[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Auciello v. La, 2024 ONSC 618
COURT FILE NO.: DC-23-205
DATE: 20240129
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
RE: VITO AUCIELLO and NETWORK CASH MART LTD., Appellants
-and-
THAN QUANG LA, Respondent
BEFORE: FL Myers J
COUNSEL: Vito Auciello, for the Appellants
Marshall Reinhart, for the Respondent
HEARD: January 11, 2024
ENDORSEMENT
Overview
[1] The plaintiff Vito Auciello moves to extend the time for appeal and appeals from the order of Associate Justice Brown dated July 5, 2022, the costs decision dated October 26, 2022, and two case management endorsements dated October 26, 2022 and April 19, 2023 respectively.
[2] At its core, Mr. Auciello sought to amend his statement of claim. The Associate Justice dismissed the plaintiff’s motion on the basis that it was brought too late in the day.
[3] I do not understand why the proposed amendments could not have been made the subject of further examinations for discovery by the defendant, if he wished to do so, with no other effect at all on the fairness of the trial of this action. In fact, the extra examinations by the defendant, if desired, could readily have been held and completed within the five months over which the Associate Justice reserved his decision, the next nearly four months it took to resolve costs, and the additional five months it took to impose a new deadline for the plaintiff to set the action down for trial.
[4] In his factum before the Associate Justice, the defendant recognized that some further discovery on the proposed amendments was a realistic outcome. He sought an order for costs of the process to ameliorate the prejudice of that further step. He submitted:
- In the event this Honourable Court determines that the amendments should be allowed, it is submitted that the amendments be allowed "on such terms as are just". Because r. 26.01 of the Rules of Civil Procedure mandates amendments at any stage of the action, it is open to being utilized unreasonably. In the formulation of just terms, there should be no encouragement to others. It is further submitted that, in the circumstances, "just terms" require that the Plaintiffs to pay solicitor-and-client costs of the Defendant occasioned by the motion, fresh pleadings, production and discovery, in any event of the cause. To the extent that those costs can be estimated at this time, they should be paid before any amendments are permitted.
[5] In fact, the plaintiffs could have been ordered to set the action down for trial forthwith on making the amendments to the pleading to leave the defendant with the right to conduct further discoveries, if desired, while the action climbed the trial list.
[6] The trial would have been heard by now.
[7] Instead of allowing amendments on such terms as are just, the parties are now two years further down the road with the action not yet set down for trial because the pleadings are not yet finalized. The delay lamented by the Associate Justice has been exacerbated.
[8] A party that wants to avoid delay and get a matter heard, cannot put the other side through technical hoops at every step. Should he choose to do so, it does not lie readily in his mouth to complain about delay.
[9] It is not lost on the defendant however, that the plaintiffs are self-represented. While Mr. Auciello does an admirable job of learning and articulating the applicable law and procedure, it takes him time and often a few stutter-steps to do so in a technically proper manner.
[10] For example, Mr. Auciello initially brought this appeal to the Court of Appeal rather than to a single judge of this court. He was corrected by a motion judge in the Court of Appeal. The defendant does not consent to the late filing of appeal now and required Mr. Auciello to move for leave to extend the time to appeal here.
[11] Similarly, the court previously dismissed this action for delay. By administrative error the court did not provide the required notice to Mr. Auciello to allow him to move for a status hearing. The defendant required Mr. Auciello to move to extend the time; which he did – successfully.
[12] I am not saying that the defendant has committed any wrongful misconduct. The duty to help a self-represented party understand and navigate the process does not necessarily include a positive requirement to waive procedural rights. However, where a party puts the other side to the cost and delay of technical requirements that lack any substantive content, the lens for assessing prejudice and delay needs sharp focus.
Extension of Time
[13] The motion to extend the time for the appeal is granted. Mr. Auciello demonstrated an intention to appeal right away. The delay is largely explained by the time spent by Mr. Auciello in the Court of Appeal.
[14] The key part of the test on a motion to extend the time for an appeal turns on an assessment of the likely merits of the proposed appeal. That was the principal argument made by the responding party at the hearing of this motion/appeal. As I disagree with his submissions that the appeal lacks merit, there is no reason to refuse to grant leave to extend the time as sought.
