Court of Appeal for Ontario

Date: April 16, 2019

Docket: C65128

Judges: van Rensburg, Benotto, Harvison Young JJ.A.

Between

Lloyd French Plaintiff (Appellant)

and

H&R Property Management Ltd. and Vitali Vytrykouch Defendants (Respondents)

Lloyd French, acting in person

Mark A. Freake, for the respondents

Heard: March 12, 2019

On appeal from the judgment of Justice James F. Diamond of the Superior Court of Justice, dated February 5, 2018, with reasons reported at 2018 ONSC 769.

Harvison Young J.A.:

Overview

[1] The appellant Lloyd French appeals from the dismissal of his action against the defendants following a trial. Although the appellant raises a number of grounds of appeal, the heart of the appeal is his submission that the trial judge erred in refusing to permit him to amend his pleadings during trial to plead negligence.

Factual Background

[2] The underlying dispute between the appellant and H&R Property Management Ltd. arose out of Mr. French's eviction from a residential apartment building managed by H&R. The other respondent, Vitali Vytrykush,[1] was employed by H&R as the property manager for the apartment building in question.

[3] On April 30, 2010, the appellant gave notice that he was terminating his tenancy, effective June 30, 2010. As a result, the respondent arranged showings of the apartment and found a new tenant. The appellant then sought to rescind his notice and refused to move out. The Landlord Tenant Board terminated his tenancy and required him to vacate his unit by July 31, 2010. The decision was upheld on review. The appellant still refused to move out. On August 24, 2010, the Sheriff posted a notice on his apartment door for eviction the following day. The appellant was also given notice that he was to remove his property from the apartment building by August 28, 2010.

[4] The appellant arrived to retrieve his property on August 27, 2010. When the respondents saw him remove a firearm, they asked him to leave, locked the door and called the police. Mr. French, in turn, alleges that he was assaulted by Mr. Vytrykush, without warning, and ordered to leave. He says that his three cats were in the apartment at that time. When he returned later that same day, he alleges that one of his cats, named "Pony", was gone. He returned on September 10, 2010 to pick up the rest of his belongings, by then in storage. He alleges many things were missing.

[5] Mr. French then commenced this action against the respondents. He sought damages for the assault allegedly perpetrated by Mr. Vytrykush and damages for the respondents' alleged breach of s. 41 of the Residential Tenancies Act 2006, S.O. 2006, c. 17 ("RTA"), arising from their failure to make his property available for him to retrieve for a period of 72 hours.[2] A core focus of Mr. French's statement of claim was the alleged loss of Pony, which Mr. French claimed had caused him significant emotional distress.

[6] A simplified rules trial took place over the course of three days in January 2018. On the first day of trial, in response to questions from both counsel for the respondents and the trial judge, it became clear that Mr. French was abandoning his assault claim and that he sought to assert a claim in negligence relating to the loss of Pony. He subsequently brought a motion under r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to amend his statement of claim. This motion was opposed by the respondents.

[7] The trial judge refused to allow the amendment, finding that Mr. French's negligence claim was statute-barred under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, sched B. The trial judge also dismissed Mr. French's remaining claim for breach of s. 41 of the RTA, as well as H&R's counterclaim for arrears of rent.

[8] Mr. French raises a number of grounds of appeal. He submits that the trial judge erred in:

1. dismissing his motion to amend the statement of claim to plead negligence;
2. concluding that the respondents had satisfied their statutory obligations under s. 41 of the RTA; and
3. refusing to admit the affidavit of his ex-wife into evidence at trial.

[9] I do not accept these submissions. For the reasons that follow, I would dismiss the appeal.

(1) Did the trial judge err in refusing to allow the amendment pursuant to r. 26.01 of the Rules?

[10] As this is Mr. French's core ground of appeal, and the issue arose in the course of trial, it is important to set out with some detail the factual context which gave rise to Mr. French's motion to amend his statement of claim.

[11] On August 25, 2011, Mr. French commenced this action against the respondents by way of statement of claim. He sought total damages of $95,000 (adjusted on consent at trial to $100,000, as noted below) pursuant to two causes of action, as particularized at para. 11 of his statement of claim:

The plaintiff asserts the material loss, the pain due to the physical assault and the severe emotional trauma caused by the assault and the loss of a longtime pet, was caused solely by the illegal actions of the defendants, Mr. Vytrykush, and the corporation, and are therefore in law responsible. The particulars of said responsibility due to their actions are as follows:

(a) The illegal physical assault is contrary to the Criminal Code of Canada and therefore speaks for itself.

(b) The defendants were also in contravention of the Residential Tenancies Act … s. 41(2), (3).

