Citation and Parties

CITATION: Rebello v. Ontario, 2022 ONSC 4094

DIVISIONAL COURT FILE NO.: 861/21

DATE: 2022-07-13

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Tanya Rebello, Plaintiff (Appellant) AND: Attorney general for ontario, premier of ontario, ministry of the attorney general counsel joanna chan, Defendants (Respondents)

BEFORE: Nishikawa J.

COUNSEL: Tanya Rebello, in person Adam Mortimer and Bhavinin Lekhi, for the Defendants

HEARD at Toronto: June 23, 2022 (by videoconference)

ENDORSEMENT

Overview and Procedural Background

[1] The Appellant, Tanya Rebello, has brought a number of actions against various parties, including the Premier of Ontario, government ministries, Crown servants, Hydro One, and Scotiabank. The claims broadly relate to an erroneous transfer of the Appellant’s licence plate and vehicle registration by Ontario, an investigation by the police related to harassment allegations, and allegations of a utility shut-off or tampering by Hydro One and Scotiabank.

[2] The Appellant brings this appeal of the decision of Associate Justice McGraw dated September 30, 2021, dismissing her motion to amend her Statement of Claim to add the Crown and various government ministries and ministers as defendants and to make related amendments to the statement of claim (the “Decision”). In the Decision, the Associate Justice dismissed the Appellant’s motion “without prejudice to her right to deliver a re-drafted Fresh as Amended Statement of Claim within 30 days…[.]” The Appellant seeks an order setting aside the Decision and an order granting leave to amend her Statement of Claim to add Her Majesty the Queen in Right of Ontario as a defendant.

[3] The procedural background regarding the four proceedings brought by the Appellant is detailed in the Decision and will not be repeated here.

The Appellant’s Motion

[4] In her motion, the Appellant sought leave to amend to add the following parties as defendants: Her Majesty the Queen in Right of Ontario (the “Crown”), the Minister of Transportation, the Ministry of Transportation for the Province of Ontario, the Minister of Government and Consumer Services, the Ministry of Government and Consumer Services for the Province of Ontario and Service Ontario (together, the “Proposed Defendants”).

[5] In addition, the Appellant sought leave to make related amendments, seeking various forms of declaratory relief, and adding allegations of conspiracy and intentional infliction of emotional distress, as detailed in the Decision.

[6] At the hearing of the appeal, the Appellant advised that she no longer seeks to appeal the Decision as it relates to adding the Ministries and Ministers as defendants, and seeks only to add the Crown as a defendant.

The Decision

[7] The Associate Justice dismissed the Appellant’s motion to add the Proposed Defendants. The Associate Justice held that the Ministries and Ministers were not proper parties to the amended claim. The Associate Justice adopted the reasoning in Deep v. Ontario, 2004 14527 (Ont. S.C.), which held that Ministries cannot be sued and that Ministers are not vicariously liable for the tortious conduct of other Crown servants since they themselves are servants of the Crown.

[8] In respect of whether the Crown should be added as a defendant, the Associate Justice stated, at para. 48 of the Decision, as follows:

In my view, the Plaintiff’s proposed addition of the Crown by amendment does not rise to the level of an abuse of process. Namely, I cannot conclude on the record before me that there is any collateral purpose for the amendment or purpose extrinsic to the litigation. It may be strategic or contrary to the CLPA, but this does not on its own constitute an abuse of process. In any event, as I am denying leave to add the Crown at this time for other reasons the issue is moot. Further, based on the wording of the CLPA and Catalyst, it appears that that at the very least, even if the court were to grant leave to add the Crown, the Plaintiff’s claims against the Crown for misfeasance and bad faith would be automatically stayed until she obtains leave regardless of when the claim arose. This is a separate inquiry which may be spoken to when and if it becomes necessary in these proceedings.[^1]

[9] The Associate Justice dismissed the motion to amend the statement of claim, finding that the Appellant simply stated legal conclusions without supporting facts and that she did not plead sufficient facts for her serious allegations of misfeasance in public office, conspiracy, and other intentional acts. The Associate Justice found, however, that on a generous reading, the claim stated a tenable cause of action in relation to the mistaken transfer of ownership of the Appellant’s vehicle. The Associate Justice held that the Appellant should have the opportunity to address the deficiencies by amending the claim. The motion was thus dismissed without prejudice to the Appellant’s right to deliver a re-drafted amended Statement of Claim within 30 days and without prejudice to have the action tried with an action against the Ontario Provincial Police.