[15] Perhaps this too would have been a motion to which the defendant could have consented had he been concerned about obtaining an efficient and affordable resolution on the merits. Instead, Mr. Auciello was put to delivering a lengthy affidavit in support of the motion to extend time to get all of his facts before the court.
The Appeal Affidavit
[16] Mr. Auciello purported to deliver an affidavit critiquing the decisions of the Associate Justice from which he appeals. This affidavit was not admissible on the appeal without leave to file fresh evidence.
[17] To the extent that the further affidavit contained facts, almost none of them were new or unavailable at the time of the hearing before the Associate Justice. To the extent that the affidavit contained argument concerning the Associate Justice’s decisions, the place for that is in a factum rather than an affidavit.
[18] Accordingly I have not considered Mr. Auciello’s new affidavit on the appeal.
The Procedural Facts
[19] I only recite facts to the extent needed for the resolution of the appeal. I am not setting out the entire scope of the pleadings and issues between the parties.
[20] In 2014, when the claim commenced, Mr. Auciello and Mr. La owned adjoining buildings. Mr. Auciello’s building was a single story. It has a rooftop patio. Mr. La’s building has two stories. The second floor of the adjoining wall of Mr. La’s building overlooks Mr. Auciello’s rooftop patio.
[21] The essence of Mr. Auciello’s lawsuit is that he says that Mr. La had installed a satellite dish and exhaust vents on the adjoining wall in breach of Mr. Auciello’s rights. In addition to invading his air rights, Mr. Auciello pleads that the exhaust vents emit fumes from a kitchen over Mr. Auciello’s roof that interfere with his enjoyment of his patio. Moreover, the exhaust vents and windows in the adjoining wall above Mr. Auciello’s roof destroy the wall’s character as a firewall.
[22] Mr. Auciello pleaded that these improprieties affect both his present rights to use his building and the potential development value of his property including its exploitation of its maximum air rights. The simple existence of windows and vents on the adjoining wall, he submits, could require him or a successor to include setbacks in any redevelopment plans. He submits that the hypothetical loss of floorplate size or density caused by the defendant’s holes in the adjoining wall, decreases the value of his land.
[23] Mr. Auciello sought $500,000 damages, an injunction prohibiting Mr. La from trespassing, and a mandatory order requiring Mr. La to remove the exhaust vents. Mr. Auciello also sought $100,000 in damages for loss of enjoyment of his land in the alternative.
[24] Mr. La removed the satellite dish and exterior vent stack that overhung Mr. Auciello’s roof within weeks of the commencement of the claim. Mr. La pleaded that he installed the venting for a tenant’s kitchen in May, 2014 and that he did so without stepping foot on Mr. Auciello’s property. Mr. La has subsequently delivered two affidavits in which he swears that despite his pleading, the venting had already been installed when he bought his building in 2000.
[25] Mr. Auciello makes much of the inconsistency between Mr. La’s pleading and his evidence. Associate Justice Jolley has already warned the defendant that he is bound by his statement of defence unless he moves to withdraw an admission under Rule 51.05 of the Rules of Civil Procedure. The only potential relevancy of this issue is that the defendant has a motion to amend its pleading yet to come despite his opposition to allowing the plaintiffs to amend their pleading.
[26] The plaintiffs were represented by counsel initially. Nothing of consequence occurred in the action before counsel had himself removed from the record and Mr. Auciello obtained leave to represent his corporate plaintiff in 2016/2017.
[27] Mr. Auciello ignores the lost two years of 2014 - 2016 in his assessment of the delay in his prosecution of the lawsuit. But he delivered evidence that was accepted by the Associate Justice explaining the problems he has encountered moving the action forward since taking over carriage.
[28] I mentioned already the dismissal of the claim and the need for Mr. Auciello to move to reinstate it. That only took about a month. But, in reinstating the action, Associate Justice Jolley also required the parties to mediate before going to examinations for discovery.
[29] Mr. Auciello says the defendant withheld from him until just days before the mediation the fact that Mr. La had sold his building in 2019 to a third party. With Mr. La no longer owning the building, a mediation designed to find a way for neighbours to live together or for one to buy the other out was for naught. The mediation therefore failed.
[30] Here again, Mr. Auciello submits that the defendant has not dealt with him fairly or properly by failing to disclose an important fact that undermined the purpose of Associate Justice Jolley’s order sending the parties to mediation before examinations for discovery. Again, he submits, that the defendant caused unnecessary and unhelpful cost and delay.
