Court of Appeal for Ontario

Citation: Chimienti v. Windsor (City), 2013 ONCA 270
Date: 20130426
Docket: C56055

Before: Weiler, Sharpe and Rouleau JJ.A.

Between

Mark Chimienti and Patricia Chimienti
Plaintiffs (Appellants)

and

The Corporation of the City of Windsor, Windsor Police Services Commission, All Detectives of the Windsor Police Service, Constable Jane Doe, Constable John Doe and Kim Bertholet
Defendants (Respondents)

Counsel:
Kendal McKinney, for the appellants
Alexander R. Szalkai, for the respondents

Heard and released orally: April 19, 2013

On appeal from the order of Justice Steven Rogin of the Superior Court of Justice, dated August 13, 2012.

Endorsement

[1] The issue on this appeal is whether the motion judge erred in refusing to grant leave to the appellants to amend their statement of claim to allege malice and whether a named defendant should be substituted for Constables John Doe and Jane Doe.

[2] The order of Quigley J. was clear. It dismissed the action against the Corporation of the City of Windsor, Windsor Police Services Commission, and the individual police defendants (the WPS defendants)

[3] The appellants rely on the reasons of Quigley J. They argue that when those reasons are read as a whole, they indicate that although Quigley J. dismissed the claims in negligence as being out of time, he granted leave to amend to plead malice. The appellant did not return before Quigley J., and, pursuant to rule 59.06(1), ask him to amend his order dismissing the claim so as to allow him to plead allegations of malice. Nor did he bring a motion before another judge as suggested by Quigley J. and couple it with a motion to amend Quigley J.’s order. Rather, he chose to appeal the order dismissing the action against the WPS defendants. On that appeal, the appellant did not challenge the order of Quigley J. on the ground that it did not give him leave to amend to plead malice. The order of Quigley J. was confirmed by the Court of Appeal and it is now too late to challenge the validity of that order.

[4] Accordingly, the appeal is dismissed. Costs of the appeal are to the respondent and are fixed in the amount of $7,500 plus HST.

“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“Paul Rouleau J.A.”