Analysis

What is the Applicable Standard of Review?

[10] The appellate standards of review apply. Questions of law are reviewable on a standard of correctness. Questions of fact are reviewed on a standard of palpable and overriding error. Questions of mixed fact and law are also reviewed on a standard of palpable and overriding error, unless there is an extricable question of law, which is reviewed on a correctness standard: Housen v. Nikolaisen, 2002 SCC 33.

[11] Where a motion for leave to amend is refused on the basis that the pleading is legally untenable, the questions of law raised are reviewable for correctness.

Did the Associate Justice Err in Dismissing the Motion?

The Parties’ Positions

[12] The Appellant submits that the Associate Justice erred by refusing leave to add the Crown as a defendant because Crown counsel had admitted in correspondence and in court that the Crown is the proper defendant but later refused to sign a consent. The Appellant submits that proposed defendants should be added when they are proper parties.

[13] The Respondent submits that the Associate Judge identified the correct legal principles and ruled out the Appellant’s amendments – which go beyond simply adding parties – as legally untenable because they lacked sufficient particulars for her causes of action of misfeasance, conspiracy, bad faith, and other intentional acts.

Findings

[14] The Associate Justice referred to Rule 26.01 of the Rules of Civil Procedure and the legal principles applicable to a motion for leave to amend. The Associate Justice correctly noted that “amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action.” The Associate Justice further noted that the amendments must be tenable at law. The Associate Justice did not err in his application of the principles applicable to a motion for leave to amend.

[15] However, the Associate Justice did not make reference to or apply Rule 5.04(2), which specifically deals with amendments to add parties, and states as follows:

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[16] In Plante v. Industrial Alliance Life Insurance Co., 2003 64295 (ONSC), Master MacLeod (as he then was) set out the test for adding a party under rule 5.04(2) as follows:

a) The proposed amendment must meet all of the tests under Rule 26.01.

b) Joinder should be appropriate under Rule 5.02(2) or required under Rule 5.03. The addition of the parties should arise out of the same transaction or occurrence (Rule 5.02(2)(a)), should have a question of law or fact in common (Rule 5.02(2)(b)), or the addition of the party should promote the convenient administration of justice (Rule 5.02(2)(e)). Adding a party will be particularly appropriate if it is unclear which of the original defendant or the proposed defendant may be liable (Rules 5.02(2)(c) or (d)), or if it is necessary that the proposed defendant be bound by the outcome of the proceeding or his or her participation is otherwise necessary to allow the court to adjudicate effectively (Rule 5.03(1)).

c) Joinder should not be inappropriate under Rule 5.03(6) or 5.05. The addition of a party should not unduly delay or complicate a hearing or cause undue prejudice to the other party. In a case-managed proceeding, it may also be appropriate to withhold consent if it will cause significant disruption to the court-ordered schedule.

d) Addition of a party will not be permitted if it is shown to be an abuse of process. Abuse of process will exist where the addition of a party is for an improper purpose such as solely to obtain discovery from them, to put unfair pressure on the other side to settle, to harass the other party or for purely tactical reasons.

[Internal citations omitted.] See also, Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955.

[17] In my view, the Associate Justice erred in law in failing to apply the proper test to determine whether the Crown should be added as a defendant.

[18] In finding that the Ministries and Ministers could not be added as defendants, the Associate Justice found, at para. 39, that the “proper party in these circumstances is the Crown.” Moreover, the pleading deficiencies were not the basis for dismissing the motion to add the Crown as a defendant. The Associate Justice found that the Appellant had pleaded a legally tenable claim relating to the mistaken transfer of ownership of the Appellant’s vehicle, and granted leave to amend to add further particulars on the conspiracy and intentional torts. Having found that the claim stated a cause of action and that the Crown was the proper defendant, and having granted leave to amend to plead further particulars to support the intentional torts, the basis for dismissing the motion to add the Crown is unclear.