[31] The pandemic hit in mid-March, 2020. The scheduling of regular, non-urgent motions before the court was affected for several months.
[32] Nevertheless, the parties held examinations for discovery. Mr. Auciello was required to move on refusals and undertakings. In an endorsement dated August 17, 2021, Associate Justice Jolley found that the defendant’s lack of timely disclosure of his sale of the property was not a pleaded issue in the proceeding. She said that it might go to costs after trial. She ordered the defendant to provide a few pieces of additional information but dismissed the bulk of the relief sought by Mr. Auciello.
[33] In discussing Mr. Auciello’s expressed desire to amend his claim and the timing for setting the action down for trial, Associate Justice Jolley held:
The action has not been set down and the plaintiff requests a further extension so that he may have the balance of this motion heard. I am prepared to grant a final extension, with the consent of the defendant, to 31 March 2022. While the plaintiff wishes to pursue the balance of his motion, this action is seven years old. He may wish to consider proceeding to trial on the material he has. If he decides to proceed with the motion, he must bring it as soon as possible so that it is heard and dealt with before the expiry of the set down date.
[34] Mr. Auciello brought his motion to amend the statement of claim in October, 2021. Associate Justice Brown heard the motion to amend on January 25, 2022. This was before the set down date of March 31, 2022 as required by Associate Justice Jolley.
[35] After the hearing on January 25, 2022, the Associate Justice reserved his decision.
[36] The set down date of March 31, 2022 came and went as did the three-month period in which the Associate Justice was required to deliver his decision under s. 123 of the Courts of Justice Act.
[37] Mr. Auciello complained to the Regional Senior Judge and to the Chief Justice of the Superior Court of Justice about the length of time being taken by the Associate Justice to deliver a decision. Mr. Auciello did not bring a motion to the Chief Justice for a re-hearing under s. 123 (6)(b) of the statute.
[38] In late May, 2022, the Regional Senior Judge wrote to the parties to advise that, as the delegate of the Chief Justice, he extended the time for the Associate Justice to release his decision to June 7, 2022.
[39] The Associate Justice released a decision dismissing the motion on July 7, 2022.
The Timing of the Release of the Decision
[40] Mr. Auciello relied on the delay by the Associate Justice in apparent violation of s. 123 of the Courts of Justice Act to submit that he has been denied justice and fairness by the court.
[41] In support of his concerns about the conduct of the Associate Justice, Mr. Auciello points as well to the Associate Justice’s handling of costs.
[42] At para. 39 of his decision, the Associate Justice allowed the successful defendant to deliver costs submissions within 21 days (i.e., by July 28, 2022). Thereafter, he allowed Mr. Auciello a further 14 days to respond (i.e., by August 11, 2022).
[43] Not hearing from the Associate Justice, Mr. Auciello moved for relief to adjourn the trial and other steps pending the release of the costs decision by the Associate Justice and pending the appeal of the Associate Justice’s decision to refuse leave to amend.
[44] The motion was scheduled for October 26, 2022.
[45] Mr. Auciello says that with no costs decision having been released and the date of the motion approaching, he and the defendant’s counsel agreed to adjourn the motion pending the release of the costs decision.
[46] The Associate Justice released his costs decision dated October 26, 2022. Thereupon the defendant contested Mr. Auciello’s request to adjourn the motion on October 26, 2022. The Associate Justice found, among other things, that the question of the timing of the release of the costs decision was moot because he had released it that day.
[47] I am not finding facts about what occurred or whether the defendant’s counsel changed position. But I understand Mr. Auciello’s complaint that he felt sandbagged by the combination of the last-second release of the costs decision and being forced to proceed with his motion that day.
[48] I reject any hint of collusion between the Associate Justice and the defendant’s counsel. Moreover, the timing of the release of the various decisions by the Associate Justice does not affect the validity of the decisions that he made. The appeal stands or falls on the assessment of the merits of the decisions on the standard of review discussed below.