[12] At the outset of the first day of trial, Mr. French sought leave to amend his statement of claim to adjust the quantum of damages sought. He did not seek to make any other amendments to his statement of claim. The respondents consented to this amendment.

[13] Still on the first day, Mr. French expanded on his affidavit evidence in-chief and was cross-examined by counsel for the respondents. In short, Mr. French's evidence was that, when he returned to the apartment on August 27, 2010, Mr. Vytrykush assaulted him by shoving him out of the apartment, slamming the door in his face, and locking the door. He testified that Mr. Vytrykush yelled through the door that he was calling the police and Mr. French should leave the property immediately. Mr. French left without his three cats. When he returned later that day to retrieve his cats, Pony was gone.

[14] Mr. French further testified that he returned to retrieve his belongings from the storage unit on September 10, 2010. He was only allowed that one visit. Since Mr. French could not afford to rent a moving van again, he was only able to retrieve a small portion of his property. The rest of his property, he alleged, was lost.

[15] Mr. French was then cross-examined by counsel for the respondents. In the course of his cross-examination, Mr. French clarified that he was no longer seeking damages in relation to the alleged assault or the breaches of the RTA. He further clarified that the damages he was claiming for mental distress related to the "loss of [his] pet cat."

[16] At the conclusion of Mr. French's cross-examination, the trial judge sought to clarify exactly what claims Mr. French was still pursuing. Mr. French reiterated that he was not pursuing his claim for damages for assault, nor his claims for breach of the RTA. [3] After an extended exchange, Mr. French indicated that he was only pursuing a claim for damages arising from the loss of Pony, and that the loss flowed from the respondents' breach of a duty of care by leaving the apartment doors open while removing his property, which allowed Pony to escape.

[17] The trial judge indicated that, on his initial review of the statement of claim, Mr. French had not pled a claim in negligence. This led Mr. French to bring a formal motion to amend his statement of claim pursuant to r. 26.01 of the Rules, which was argued in conjunction with closing submissions at the end of trial. Mr. French provided the following proposed amendment in support of his motion to amend, which were to comprise paras. 11 (c) – (f) in his proposed amended statement of claim:

(c) The defendants knew the cats were in the apartment, having allowed them to stay, and agreeing to feed them until the plaintiff returned on August 27, 2010 to retrieve them and his household belongings.

(d) Knowing the cats were in the apartment and agreeing to allow them to stay for these two days, the defendants owed the plaintiff a duty of care to take reasonable precautions to ensure their safety.

(e) The defendants were in breach of that duty of care in keeping both the front door to the apartment and the balcony door open, allowing one of the cats, Pony, to escape even after the plaintiff asked twice for the doors to be closed.

(f) A reasonable person would be aware that if one of the plaintiff's pets went missing, he would suffer mental injury as a result.

[18] The respondents opposed the amendment. They took the position that negligence had never been pleaded – or at issue – in the 6.5 year lifespan of the litigation.

(a) The trial judge's decision

[19] The trial judge refused to allow the amendment. He noted that Mr. French had admitted that he had full knowledge of all the material facts upon which his claim in negligence was based by August 27, 2010, such that the amendment would be time-barred if it asserted a new cause of action. Thus, the issue was whether the "amendments were merely inserted by way of clarification of the original Statement of Claim and/or … [whether] there were sufficient material facts originally pleaded by [Mr. French] which, liberally construed, could nevertheless support a cause of action in negligence against the defendants": at para. 23.

[20] The trial judge found that Mr. French had not met his burden of demonstrating that the material facts already pled in the statement of claim could support a claim for negligence in relation to the removal of Mr. French's property, leading to the loss of his cat. In the trial judge's view, the material facts pled in relation to the assault could not support a claim in negligence, as a pleading of battery is a separate and distinct tort from negligence: at para. 24. Similarly, the material facts pled in relation to the alleged breach of s. 41 of the RTA could not support a claim in negligence. Section 41 of the RTA imposes certain obligations upon a landlord when it seeks to dispose of an evicted tenant's property. In particular, the landlord cannot sell, retain or otherwise dispose of a tenant's property before 72 hours has elapsed from the enforcement of the eviction order, and the landlord must make the property available to the former tenant at a "location close to the unit" during that time: at para. 25.

[21] The trial judge further noted, at para. 27, that the content of the proposed amendments underscored that the original statement of claim was deficient, and failed to plead sufficient material facts to support a claim in negligence:

There are no material facts pleaded in the original claim which could support a claim in negligence against the defendants. Ironically, the particulars raised by the plaintiff in his new paragraphs 11(c) through 11(f) are exactly the type of facts which could, in theory, support a finding of a duty of care and a breach of that duty. Their absence from the original claim only serves to highlight the fact that the new amendments are simply out of time.

