Court File and Parties

Court File No.: CV-22-00090196-0000 Date: April 11, 2024 Superior Court of Justice - Ontario

Re: J.S. by his Litigation Guardian, Julia Forieri, Plaintiff And: K.O., Jeff O’Neil, Shayla Barry, C.T., Donald Theoret, and Ericka Theoret, Defendants

Before: Associate Justice M. Fortier

Counsel: David Cutler, Counsel for the Plaintiff Cheryl Letourneau, Counsel for the Defendants K.O., Jeff O’Neil and Shayla Barry

Heard: February 1, 2024

Endorsement

[1] This is a motion by the plaintiff for an Order granting leave to amend the Amended Statement of Claim. The Motion is opposed by the defendants K.O., Jeff O’Neil, and Shayla Barry (the “Defendants”) for the reasons set out below.

Background

[2] The plaintiff J.S. was ten years old on September 22, 2020 when he was subjected to racial insults and an unprovoked physical attack from another boy, the defendant K.O. (and the defendant C.T.). J.S.’s arm was broken in the attack. In this proceeding under the Rule 76 Simplified Procedure, J.S. sues K.O. for assault and K.O.’s parents for what the plaintiff has referred to as “negligent supervision”. As the boys involved in this altercation are minors, I have used initials to protect their identity.

[3] The plaintiff seeks to amend his Amended Statement of Claim to supplement or provide particulars of the negligent supervision claim. This amendment is opposed by the Defendants. They argue that the amendment adds additional tortious allegations against K.O which, in addition to being similar fact allegations, unduly expand and complicate the litigation as well as being statute barred.

The Amendment

[4] Paragraph 28 of the present pleading contains the negligent supervision claim, which reads as follows:

28. Jeff and Shalya were negligent in failing to use reasonable care and exercise reasonable supervision over K.O., including by allowing K.O. to associate with C.T. when they knew that K.O. was likely to engage in antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour either alone or when associating with C.T. and/or in the absence of adult supervision, having regard to K.O’s past words and actions in their family home(s), at school, and in the community at large. [Emphasis added.]

[5] The plaintiff’s proposed amendment on issue in this motion is the following:

28.1 More specifically, those past words and actions giving rise to a substantial likelihood that K.O. would engage in antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour either alone or when associating with C.T., including [ sic , included?] the following:

a. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour while K.O. was a student at Russell Public School (Upper Canada District School Board); b. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour while K.O. was a student at St. Mother Theresa Catholic School (Catholic District School Board of Eastern Ontario); c. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour while K.O. was a student at and/or member of the Russell Judo Club; d. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour while K.O. was a participant in programs offered by, or receiving services from Valoris and/or Intersections; e. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour as documented by K.O.’s health care providers; and, f. known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour engaged in by K.O. while using text messages, social media platforms and/or while using video games and ancillary video game chat functions.

[6] The plaintiff asserts that the proposed amendment specifies the particulars of what “known past words and actions” of K.O.’s are being referred to in paragraph 28 of the current pleading. These are described in each case as “known past incidents of antisocial, offensive, harmful, hateful, racist, violent and/or unlawful behaviour”.

[7] This described behaviour of K.O. is alleged to have occurred (a) while a student at Russell Public School, (b) while a student at Mother Theresa Public School, (c) while a student or member at Russell Judo Club, (d) while a participant in programs offered by Valoris or Intersections, (e) as documented by K.O.’s health care providers, or (f) when K.O. was using text messages, social media platforms or while using video games and ancillary chat functions.

Analysis

[8] It appears that the plaintiff wishes to plead the specifics of problematic “past words and actions” K.O. may have engaged in to broaden the scope of documentary production and questioning on discovery, and possibly to leverage the chance that a trial judge might rule this evidence admissible at trial.

[9] The amendment is clearly designed to open the door to an inquiry into K.O.’s possible anti-social behaviour on occasions prior to the incident giving rise to this proceeding. Evidence of previous discreditable conduct (sometimes referred to as similar fact evidence) can be allowed where the probative value of the evidence substantially outweighs the considerable prejudice inherent in such evidence.

[10] The relevance of this type of evidence must be addressed at an interlocutory stage of the proceeding so far as it relates to production and discovery. As explained by Master MacLeod (as he then was) in Toronto (City) v. MFP Financial Services Ltd., at para. 29:

The point of this brief foray into the law of evidence is to underscore that the precise nature of the evidence and the ruling on admissibility is a matter for trial. These are not matters to be argued at the pleading stage when the action is only broadly sketched out and neither side is expected to commit to its list of trial witnesses. It is inappropriate to try to predict at a pleading stage what the trial judge will admit or what evidence will ultimately be necessary. Put another way, the fact that similar facts are not pleaded will not necessarily prevent discovery of similar facts or preclude the trial judge from admitting similar fact evidence. On the other hand if similar facts are material to an allegation or to a conclusion of law, fairness is best served by allowing them to be pled. Conversely inappropriate pleading of similar facts that guarantees broadening of discovery and trial should be weeded out at the earliest opportunity and in the case of proposed amendments should not be allowed. In the words of Rule 26.01 such amendments will give rise to prejudice that cannot be compensated in costs. [Emphasis added.]