[49] The goal of the civil justice system recognized by the Supreme Court of Canada is to provide fair dispute resolution to the parties. That requires efficient and affordable proceedings.[^1]
[50] In this case, the appearance of efficient justice not being done reflects poorly on the court. The ability of the court to meet the goals of efficiency, affordability, and fairness suffers where there is so much delay in deciding a routine civil motion. Much has been written elsewhere about the lack of judicial appointments and the under-resourcing of the court. But still, the vast bulk of judges and associate judges keep the wheels of civil justice turning by dint of hard work and putting the needs of the parties first and foremost to ensure the timeliness of their decisions.
The Amendments Sought
[51] Despite filing a great mass of material for the motion to extend the time to appeal and on the appeal, Mr. Auciello did not provide me with a copy of his draft amended statement of claim that was before the Associate Justice. I appreciate that Mr. Reinhart saw this and provided the draft pleading in his responding material. That is the type of appropriate assistance that participants in the civil justice system are encouraged and required to provide to self-represented parties.
[52] Although I will only deal with four principal amendments requested, Mr. Auciello made several more than that. At para. 12 of his decision, the Associate Justice allowed a number of amendments that were not opposed by the defendant. These included:
a. correcting a typographical error in the spelling of the defendant’s name in the title of proceedings; and
b. deleting requests for injunctive relief that were no longer available against the defendant after he sold his building.
[53] The Associate Justice set out correctly the legal tests that apply on the motion to amend the statement of claim. He wrote:
[14] Rule 26.01 of the Rules of Civil Procedure provides as follows:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by cost or an adjournment
[15] The principles that apply on a motion for leave to amend under Rule 26.01 are well established:
o The rule is mandatory. The court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: Klassen v. Beausoleil, 2019 ONCA 407, at para. 25.
o The expiry of a limitation period is one form of non-compensable prejudice. A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period: Klassen at para. 26; Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3, at para. 24
o An amendment will be statute-barred if it seeks to assert a new cause of action after the expiry of the applicable limitation period. In this regard, the case law discloses a "factually oriented" approach to the concept of a "cause of action", namely, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person: Klassen, at para. 27; 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, at paras. 19-23, 33
o An amendment does not assert a new cause of action, and therefore is not impermissibly statute-barred, if 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. Klassen, at para. 28, North Elgin, at 20-21.
o The court may refuse an amendment where it would cause prejudice. The prejudice must flow from the amendment and not some other source. 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, absent evidence to the contrary: Klassen, at para 31 1588444 Ontario Lid dba Alfredo's et al v State Farm Fire and Casualty Company, 2017 ONCA 42 [Punctuation is in the original.]
(a) The New Plaintiff
[54] Applying these principles, the Associate Justice declined to allow Mr. Auciello to add into the action a new corporate plaintiff owned by him. The proposed new plaintiff occupies the building next door to Mr. Auciello’s building. It shares access to the rooftop patio on the building that is the subject of this proceeding.
[55] The Associate Justice held that the claims of the proposed new plaintiff were brought well past the expiry of the two-year limitation period. Mr. Auciello did not provide evidence to show any basis to delay the limitation period such as a discoverability issue under ss. 4 and 5 of the Limitations Act, 2002, SO 2002, c 24, Sch B.
[56] As an alternative, the Associate Justice held that the proposed amendment was brought too late as discussed below.
(b) The Windows and Venting System
[57] The Associate Justice declined to allow amendments to allege there are "five 5 illegally installed windows cut through the south Firewall compromising the firewall". Similarly, he declined to allow proposed amendments to refer to the defendant’s “venting system.” He held that these were new facts and were not accompanied by pleadings of how these windows or venting system encroached on the plaintiffs’ building or any damages from them. But he recognized that the plaintiffs claimed that the defendant’s vents and windows affected their use of their air rights and hence diminished the development potential and value of the plaintiffs’ land.
[58] The Associate Justice held that the allegations concerning windows and the venting system asserted new causes of action brought after the expiry of the limitation period. He held that “[t]hese are not amendments that simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded.”
[59] The Associate Justice also assessed the prejudice caused by the plaintiffs’ delay in asserting an amendment to add windows and the venting system to the claim. He held:
[27] In my view, the circumstances relevant to these particular amendments aggravate the prejudicial impact of the delay. The Plaintiffs initiated an action in 2014, primarily in nuisance, relating to allegedly encroaching exhaust vents and a satellite dish. Within weeks the Defendant removed the encroaching items and pleaded such removal in their defence. The Plaintiffs could have responded to the removals at that time, and sought to amend their Statement of Claim to add claims relating to the Windows and Venting System. In my view, for the Plaintiffs to wait over 7 years, after documentary and oral discoveries, a motion on refusals, an administrative dismissal and reinstatement, and mediation, when the action is now otherwise ready for trial, verges on an abuse of this court's process. [Emphasis added.]