(b) The parties' positions on appeal

[22] The appellant's position is that the trial judge's suggestion at trial that there was no cause of action in negligence pleaded came as a surprise because he had always thought of his action as claiming negligence, as the doors of the apartment had been left open on August 27, 2010 when he went to retrieve his belongings, allowing Pony to escape. Mr. French acknowledges that negligence was not expressly pleaded in the statement of claim, but argues it was implied throughout. He also points to the rest of the pleadings in the action, which he says indicate negligence was in issue from the beginning of the proceedings. For example, in the respondents' statement of defence, the respondents plead that "the door to the Apartment was consistently closed during August 27" and deny that Mr. French in fact had a third cat. Mr. French also notes that in his reply, he made express reference to negligence, stating:

When the plaintiff arrived at the apartment, and at all material times, both the front door, and balcony door were propped open wide. The plaintiff contends that this constituted negligence on the part of the defendants since they knew and even admit that there were pet cats in the apartment. The plaintiff also contends that this was the means for the non-fictitious Pony to go missing.

[23] The respondents state that they only understood there to be two causes of action – the claim for assault and the claim for breach of the RTA. They point to para. 11 of the statement of claim (outlined above), which particularizes Mr. French's claims. In the respondents' submission, these two causes of action have been the sole focus of the litigation since its inception. The putative claim in negligence was not raised during their examination of Mr. French during discoveries, their cross-examination of Mr. French at trial, nor the respondents' statement of law and authority delivered prior to trial. Further, while Mr. French's reply refers to the respondents' "negligence", rr. 25.06(5) and 25.08(2) of the Rules preclude the assertion of a "new ground of claim" by way of reply pleading.

[24] The respondents also argue that because the trial judge correctly articulated the applicable test to determine whether an amendment discloses a new cause of action, this court may not interfere with his finding in the absence of an error of law, an error in principle or a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

(c) Analysis

[25] In this case, there is no dispute that the material facts relied on by Mr. French in support of his negligence claim and proposed amendment were known to him as of August 27, 2010. As a result, if the proposed amendment is the assertion of a new cause of action, it is clear that it is statute-barred based on the expiration of the two-year limitation period provided by s. 4 of the Limitations Act, 2002: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 232 O.A.C. 146, at para. 24; United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, at para. 64.

[26] However, there is a distinction between pleading a new cause of action and pleading new or alternative relief based on the same facts as originally pleaded. An amendment is not the assertion of a new cause of action where the "original pleading… contains all the facts necessary to support the amendments… [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded": Dee Ferraro Ltd v. Pellizzari, 2012 ONCA 55, 346 D.L.R. (4th) 624, at paras. 4, 13-14; see also 1100997 Ontario Ltd v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 20-21; Davis v. East Side Mario's Barrie, 2018 ONCA 410, at paras. 31-32; Quality Meat Packers, at para. 65.

[27] The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), at p. 186:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.[4]

[28] The trial judge correctly articulated the test at para. 23 of his reasons, when he framed the relevant question as being whether "there were sufficient material facts originally pleaded by [Mr. French] which, liberally construed, could nevertheless support a cause of action in negligence against the [respondents]."

[29] I would not interfere with the trial judge's conclusion that, even reading the statement of claim generously, Mr. French failed to plead the requisite material facts to support a claim in negligence.

[30] It was open to the trial judge to conclude that the proposed amendment was not merely an "alternative claim for relief" or a "different legal conclusion" based on the facts as already pled, nor the addition of further "particulars" of an allegation already pled, but rather the assertion of an entirely different cause of action.

[31] To begin, the statement of claim does not contain the material facts necessary to ground a claim in negligence. The statement of claim does not plead facts that would support the existence of a duty on the part of the respondents to use reasonable care to prevent Mr. French's cats from escaping in the course of removing his property from the unit. Nor does the statement of the claim include facts that would support the breach of any such duty.

[32] The original claim contained none of the alleged material facts which Mr. French sought to introduce through his proposed amendment. These included:

• the respondents' knowledge that the cats were in the unit;
• the undertaking to care for the cats;
• the breach of duty in leaving the unit's doors open; and
• the foreseeability of harm to Mr. French.

[33] I agree with the trial judge that Mr. French's proposed amendment is not an "alternate claim for relief" or a "different legal conclusion" based on the facts as already pled. Nor is it merely an insertion of additional "particulars" based on an allegation already pled. Rather, the proposed amendment seeks to introduce new material facts and to assert a new cause of action.

[34] This conclusion is further reinforced by the particularization at para. 11 of the statement of claim of two specific causes of action: (1) the assault claim; and (2) claim for breach of the RTA. Read as a whole, the statement of claim sets out the material facts in support of those two claims, and those two claims alone. It does not set out material facts in support of a claim for negligence. In this vein, to allow the amendment would be to allow Mr. French to pursue a "fundamentally different claim based on facts not originally pleaded": North Elgin, at para. 23.

