bottom line, despite the undertaking, I’ve not been provided anything to address that yet. The sooner Colleen and you can share the results of the undertaking, the better as I can then instruct the expert and get the report completed.

If you can tell me there is nothing then I’ll proceed to get the report now on that basis. But I need to know whether nothing is being produced or obtain what you decide to produce.

If nothing is being produced then I’ll need full particulars and will says from all defence witnesses on what evidence of [sic] any will be offered at trial on the OHSA compliance issue. I’d appreciate that now as it will avoid a supplemental report from the expert.

What time works tomorrow?

[18] The Plaintiffs’ Notice of Motion and Motion Record were served in the evening of April 1, 2022.

[19] Following counsel’s attendance at a case conference before her on April 4, 2022, Justice Wilson scheduled this motion to be heard on an urgent basis so that it could be determined before the trial on May 16, 2022.

[20] The supplementary affidavit of Robert Ben (one of the Plaintiffs’ counsel) sworn April 8, 2022 and filed on this motion discloses that the Plaintiffs have retained Jeremy Shorthouse for the purpose of providing an expert opinion as to, among other things, whether the Defendant met its obligations under the OHSA. An expert report prepared by Mr. Shorthouse dated April 8, 2022 is attached to the supplementary affidavit.

[21] Most of the relief sought on this motion relates to issues of occupational health and safety which are allegedly raised in this action. Mr. Ben states in his affidavit that “[p]art of the Plaintiffs’ theory of liability against Manulife is that it failed to meet its obligations under the [OHSA]”. He also states the following:

A central aspect of the Plaintiffs’ theory of Manulife’s liability is that Manulife, as Mr. Horani’s employer, owed him a strict duty to ensure all work equipment, including computer network cables, was maintained in good condition and that Manulife was obliged to fulfill its obligations under Section 25 of the Occupational Health and Safety Act to take “every precaution reasonable” for the protection of its workers.

[22] According to the Plaintiffs, the Defendant has not disclosed or produced documents with respect to occupational health and safety in the litigation to date, including documents related to the Defendant’s compliance or non-compliance with its obligations under the OHSA.

Discussion

1. Leave under Rule 48.04(1) of the Rules of Civil Procedure

[23] Rule 48.04 of the Rules of Civil Procedure provides as follows:

Consequences of Setting down

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(0.1) rule 29.1.03 (requirement for discovery plan),

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness); or

(vii) Revoked.

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).

(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b).

[24] While the case law is not uniform with respect to the applicable test under Rule 48.04(1), I agree with the analysis of Justice Cornell in Denis v Lalonde, 2016 ONSC 5960 at paras. 8-27 and his conclusion that, in order to be granted leave under Rule 48.04(1), a moving party must show a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust.

[25] Since the Plaintiffs have set the action down for trial, they require leave to bring this motion, unless some of the exceptions in Rule 48.04(2) apply.

[26] The requirement to obtain leave applies to the Plaintiffs’ request for an order compelling the Defendant to produce a further and better affidavit of documents: see Ginkel v. East Asia, 2010 ONSC 905 at para. 17.

[27] With respect to the Plaintiffs’ request for an order compelling the Defendant to answer all outstanding undertakings, leave is not required as such relief is covered by an exception under Rule 48.04(2)(a) and a combination of Rules 48.04(2)(b)(iii), 31.07(4), and 48.04(3).

[28] With respect to the request for leave to amend the Amended Statement of Claim, it has been recognized in the case law that when the court is asked under Rule 48.04(1) to grant leave to a party to bring a motion for leave to amend a pleading, the language of Rule 26.01 defines the scope of the discretion to be exercised by the court. Thus, the court will consider whether the granting of leave to bring a motion to amend a pleading would result in prejudice that could not be compensated for by costs or an adjournment. See Gloucester Organization Inc. v. Canadian Newsletter Managers Inc., 21 O.R. (3d) 753 (Gen. Div.) and Trillium Power Wind Corp. v. Ontario, 2019 ONSC 6905 at para. 25. I discuss the request to amend the pleading in light of the test set out in Rule 26.01 below in section 4.