(c) References to the “Buyer”
[60] The Associate Justice found that the plaintiff’s proposed references to an unnamed buyer of the defendant’s building were not permissible. He found that the references were ancillary to the proposed references to the windows and the venting system that he had already rejected. He also found the proposed references pleaded evidence and argument that were not proper under Rule 25.06.
[61] To the extent that any of the proposed references were not connected to the windows and venting system, the Associate Justice held that, like all of the proposed amendments, they were too late in light of the presumption of prejudice that was not refuted by the plaintiff.
(d) Amendments to Specify Heads of Damages to the Prayer for Relief
[62] Mr. Auciello proposed to replace his claims for an injunction with claims for further damages. He asked to add to the prayer for relief claims for, “"punitive damages, loss of rental income, loss of business income, loss of personal income and devaluation of the Plaintiffs lands."
[63] The Associate Justice held that the plaintiffs already made a claim for the loss of value of their land in the body of the existing statement of claim. He therefore held that there was no need to add that specific claim to the prayer for relief in para. 1 of the pleading.
[64] The Associate Justice recognized that the proposed claims for different heads of damages are not “new claims” within the meaning of the case law cited above. He also found that, read generously, the existing statement of claim already pleaded facts needed to support the additional relief sought.
[65] Nevertheless, he refused to grant the plaintiffs leave to amend the statement of claim to add the new claims to the prayer for relief because they were too late. He held:
[34] However, as with the other proposed amendments to the Statement of Claim as discussed above, I find that the passage of more than seven years from the issuance of the Statement of Claim, coupled with the lack of any explanation or justification for the delay in asserting these new heads of damages, gives rise to a presumption of non-compensable prejudice to the Defendant and I deny leave to amend on that basis.
Jurisdiction
[66] The appeal is from an order refusing leave to amend a pleading. It is also from the content of case management orders. It is partly in reference to a final order and partly in reference to interlocutory orders.
[67] An appeal from an interlocutory order of an associate judge lies to a judge of the Superior Court of Justice in accordance with s. 17 (a) of the Courts of Justice Act, RSO 1990 c C.43. By contrast, an appeal from a final order of an associate judge lies to the Divisional Court in accordance with s. 19 (1)(c) of the Courts of Justice Act.
[68] Pursuant to s. 21 (2)(a) of the statute, the appeal from the final order of the associate judge in this court may be heard by a single judge. Subsection 19 (2) of the statute allows for appeals that lie both to the Superior Court and to the Divisional Court to be combined and heard in the Divisional Court. I can therefore hear both appeals as a single judge sitting in Divisional Court.
[69] Otherwise, as I am also a judge of the Superior Court of Justice, I would hear both appeals while simultaneously wearing both jurisdictional hats as a single judge of both respective courts.
[70] The parties were also content that the motion and appeal be heard by me alone.[^2]
Standard of Review
[71] There is no disagreement about the applicable standard of review. The standard of review on an appeal from a judge was set by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33. The same standard applies to appeals from decisions of an associate judge. See: Zeitoun v. Economical Insurance Group, 2009 ONCA 415.
[72] Under the Housen standard of review, the appeal court will review without deference decisions by an associate judge on questions of law. Decisions on issues of law must be correct. But, where a finding of an associate judge is challenged on a question of fact or on the applicability of the law to the facts as found (i.e. a questions of mixed fact and law), then the appeal court will generally defer to the findings of the associate judge.
[73] Findings of an associate judge on questions of fact and mixed fact and law will be overruled only where the associate judge made a palpable and overriding error in making the challenged findings.
[74] In Waxman v. Waxman, 2004 39040 (ON CA), at para. 296, the Court of Appeal describes a palpable error as follows:
A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
[75] An overriding error is one that vitiates the challenged finding. See: Waxman at para. 297.
[76] That is, under the applicable standard of review, I am required to defer to the Associate Justice’s findings of fact and mixed fact and law unless he made an error that is both practically obvious and important to the outcome.