[35] While the word "negligence" appears in Mr. French's reply, the respondents are correct that it is impermissible to assert a new claim by way of reply. In any event, the use of the word "negligence" by itself is insufficient; there must be material facts pled that would support negligence as a cause of action. Similarly, the fact that the respondents pled in their statement of defence some material facts that, if initially pled by Mr. French, could support a negligence claim cannot be used to cure the deficiencies in Mr. French's statement of claim.

[36] For these reasons, I would not give effect to this ground of appeal.

(2) Did the trial judge err in concluding that the respondents had satisfied their statutory obligations under s. 41 of the RTA?

[37] The trial judge dismissed Mr. French's claim for breach of s. 41 of the RTA. He found that the respondents had complied with their statutory obligations under s. 41 of the RTA because – regardless of whatever had occurred on August 27, 2010 – Mr. French's belongings were retained on site and available to him to pick up for a 72 hour period (and, in fact, beyond). He noted that Mr. French had returned to the apartment building in September to retrieve his belongings and accepted Mr. Vytrykush's evidence that most, if not all, of Mr. French's property had been removed from storage by the end of September: at paras. 35-38.

[38] On appeal, Mr. French argues the trial judge erred in this conclusion. Mr. French says that after he was prevented from removing his property on August 27, he was only allowed to return to the apartment building to retrieve his belongings once, on September 10. Since he was unable to rent a moving truck, he was forced to leave most of his belongings behind.

[39] In effect, Mr. French repeats the evidence he gave a trial. His version of events was rejected by the trial judge, who accepted Mr. Vytrykush's evidence that Mr. French had, in fact, retrieved his property from storage. Indeed, even on Mr. French's own evidence (repeated here on appeal) he was given access to his belongings for a period in excess of the 72 hours mandated by s. 41 of the RTA. There is simply no basis for this court to interfere with the trial judge's conclusion that the respondents complied with s. 41 of the RTA, and I decline to do so.

(3) Did the trial judge err by refusing to admit his ex-wife's affidavit into evidence at trial?

[40] At trial, Mr. French sought to introduce into evidence an affidavit sworn by his ex-wife. The purpose of her evidence was to establish that Mr. French owned a third cat named "Pony" (which had been denied by the respondents in their statement of claim) and certain other property.

[41] According to Mr. French, Ms. French was too ill to attend trial and testify in person. In the course of oral argument on the appeal, counsel for the respondents advised that while he had been willing to agree to cross-examination by video-conference, he was not willing to agree to the admission of Ms. French's affidavit without the opportunity to cross-examine her on it. Mr. French did not make the necessary arrangements in advance of trial to have Ms. French cross-examined by video-conference. Ultimately, on the second day of trial, after several unsuccessful attempts to reach Ms. French, Mr. French withdrew the affidavit.

[42] On appeal, the appellant argues that the trial judge erred by not allowing Mr. French to introduce Ms. French's affidavit into evidence, notwithstanding that she was not available for cross-examination.

[43] I see no merit in this argument. While Mr. French raises issues as to the respondents' technical compliance with r. 76.12(3) of the Rules, I am satisfied that Mr. French had ample notice of the respondents' intention to examine Ms. French. Further, there was no prejudice to Mr. French in not admitting the affidavit, as the trial judge accepted that Mr. French had a third cat named Pony – a primary reason, if not the overriding reason, that Ms. French's affidavit was tendered in the first place. While Ms. French would also have provided evidence that Mr. French owned certain other items, the trial judge simply rejected that the respondents had breached s. 41 of the RTA in a manner leading to the loss of any of those items. Ms. French's evidence would have had no effect on the outcome of trial.

Conclusion

[44] For these reasons, I would dismiss the appeal with costs in the all-inclusive amount of $10,000.

Released: April 16, 2019

"MLB"

"Harvison Young J.A."

"I agree K. van Rensburg J.A."

"I agree M.L. Benotto J.A."

Footnotes

[1] Mr. Vytrykush is misnamed in the statement of claim and style of cause as "Vitali Vytrykouch".

[2] Mr. French also asserted claims for breach of ss. 25 and 26 of the RTA, but withdrew these claims at trial.

[3] While Mr. French said he was not seeking damages for the respondents' alleged breaches of the RTA, he resiled from this position during closing submissions and indicated that he was still seeking damages for breach of s. 41 of the RTA. As a result, the trial judge went on to deal with this claim on its merits.

[4] This statement of the law has been adopted by this court in East Side Mario's, at para. 32, and in North Elgin, at para. 20.