[29] With respect to the request to abridge the time for service of an expert report by the Plaintiffs, even though Rule 53.03 is referred to as an exception in Rule 48.04(2)(b)(vi), there are cases that require that leave be granted under Rule 48.04 to bring such a motion: see Chokler v. FCA Canada Inc., 2017 ONSC 4494 at para. 20 and Canadian Imperial Bank of Commerce v. Wiks, [2000] O.J. No. 2700 at para. 2 (S.C.J.) (“Wiks”). Rule 48.04(2)(b)(vi) states that Rule 48.04(1) does not relieve a party from any obligation imposed by Rule 53.03. While Rule 53.03 sets out a number of obligations with respect to expert reports, Rule 53.03(4) – which deals with extension or abridgement of time – does not contain any obligations. Therefore, this could support the conclusion that the exception in Rule 48.04(2)(b)(vi) does not apply to Rule 53.03(4) and that leave is required. However, in my view, some of the provisions of Rule 53.03 cast doubt on this conclusion. Among other things, the schedule setting out dates for the service of experts’ reports is set out after an action is set down for trial (see Rule 53.03(2.2)) and Rule 53.03(4)(a) provides that the time provided for service may be extended or abridged at the pre-trial conference, which also takes place after the action has been set down for trial.

[30] Ultimately, I find it unnecessary to decide whether leave is required under Rule 48.04 in order to bring a motion under Rule 53.03(4) after the action has been set down for trial given the conclusion that I reach on the Plaintiffs’ request to abridge the time for service of an expert report (see section 5 below).

2. Request for further and better affidavit of documents

[31] The Plaintiffs’ request for a further and better affidavit of documents focuses on documents pertaining to the Defendant’s obligations under the OHSA, including minutes of meetings of the Joint Health and Safety Committee, inspections by the same Committee, as well as written policies, procedures and guidelines related to occupational health and safety. Among other things, the Plaintiffs argue that they need such documents in order to be able to present expert evidence at trial on the “central issue” of the Defendant’s duties and the standard of care of an employer under the OHSA.

[32] The Plaintiffs argue in their factum that:

[i]t would be patently unfair to the plaintiff for the plaintiff to not be permitted to present expert evidence at trial on the central issue; namely, Manulife’s duties and the standard of care of an employer under OHSA, particularly in circumstances where Manulife has pleaded in its Statement of Defence that it has complied with the OHSA and its requirements, including establishing a JHSC to identify and respond to workplace hazards, yet has not produced any documents relating to JHSC activities.

[33] In my view, the allegation that the issue of the Defendant’s duties and the standard of care of an employer under the OHSA is a “central issue” for the Plaintiffs is simply not credible. It is belied, among other things, by the fact that: (a) the action was set down for trial without the requested information on this issue; (b) the Plaintiffs were prepared to go to trial in March 2021 without this information; (c) the Plaintiffs only requested this information less than two months before the May 16, 2022 trial date; and (d) the Plaintiffs do not appear to have retained an expert on this issue until very recently.

[34] For the purpose of this motion, I accept that the requested documents are relevant. However, the Plaintiffs have not demonstrated that there has been any change, let alone a substantial or unexpected change, since the action has been set down for trial, either in general or more specifically in relation to issues pertaining to occupational health and safety. Therefore, I decline to grant leave to the Plaintiffs to bring a motion for a further and better affidavit of documents. [1]

[35] I note that even if I had applied the broader test adopted in some of the cases under Rule 48.04(1), i.e. leave should be granted where the interlocutory step is necessary in the interests of justice, I would also have declined to grant leave. In light of the sequence of events in this case, the only reasonable inference is that counsel for the Plaintiffs did not turn their mind to the advisability of obtaining additional documents with respect to the OHSA issue until a few weeks before the start of the trial, even though: the examination for discovery of the Defendant took place in 2016; undertakings were answered in 2019; the Defendant served a Supplementary Affidavit of Documents in December 2020; this matter was supposed to go to trial in March 2021; and the current trial date was fixed more than a year ago. As stated by Justice Baltman in Chokler v. FCA Canada Inc., 2017 ONSC 4494 at para. 19: “However low the threshold may be, it is not in the interests of justice to give leave for the relief sought when there has been no plausible explanation for the delay beyond counsel’s inattention.”