Analysis
[77] The Associate Justice made no errors of law. He set out the correct legal test as quoted above. The issue is whether he made any palpable and overriding errors of fact or applying the law to the facts as found.
[78] I agree with the Associate Justice’s refusal of leave to add claims by a new corporate plaintiff. The limitation period has long since expired given that Mr. Auciello is the principal of the proposed new plaintiff. There is nothing in evidence and, frankly, no basis imaginable, in which the causes of action sued upon in 2014 would not have been discoverable by the proposed plaintiff at least by then.
[79] I therefore uphold this refusal of leave to amend without reference to the alternative ground of delay that I deal with below.
[80] The Associate Justice’s handling of the windows and venting system is an example of a palpable and overriding error. The plaintiffs’ proposed plea that the defendant’s windows and venting system contributed to the loss of development potential and hence the value to their land was simply not new.
[81] Para. 9 of the plaintiffs’ Reply and Defence to Counterclaim already provides:
- The Plaintiffs, Auciello and Network state that the punctures in the firewall as the windows that were installed in the firewall continue to cause a nuisance and continue to prevent the Plaintiff's from developing their lands.
[82] Mr. Reinhart conceded during argument that the pleading concerning the defendant’s windows was not new. To uphold the dismissal of this part of the motion, he relied only on the Associate Justice’s alternative finding concerning the prejudice caused by the plaintiffs’ delay in moving to amend the claim.
[83] The same is true of the plaintiffs’ effort to make amendments referring to the defendant’s “venting system”. This is not something new or different. In his statement of defence, the defendant understands that he is sued in relation to exhaust emitted from his tenant’s kitchen. He pleads that in 2014 he added “exhaust pipes” for the tenant. Associate Justice Jolley discusses this aspect of the pleading in her August 16, 2021 decision.
[84] The Associate Justice seems to have been of the view that the existing claims related to fumes from the kitchen vents was cured when the defendant removed the external tubing that protruded from the common wall shortly after being sued. But, the plaintiff’s proposed reference to the defendant’s “venting system” is to the same fumes coming out the same hole(s) in the wall.
[85] The Associate Judge was simply in error in finding that the proposed references to windows and the venting system were new facts and therefore new causes of action. It is plain on the record that this was not the case. Admittedly, the plaintiffs’ pleadings are not pristine examples of the finest pleading technique required by the old forms of pleading. But, the Associate Justice recognized, as do I, that the pleadings must be approached generously to avoid dismissing potentially meritorious claims for overly technical reasons.
[86] The defendant, Associate Justice Jolley, and I are all able to discern from the face of the existing pleadings, and the evidence that was properly admitted below, that the plaintiffs’ complaints are and have always been with respect to the fumes emitted through the alleged firewall, the effect of holes for vents and windows having been cut through the alleged firewall, and on the consequent potential negative effect of these facts on the development potential and value of the plaintiffs’ land. The proposed amendments are palpably not new facts and therefore do not represent new causes of action brought after the expiry of the limitation period.
[87] Again, I will deal with the alternative ground of prejudice from the plaintiffs’ delay below.
[88] The Associate Justice rejected proposed references to the “buyer” of the defendant’s building because they were proposed in connection with the pleading concerning windows and the venting system that he had already rejected. As I have indicated that the rejection of the windows and venting system amendments was an error, that cannot be a ground for rejecting these proposed amendments.
[89] The Associate Justice also rejected the proposed amendments that concerned the “buyer” because they were not pleaded properly and amounted to evidence in breach of Rule 25.06.
[90] I agree with the Associate Justice or, at least, I do not find that his pleadings decision was an error of law or a palpable and overriding error of fact or mixed fact and law.
[91] There is no point trying to assess finely when a pleading crosses into impermissible evidence when there is ample caselaw that also provides that anything can be pleaded that can be proven at trial.
[92] The point is that with the rejection of leave to amend turning on pleadings grounds, subject to the discussion of prejudice below, Mr. Auciello is free to try again if he can plead the facts relating to the buyer in an appropriate manner. Perhaps the defendant will consent to a further amendment if Mr. Auciello is able to do so.
[93] The validity of the proposed amendments relating to the windows and exhaust system and the amendments proposed to add heads of damages to the prayer for relief all fall to be determined on the question of prejudice.