[11] Master MacLeod went on to explain the following at paras. 30-31:

The following principles emerge from the above analysis:

a) If similar facts will be material to a portion of the claim including punitive damages, they may be pleaded in order to give fair notice that they will form part of the discovery and will be part of the case at trial – see Jama,v. McDonalds Restaurants of Canada Ltd. & Hodson v. Canadian Imperial Bank of Commerce, supra; b) Similar facts that are mere evidence and are not in themselves material facts should not be pleaded as doing so offends Rule 25.06 (1) – see Marani v. Nesbitt Burns Inc. , supra; c) Similar facts that are not material and are irrelevant should be struck pursuant to Rule 25.11 (b) as scandalous, frivolous or vexatious but even relevant similar facts may be struck out under Rule 25.11 (a) if they will prejudice or delay the fair trial of the action. – see Brodie v. Thomas Kernaghan, supra and Doe v. Escobar [2004] O.J. No. 2760 (Master) d) Even in those cases where the similar facts are relevant and material, they should not be permitted if the added complexity arising from their pleading does not outweigh their potential probative value.

The process of weeding out and excluding inappropriate similar facts may take place at different stages in the action. One point is at the pleading stage. [Emphasis added.]

[12] The plaintiff takes the position that the proposed amendment puts forward facts and circumstances that are not intended nor properly characterized as similar fact evidence. The plaintiff concedes in his factum that such evidence is largely irrelevant and unnecessary to establishing the assault allegation against K.O.

[13] I acknowledge the plaintiff’s submission that evidence of K.O.’s previous difficulties and antisocial behaviours is arguably relevant to the level of supervision of K.O. that should reasonably have been expected from his parents, to avoid or mitigate such behaviours. However, even if K.O.’s previous behaviours might provide some information of the amount or nature of the required supervision by his parents, there remains the issue of whether the prejudice of starting such an inquiry would outweigh the probative value to be gained from such evidence. In assessing prejudice, consideration must be given to the time likely required to examine the previous incidents K.O. may have been involved in and the doubtful fairness of such an examination. The trial would be converted from an inquiry about one altercation between three boys on September 22, 2020, to a trial of multiple events occurring over K.O.’s life. It must be remembered that K.O. was a ten-year-old child when the altercation giving rise to this proceeding occurred and was possibly much younger when events raised by the proposed amendment occurred.

[14] I agree with the Defendants’ argument that weighing complexity against probative value at the pleadings stage must be informed by the impact of the pleading on both discovery and trial and by the purpose of the allegations.

[15] Master Egan considered factors that should be considered in the requisite weighing process in Prism Data Services Ltd. v. Neopost Inc., 2003 CarswellOnt 2814 (Ont. S.C.), at para. 9. The principles she proposed as part of her analysis were as follows:

(a) such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value; (b) similar acts are not probative if there is not a sufficient degree of similarity; (c) the similarity must be provable without a prolonged inquiry, although, inevitably, the litigation process will be lengthened to some extent as a result of proper similar fact allegations; (d) the added complexity should not lead to undue oppression or unfairness; and (e) if a system or scheme of conduct is alleged the past similar acts must have sufficient common features to constitute the system or scheme.

[16] It is apparent that an inquiry in the present case into the factors outlined by Master Egan in Prism Data would be a time-consuming exercise and a lack of similarity among the incidents or mitigating circumstances on K.O.’s part, or a variety of other factors, would greatly reduce any probative value the evidence may have.

[17] I accept the position taken by the Defendants as stated at paragraph 30 of their factum:

Permitting the amendments will also unnecessarily add to the complexity of the action:

(a) It will extensively prolong the discovery process, as it will extend discovery from the Defendant's interactions with strangers to the litigation; (b) An inquiring into the nature and validity of the similar fact allegations involves privacy interests of other persons, including minors; and (c) It might ultimately lead to not only one trial, but to several other trials with respect to whether the alleged tortious similar fact allegations occurred[.]

[18] In my view another factor properly considered by this court is the defendant K.O. is a ten-year-old child who has a legitimate privacy interest in the confidentiality and integrity of his own medical and school records. His parents should not be required to disclose such records except in compelling circumstances which in my view do not exist here.

Disposition

[19] While the proposed amendment may introduce material facts that are marginally relevant to the parents’ assessment of the risk their son K.O. may have posed to other children, the probative value of such evidence is clearly outweighed by the prejudice it creates for this proceeding, including increasing the complexity of the production and discovery process, possible diversion of the trial into an inquiry about K.O.’s behaviours on other occasions involving third parties in different circumstances, as well as a gratuitous invasion of the privacy interests of this child.

[20] The plaintiff’s motion to amend the Amended Statement of Claim is dismissed. The Defendants are awarded their costs of this motion which I fix in the sum $3,800 inclusive of HST and disbursements.

Associate Justice M. Fortier Date: April 11, 2024