3. Outstanding undertakings

[36] The undertakings chart attached to the Notice of Motion contains four alleged outstanding undertakings. The supplementary affidavit of Mr. Ben attaches an updated chart. The affidavit states that the undertakings chart was updated to reflect the transcript verbatim with respect to one undertaking. However, the updated chart contains five entries. No explanation is provided as to why a new undertaking was added. It is unclear whether counsel for the Defendant realized that a new undertaking was added to the chart as it was not addressed in the Defendant’s materials.

[37] With reference to the updated chart attached to the supplementary affidavit of Mr. Ben, while undertakings 2 and 3 were not directly answered in the August 22, 2019 Letter, answers were provided in the Affidavit of Meaghan McCarthy filed on this motion. Undertaking 5 was partially answered in the same affidavit, but counsel for the Defendant indicated at the hearing that he would make inquiries as to whether any of the other persons listed in the chart were no longer employees of the Defendant. Undertaking 1 is a related question in that it asks for the last known contact information of such persons no longer employed by the Defendant. Given that undertakings 1 and 5 remain outstanding, I order the Defendant to provide answers by April 29, 2022.

[38] The parties’ focus on this motion was on undertaking 4. The Plaintiffs’ position is that an undertaking was given, while the Defendant’s position is that the question was taken under advisement and, since no answer was provided within 60 days after the response, it has become a refusal: see Rule 31.07(1)(b) of the Rules of Civil Procedure.

[39] Undertaking 4 arises out of the following exchange during the examination for discovery of the Defendant:

179. Q. Did that Joint Health and Safety committee have regular meetings?

A. I don’t know. Not being a member myself.

MR. BEN: Okay. So, Counsel, I would like production of any minutes of meetings of the Joint Health and Safety committee both before and after the incident concerning the fourth floor in particular or more generally, you know, any inspections or protocols or policies concerning ensuring that network cables specifically were tucked away and not in corridors or pathways where employees would walk.

MR. ZUBER: Back how far, I guess?

MR. BEN: Well, I guess that’s the question. Right?

MR. ZUBER: Let me inquire as to -- because I don’t know how often they meet and so I don’t know if we’re talking about boxes of documents or whatever.

MR. BEN: Right.

MR. ZUBER: So, let me take it under advisement. I think I know what you’re looking for in terms of any minutes of a Joint Health and Safety committee –

MR. BEN: Right.

MR. ZUBER: -- for which there is an issue of cables. What I’ll do is I’ll see how voluminous the stuff is and then I’ll let you know how far I go back and if and why and I’ll give you the gust [sic] of it.

MR. BEN: Yes. That’s fine. To help you here, I’m just going by the letter to the Ministry of Labour where it indicates Cindy McArthur as the JHSC rep discussed with corporate real estate representative, Robert Kaups, K-A-U-P-S, and reviewed where the wire was sticking out of the workstation. Apparently, corporate real estate was planning to do a building walk around to ensure all wires were tucked in under the workstations. Then, tripping hazards would be added to the agenda for the next JHSC meeting.

MR. ZUBER: Right. Right.

MR. BEN: So, I think what we can do is star [sic] with – let’s take a look at whether that made it to the agenda, how it was dealt with, and then ---

MR. ZUBER: Yes.

MR. BEN: You know, I'm not interested in producing volumes of information.

MR. ZUBER: No.

MR. BEN: So, your answer may be, yes, there are similar considerations that were on the agenda in previous meeting or there were none.

MR. ZUBER: Okay. Got it.

--- UNDER ADVISEMENT NO. 1 [Emphasis added.]

[40] Counsel for the Plaintiffs acknowledge that the question was initially taken under advisement, but they argue that the latter part of the answer – “What I’ll do is I’ll see how voluminous the stuff is and then I’ll let you know how far I go back and if and why and I’ll give you the gust [sic] of it” – amounts to an undertaking.

[41] I disagree. There is no clear undertaking. The first part of this passage relates to looking at how voluminous the documents are, which simply repeats the concern expressed by counsel earlier in the exchange, just before he took the question under advisement. The second part of the passage is not clear and the words “and if” suggest that this was not a firm commitment.

[42] It is also my view that the rest of the exchange about meeting agendas did not modify the answer that was given earlier. The context of this exchange is that meeting agendas would likely have to be reviewed in the event the decision was made to provide an answer to the question taken under advisement. No further undertaking was sought during that additional exchange with respect to meeting agendas, and no separate undertaking was given to look at any specific meeting agenda.