[94] Prejudice under Rule 26.01 is harm caused by an amendment that cannot be compensated in costs or by an adjournment.
[95] The Associate Justice held that there has been inordinate delay in the prosecution of this action. Seven years is too long. After all, the Rules provide for cases to be dismissed automatically if they are not set down for trial after five years. On the other hand, the Rules allow for extensions of time premised on the justice of the case.
[96] The Associate Justice made no assessment of whether the plaintiffs bore responsibility for the entire period of the delay.
[97] In assessing prejudice in para. 27 of his decision quoted above, the Associate Justice repeats his error of saying that the action related only to the external satellite dish and the external vent tubing that was quickly removed by the defendant in 2014. He then holds:
In my view, for the Plaintiffs to wait over 7 years, after documentary and oral discoveries, a motion on refusals, an administrative dismissal and reinstatement, and mediation, when the action is now otherwise ready for trial, verges on an abuse of this court's process.
[98] But if the proposed amendments are just clarifying and do not add new facts or new causes of action, why are they verging on abusive? He does not say. Associate Justice Jolley warned the plaintiffs that the action was getting old and required them to move before the March 31, 2022 set down date expired. They did so.
[99] How is it an abuse of process to specify in the prayer for relief a claim for loss of value of land that is already contained in the body of the pleading? The Associate Justice says that it is not necessary to do so. That is not the test, however.
[100] The Associate Justice also found that the facts needed to support the proposed additional heads of relief were already pleaded. How then is it an abuse or prejudicial to the defendant’s right to a fair, efficient, and affordable trial process to allow amendments to be made to clarify in the prayer for relief that relief is indeed sought in respect of the facts already pleaded?
[101] A claim to amend the amount of relief sought can generally be made even at trial. I would expect a defendant at trial to complain mightily that he was not given notice of such a claim by an amendment made prior to the trial – perhaps at the pretrial conference. The fact that a statement of claim does not list specific relief sought in the prayer for relief in paragraph 1 of a claim might itself be a ground of complaint even where the damages are referenced in the body of the claim.
[102] The Associate Justice lists the steps in the action and finds that too much has been done in the action to allow the proposed amendments. But the amendments, if made, only affect one piece of the litany of process steps listed by the Associate Justice. They might cause the defendant to want further discovery. However, as the windows, the venting system, and the facts underlying the expanded relief have already been pleaded, presumably the defendant has already conducted all the discoveries he wishes. He effectively concedes in his factum, as cited at the outset, that an award of costs will effectively cure the prejudice of any additional discovery that he may seek.
[103] The Associate Justice relies on the Court of Appeal’s decision in Klassen to hold that after an inordinate period of time has passed, prejudice will be assumed and the plaintiff will bear the burden to establish by evidence that there is no prejudice caused by the proposed amendments.
[104] This motion needs to be distinguished from a motion for dismissal for delay. In the context of a motion for dismissal for delay, the plaintiff also needs to prove there is no prejudice cause by his delay. This involves establishing that all witnesses and documents needed for a fair trial have been preserved. See: Armstrong v. McCall, 2006 17248 (ON CA) at para. 11.
[105] But the scope of prejudice on a motion to amend a pleading is different. The issue is whether the making of the amendments causes prejudice that cannot be compensated by costs or an adjournment. The amendments being discussed all involve facts, causes of action, and types of damages that are already pleaded. There should be no change in document productions and all that may be needed, perhaps, is some further oral discovery by the defendant if his prior examination did not cover the facts already pleaded in the manner now presented or clarified.
[106] As noted above, the Associate Justice accepted the plaintiffs’ evidence of the general chronology of the action. What more evidence is Mr. Auciello expected to adduce to rebut prejudice that cannot be compensated in costs or an adjournment when there logically is none?
[107] In his endorsement dated April 19, 2023, well after the dismissal of the motion for leave to amend, the Associate Justice extended the time for the plaintiffs to set the action down for trial to July 20, 2023. Therefore there is no issue of dismissal for delay or prejudice to a fair trial generally due to the passage of time. The only issue is whether there is prejudice that cannot be compensated in costs caused by the proposed amendments alone.
[108] For the purposes of this decision, I accept the Associate Justice’s finding of fact or mixed fact and law that the delay was inordinate based on the simple passage of time and without assessing any causes for the delay.
