ORDER OF MASTER ABRAMS

Klees v. Stanleigh, 2012 ONSC 1203

Klees et al. v . Stanleigh

Court File No.: 06-CV-303400PD 2

Motion heard: December 20/11

In attendance: M. Scott Martin, for the defendant (1-888-587-9141)

Donald Klees, plaintiff (4261-A14 Highway #7, Ste. 389, Markham, ON, L3R 9W6)

1 . This motion is brought in the context of a solicitor’s negligence action commenced in 2006 arising out of two related retainers: the retainer of the defendant to act on behalf of Julia Kent on the proposed purchase of a residential property that was to close in October 1996, and the retainer of the defendant to act on behalf of both plaintiffs in an action commenced against them by the vendor of the property, given Ms. Kent’s failure to complete the purchase of the property.

2 . The property litigation was tried by Karakatsanis, J. (as she then was) in 2003. In her reasons for decision, Her Honour granted judgment against Ms. Kent in favour of the vendor. The action was dismissed against Mr. Klees, with costs in his favour.

3 . During the course of the examination for discovery of the plaintiff in this solicitor’s negligence action, Ms. Kent indicated that she no longer wished to pursue her claims. Her claims were dismissed on a without-costs basis in exchange for a full and final release.

4 . Mr. Klees now seeks to amend his statement of claim, through the addition of new paragraphs and an increase by more than $400,000 of the damages sought. His proposed amendments are annexed to this endorsement as Schedule “A”. The defendant says that leave to amend (as sought) ought not to be given to Mr. Klees, in that the amendments are not proper. Generally speaking, Mr. Martin’s criticisms of the proposed amendments are that: they will cause the defendant non-compensable prejudice; they are pleas of evidence; they seek to withdraw an admission/admissions; they are irrelevant, scandalous and embarrassing; and/or they attempt to add new causes of action after the expiry of a limitation period. Having considered the proposed amendments, I am inclined to agree.

5 . Dealing with each proposed amendment/grouping of proposed amendments seriatim :

para. 1: The defendant does not oppose the addition of this paragraph. The court thus permits it.

para. 2: Karakatsanis, J. granted judgment against Ms. Kent only. In paragraph 25 of the existing claim, a claim is asserted for damages for “amounts paid and to be paid by [Ms.] Kent [emphasis added] to the Vendor in satisfaction of the judgment and legal fees awarded”. There is no claim for damages suffered by Mr. Klees. The proposed amendment is, in effect, the withdrawal of an admission (without leave having been granted or sought) that Ms. Kent (and not Mr. Klees) was the party that suffered these alleged damages for which recovery is said to be appropriate. There is no explanation for the change in position and, as Mr. Martin submits, it is a change in position that will cause prejudice to the defendant. The defendant’s settlement with Ms. Kent was predicated, in part, on the fact that any such damages as were claimed were claimed by Ms. Kent (and not Mr. Klees or Mr. Klees and Ms. Kent).

paras. 3-9: I accept, as has been argued, that paragraphs 3-7 improperly plead evidence in support of allegations in the existing claim that the defendant was negligent in the conduct of the property litigation: i.e. unprepared for trial. Further, some of the language used is inflammatory language which improperly (and without need) seeks to add colour to the pleading and embarrass the defendant. For instance: “...[the defendant] allowed his greed to get in the way....”; and “...[the defendant] confided that he was worried about his wife who was at home being hounded by his creditors....and that his own brother had called him a crook...”.

paras. 10-12: These paragraphs seek to assert a new cause of action against the defendant arising from an adjournment of the property litigation giving rise to this action. The adjournment took place in 2003. There are no allegations in the original claim that relate to the adjournment or any alleged damages flowing therefrom. While I accept that it formed part of the original retainer of the defendant, it is an independent tortious act which was known about long ago and is now being sought to be added outside of the relevant limitation period. Also, no distinction is being drawn between any damages allegedly suffered by Mr. Klees (as opposed to Ms. Kent). With the settlement and dismissal of the claims asserted by Ms. Kent, non-compensable prejudice would accrue to the defendant if these proposed amendments were to be permitted at this time.

paras. 13-18: I agree with Mr. Martin when he says that these proposed amendments appear to repeat the allegations contained in paragraph 16 of the existing claim. These paragraphs also plead evidence and include allegations that add colour (without need) to the pleading: i.e. the defendant’s “apparent desperate need for money”. Then too, Mr. Klees seeks to add a cause of action relating to the adjournment request as well as a new claim for stress, depression, deteriorating health and lost opportunities for events which occurred between 1996-2003. Though these proposed new claims are prima facie statute barred, given the time frame to which they relate, no evidence has been adduced by Mr. Klees as to issue of discoverability.

paras. 19-22: In these proposed amendments, Mr. Klees makes allegations and seeks damages arising from the defendant’s retainer on an unrelated litigation matter commenced by a condominium corporation against 1171793 Ontario Limited. These proposed amendments are wanting in particularity (though the claims proposed relate to “deceitfulness and fraudulent conduct”). Further, they relate to litigation that resulted in a judgment against the numbered company in 2003. On its face, the assertion of this proposed cause of action is outside of any applicable limitation period. I note that there is no evidence before me as to the issue of discoverability (only assertions which are not tantamount to evidence). Then too, there is nothing before me to substantiate an identity of interests between Mr. Klees and the numbered company. Mr. Klees was not a party to the underlying litigation involving the condominium corporation. 1171793 Ontario Limited was.

paras. 23-25: Mr. Klees seeks to add a new plea involving a property on Lakeshore Road in Stouffville. The defendant acted for the Mr. Klees in respect of this property in 2002. Mr. Klees sued the defendant in Small Claims Court in November 2007. If additional damages are being claimed, and this is unclear, this would amount to a new cause of action being asserted outside of the limitation period. If not, the issues have already been litigated and the judgment which issued has been paid. Mr. Klees ought not to be permitted to relitigate issues or to raise issues that are irrelevant to the matters at issue in this lawsuit between him and the defendant. The proposed new allegations simply and improperly add colour and atmosphere.

6 . Mr. Klees says that he is most aggrieved by his and Ms. Kent’s dealings with the defendant. That may be. He and Ms. Kent may have reason to be upset about the manner in which they have been represented. It is not for me to determine whether they do or they don’t. It is for me to consider Mr. Klees’ proposed amendments, having regard to the evidence adduced and the law governing pleadings, and I have done so. And while I accept, as Mr. Klees has argued, that he simply wishes to state the facts as he understands them and place his claims against the defendant in context, I must consider and determine the propriety of the manner in which Mr. Klees proposes to do so. Save the plea reflected in paragraph 1 of Mr. Klees’ proposed amendments, the pleas that Mr. Klees proposes be made offend the rules governing pleading and are, variously, untenable, statute barred and/or prejudicial in a manner that cannot be compensated for by an award of costs. Further, the settlement of Ms. Kent’s claims (irrespective of Ms. Kent’s reasoning behind that settlement) has strengthened the defendant’s arguments as to non-compensable prejudice.

7 . I am thus denying Mr. Klees’ motion (save as it relates to paragraph 1 of Schedule “A”)--without prejudice to Mr. Klees’ right to renew his motion on fresh evidence and with differently drafted proposed amendments.

8 . As for the costs thrown away in respect of the summary judgment motion, sought by the defendant, I think any award to be premature given that the defendant is undecided as to whether he will bring his motion back on for a hearing. Once the defendant makes that decision and acts upon it, he can ask that I revisit the issue of costs thrown away.

9 . Failing agreement as to the costs of this motion, I may be spoken to.

February 21/12

This Order is effective without further formality.