[43] While this is not determinative, the question in issue was noted as being a question under advisement in the transcript. There is no evidence before me that, before March 2022, the Plaintiffs took the position that this was an undertaking and/or asked the Defendant for an answer to that question.

[44] Since undertaking 4 is not an undertaking but a question taken under advisement for which no answer was provided, it is a refusal. Leave under Rule 48.04(1) is required to bring a refusals motion after an action has been set down for trial: Hamilton v. Ontario (Transportation), 2013 ONSC 4536 at paras. 10-17. While leave to bring a refusals motion was not specifically sought in the Notice of Motion, it was requested in the Plaintiffs’ Factum, but I would decline to grant leave for the same reasons as set out above with respect to the request for a further and better affidavit of documents. [2]

[45] Finally, I note that contrary to some of the assumptions made by the Plaintiffs in their affidavit evidence and Factum, even if undertaking 4 was, in fact, an undertaking, it was not an undertaking to produce any documents and it is very unclear what kind of information or level of detail would be provided in response. Thus, it was not reasonable for the Plaintiffs to rely on this “undertaking” to obtain documentation in relation to the OHSA and take no active steps for many years to obtain documents that are allegedly central to their case.

4. Amendments to Amended Statement of Claim

[46] The Plaintiffs are seeking to make two amendments: (1) to increase the amount of damages claimed by Mr. Horani from $4 million to $7 million; and (2) to add a claim for punitive, aggravated and/or exemplary damages in the amount of $2 million and two paragraphs in support of that claim.

[47] In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42 at para. 25 (“State Farm”), the Court of Appeal summarized the general principles that apply to motions for leave to amend pleadings. These principles are as follows:

a. Rule 26.01 requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action.

b. The amendment may be permitted at any stage of the action.

c. There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.

d. The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.

e. Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.

f. At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed.

g. The onus to prove actual prejudice lies with the responding party.

h. The onus to rebut presumed prejudice lies with the moving party.

[48] This motion to amend was brought more than 7½ years after the incident, more than 6 years after the action was commenced, more than 5 years after the examination for discovery of the Defendant’s representative took place, and almost 4 years after the action was set down for trial. There is no reasonable explanation of the delay in seeking the amendments. Therefore, I find that the delay in seeking an amendment in this case is such that prejudice to the Defendant is presumed.

[49] With respect to the request to amend the Amended Statement of Claim to increase the amount of general damages sought, the evidence before me, which has not been contradicted by the Defendant, is that the Defendant has had notice since at least April 2018 that Mr. Horani’s compensatory damages exceed the amount that has been pleaded, based on expert evidence that quantifies his past and future income loss, and the future medical, rehabilitation, care and other expenses that he is likely to incur because of his injuries.

[50] In my view, an increase in the amount claimed would not have affected the way in which the Defendant responded to the claim. The proposed amendment to the amount claimed does not depend on additional facts or legal arguments. Further, the Defendant has known about the extent of Mr. Horani’s alleged damages for four years. Therefore, I find that the presumption of prejudice has been rebutted with respect to this proposed amendment, and I grant leave to the Plaintiffs to amend their Amended Statement of Claim to increase the prayer for compensatory relief from $4 million to $7 million. See B. (M.) v. 2014052 Ontario Ltd. (2012), 109 O.R. (3d) 351, 2012 ONCA 135 at paras. 73-74 (“B. (M.)”).

[51] However, I reach a different conclusion with respect to the request to amend the Amended Statement of Claim to add a claim for punitive damages. In this regard, I find that the Plaintiffs have not rebutted the presumption of prejudice. Contrary to the amendment increasing the amount of compensatory damages, the claim for punitive damages depends on additional facts that were not pleaded (including facts related to the conduct of the investigation by the Defendant) and new legal arguments. I am not satisfied that the claim for $2 million in punitive damages would not have affected the way in which the Defendant responded to the claim. See B. (M.) at para. 74. Among other things, the Defendant may have produced additional documents and sought additional information from the Plaintiffs regarding the bases for their claim for punitive damages. As stated by Justice Binnie in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 86 (“Whiten”): it is a “basic proposition in our justice system that before someone is punished they ought to have advance notice of the charge sufficient to allow them to consider the scope of their jeopardy as well as the opportunity to respond to it.” [Emphasis in the original.] See also Whiten at para. 87.