[19] Applying the factors to be considered under Rule 5.04(2), there was no evidence in the record of non-compensable prejudice to the defendants if the Crown were to be added. Adding the Crown as a defendant would not impact the Crown’s position that the other named defendants, the Premier and Ms. Chan, are not proper defendants. If anything, it would ensure that the claim proceeds against the proper defendant. Similarly, adding the Crown would not unduly delay the proceeding or result. In fact, the record showed that Crown counsel had previously advised the Appellant that the proper defendant was the Crown and that it would consent to an amendment of the statement of claim to name the proper defendant. Finally, the Associate Justice found on the record before him that the Appellant’s proposed addition of the Crown was not for a collateral purpose and did not constitute an abuse of process. Under the circumstances, there was no basis for dismissing the motion to add the Crown as a defendant.

[20] In respect of the Appellant’s motion for leave to amend to add the Ministries and Ministers, although the Associate Justice did not apply Rule 5.04(2), he did not err in finding that they were not proper parties. The Associate Justice correctly applied the principles articulated in Deep v. Ontario, at paras. 82-83, that Ministries are not suable entities at law and that Ministers cannot be vicariously liable for the tortious conduct of other Crown servants.

[21] I note that the motion before the Associate Justice was broader and lacking in clarity, and that the issue was significantly narrowed before me. I further note the Associate Justice’s observation that it was difficult to identify the proposed amendments because the Fresh as Amended Statement of Claim was not clearly marked to identify the amended portions. At the hearing before me as well, there were multiple versions of the Amended Statement of Claim and it was unclear which version was before the Associate Justice.[^2]

[22] At the hearing of the appeal, counsel for the Crown suggested that the appropriate approach would be for the Appellant to amend the Statement of Claim to add further particulars and then to bring a further motion to add the Crown. This position is untenable, given that the Appellant had already brought a motion to add the Crown, and would unnecessarily multiply steps in the proceeding.

Costs

[23] The Appellant also appeals the costs order below. The Associate Justice found that success on the motion was divided and granted costs in the cause in the amount of $3,000. Given that the motion to add the Ministers and Ministries was denied, I agree that success was divided. I find no palpable and overriding error in relation to the costs order.

Conclusion

[24] Accordingly, the appeal is granted. The Appellant is granted leave to add Her Majesty the Queen in Right of Ontario as a defendant. The remaining portions of the Associate Justice’s order remain in effect, except that the Appellant shall have 30 days from today’s date to serve her amended statement of claim with further particulars of the intentional torts.

[25] The Appellant seeks costs of the appeal on the basis that the Respondents delayed the motion and are “playing games” by changing lawyers and changing positions on whether they would consent to adding the Crown. The Appellant submitted a bill of costs for $10,000.00 but has provided no information regarding loss of remuneration as a result of having to prepare or appear for the appeal. The Appellant has incurred disbursements in the amount of $837.00. For comparison purposes, the Respondent’s costs on a partial indemnity basis total $4,095.00.

[26] I find that the Appellant is entitled to be reimbursed for her disbursements on the appeal and to an amount for costs based on her success on the appeal. In the circumstances, I find that a fair and reasonable amount is $1,500, including disbursements, and fix costs accordingly.

“Nishikawa J.”

Date: July 13, 2022

[^1]: In a subsequent decision of this court, Poorkid Investments Inc. v. Ontario, 2022 ONSC 883, Broad J. held that s. 17 of the Crown Liability and Proceedings Act, 2019 S.O. 2019, c. 7, Sched. 17 is unconstitutional and of no force or effect. The constitutionality of s. 17 was not at issue before the Associate Justice or in this appeal.

[^2]: Various versions of the amended statement of claim were included in the record on appeal. It was subsequently clarified that the proposed fresh as amended statement of claim that was before the Associate Justice was the version attached as Exhibit “N” to the affidavit of Gary Curtis in the Supplementary Motion Record of the Appellant dated May 10, 2021.