[109] However, in my respectful view, the Associate Justice erred in finding that the plaintiff failed to rebut the presumption of prejudice that resulted from that finding.
[110] The presumption of prejudice is rebutted in this case by allowing the defendant to continue his examinations for discovery limited to the questions concerning the amendments at the cost of the plaintiffs. There is no other prejudice identified caused by the amendments. If the action is set down for trial immediately on the amendments being made, there is no reason why the additional discoveries, if needed, cannot be held well before the pretrial conference and the trial are even scheduled.
[111] It is a palpable error to find that there is prejudice caused by the proposed amendments in this case that do not assert new facts and a new cause of action. The Associate Justice relied on the plaintiffs’ failure to adduce evidence to rebut the presumption of prejudice. But Mr. Auciello adduced abundant evidence of the history of the matter and his efforts to move the claim forward against the defendant.
[112] There was nothing more he could say except a meaningless, bald statement like, “I do not know of any prejudice caused to the defendant by the proposed amendments that cannot be compensated by costs and an adjournment”.
[113] Where there is an obvious answer to the one possible prejudice acknowledged by the defendant, it is a palpable error to require evidence to make a finding on a topic that does not need evidence. Put another way, the Associate Justice erred in finding that the plaintiff had not rebutted the presumption of prejudice that flowed from the proposed amendment.
[114] One could make the case that the error is an error of law misinterpreting the meaning of prejudice that cannot be compensated by costs or an adjournment, or by finding that the burden on the plaintiff to negative prejudice required further evidence. In my view however, this is a palpable error on the factual end of the of mixed fact and law continuum. The Associate Justice erred in applying the law in Klassen to the facts, by failing to find as a fact that there was no prejudice that cannot be compensated in costs or an adjournment caused by the proposed amendment that do not assert new facts or causes of action.
[115] As a factual matter, there is no prejudice found by the Associate Justice apart from the risk of a possible further examination for discovery. In the circumstances of this case, that risk is readily compensated by costs as required by Rule 26.01.
[116] It follows that the a portion of the order of the Associate Justice is overruled to the extent that leave is now granted to the plaintiffs to amend the statement of claim as proposed to also plead the windows and venting system and to add to the prayer for relief the heads of relief proposed. The order is also amended to provide that the defendant may conduct additional examination for discovery of the plaintiffs on the proposed amendments alone. The defendant’s costs of any renewed examinations for discovery caused by the amendments allowed by this order are to be paid by the plaintiffs. The scale and quantification of these costs are reserved to the trial judge.
[117] The plaintiffs shall make the amendments to the statement of claim allowed by the Associate Justice’s order and this order forthwith. The date for setting the action down for trial is extended to April 30, 2024. The plaintiffs do not need to wait for the defendant to complete any further discovery before setting the action down for trial. The time to set the action down for trial is now.
[118] As the order below is partially overruled, the defendant can no longer be said to have been “entirely successful” as was found by the Associate Justice in his costs decision of October 26, 2022. The plaintiffs had substantial success as well. Success was divided. In my view there should be no order as to costs below.
[119] As to the appeal, the defendant submits that the motion to amend itself was unnecessary. The plaintiffs should have just gone to trial as suggested by Jolley AJ. But that logic flips on itself. If the motion was not required for the plaintiffs to assert at trial everything they had already pleaded, why didn’t the defendant consent at least to those proposed amendments?
[120] Mr. Auciello asks that he not be required to pay costs to the defendant. But he did not ask for costs for himself. I know that he puts a huge amount of work into this case. As noted at the outset, not all of the work is necessarily as productive as Mr. Auciello might hope. But, he has not established that he gave up remunerative business or employment opportunities in order to do the work needed to prepare the appeal. As such, as a self represented party, he is not entitled to any costs of the appeal. See: Girao v. Cunningham, 2021 ONCA 18.
FL Myers J
Date: January 29, 2024
[^1]: See Hryniak v Mauldin, 2014 SCC 7. [^2]: The matter was initially scheduled to be heard by a three-judge panel of the Divisional Court. A panel convened and raised the issue of whether the matter should be heard by one judge or three. The parties were content with the hearing by a single judge and the panel agreed. My two colleagues then retired.