[52] If leave were to be granted to add a claim for punitive damages, the Defendant would need to be given an opportunity to respond to it. The Statement of Defence would need to be amended, additional documents may have to be produced and, ordinarily, the Defendant would be allowed to ask questions of the Plaintiffs on an examination for discovery with respect to the bases for these new allegations. Additional documentary and/or oral discovery could not take place without jeopardizing the trial date and I have no evidence as to how far in the future a new trial date could be obtained for this matter, a 32-day jury trial. The risks of adjourning the trial for a second time and incurring additional and potentially significant delay on top of the delay already incurred in this matter strengthen the presumption of prejudice in this case. The Plaintiffs have not adduced evidence that rebuts this presumption. See State Farm at paras. 43-46.

[53] The cases relied upon by the Plaintiffs with respect to amendments adding a claim for punitive damages are all distinguishable as none of them deal with the issue of presumed prejudice.

5. Abridgement of time for service by the Plaintiffs of an expert report

[54] While the relief initially sought by the Plaintiffs in their Notice of Motion was an order abridging the time for service by the Plaintiffs of an expert report on the issue of the Defendant’s duties and the standard of care expected of it under the OHSA, the relief currently sought by the Plaintiffs is slightly different in light of the fact that, after bringing this motion, they obtained an expert report from Mr. Shorthouse. Thus, the Plaintiffs are now asking that leave be granted to the Plaintiffs to introduce the evidence of Jeremy Shorthouse as contained in the expert report dated April 8, 2022 and that leave be granted to serve a supplementary report by Mr. Shorthouse, no later than 7 days from the date of the Defendant’s compliance with its documentary production obligations, in the event relief is granted to the Plaintiffs on the other parts of their motion.

[55] If leave to bring a motion for this relief is required under Rule 48.04(1), I would decline to grant leave for the reasons set out above. As stated above, there has not been any change, let alone a substantial or unexpected change, since the action has been set down for trial, either in general or more specifically in relation to issues pertaining to occupational health and safety.

[56] If leave under Rule 48.04(1) is not required to bring a motion for abridgement of the time for the service by the Plaintiffs of an expert report, the test to be applied under Rule 53.03(4) is the same as the test under Rule 53.08, which applies when leave is sought at trial to have an expert witness testify despite the failure to comply with the requirements applicable to expert reports under Rule 53.03. The same test applies under both Rules in order to avoid the possibility of inconsistent results, depending on the timing of the motion: see Wiks at paras. 8-10 and Homes of Distinction (2002) Inc. v. Adili, 2019 ONSC 7588 at para. 10.

[57] The language of Rule 53.08(1) was recently amended. It now reads as follows:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or

(ii) cause undue delay in the conduct of the trial.

[58] It must be acknowledged that if leave under Rule 48.0(1) is required but denied, the Plaintiffs are able, for all intents and purposes, to renew their request at trial under Rule 53.08. The same may be true if a request to extend or abridge time for service is denied under Rule 53.03(4).

[59] In light of the foregoing and the fact that the trial of this matter is scheduled to start in only one month, it is my view that it is preferable to leave the issue of the admissibility of the new expert evidence to the trial judge, which can be determined at trial under Rule 53.08. The trial judge will be in a better position to apply the test under Rule 53.08 and take all the relevant factors into consideration.

[60] Thus, I decline to rule on the request to abridge the time for service of an expert report by the Plaintiffs and defer the issue to the trial judge.

Conclusion

[61] Accordingly:

a. the Defendant is ordered to answer undertakings 1 and 5 by April 29, 2022;

b. the Plaintiffs are granted leave to amend their Amended Statement of Claim to increase the prayer for relief for damages from $4 million to $7 million; and

c. the balance of the motion is dismissed.

[62] If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 10 days of the date of this decision. The Plaintiffs shall deliver their responding submissions (with the same page limit) within 10 days of their receipt of the Defendant’s submissions.

Vermette J.

Date: April 19, 2022

[1] Rules 30.08(1) and 53.08 of the Rules of Civil Procedure will apply at trial with respect to any documents that have not been produced by the Defendant.

[2] Rules 31.07(2) and 53.08 of the Rules of Civil Procedure will apply at trial with respect to any information that the Defendant refused to provide in answer to questions during its examination for discovery.