SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07- CV-346377PD 2
MOTION HEARD: June 17, September 14, 2011 and January 25, 2012

RE: Francis Yau and Teresa Yau
Plaintiffs

v.

Elizabeth Ann Magner, John David Martin,
Tung Chu Huang and Tzu Chun Huang
Defendants

AND BETWEEN :

Elizabeth Ann Magner and John David Martin
Plaintiffs by Counterclaim

v.

Francis Yau and Teresa Yau and The Land Registrar for
the Land Titles Division of Toronto (No. 80)
Defendants by Counterclaim

v.

Her Majesty the Queen in Right of Ontario
Third Party

BEFORE: Master Thomas Hawkins

COUNSEL:
Roderick J. Byrnes
for moving defendant John David Martin and for moving
defendant Elizabeth Ann Magner on September 14, 2011 and
January 25, 2012

Fax No.: 416-597-1322

Elizabeth Ann Magner moving defendant in person on
June 17, 2011

Fax No.: 416-597-1322

Peter P. Chang for responding plaintiffs
Francis Yau and Teresa Yau

Fax No.: 416-497-2261

Kevin Hille for responding third party Her Majesty
The Queen in Right of Ontario

Fax No.: 416-326-4181

Derrick M. Fulton for responding defendants by
Crossclaim Tung Chu Huang and Tzu Chun Huang

Fax No.: 416-214-9994

REASONS FOR DECISION

[1] There are several motions before me. The first two are motions by the defendants Elizabeth Ann Magner (“Ms. Magner”) and John David Martin (“Mr. Martin”) for leave to amend their joint amended statement of defence, counterclaim and crossclaim by delivering separate defences, in the case of Ms. Magner a fresh as amended statement of defence, counterclaim and crossclaim, and in the case of Mr. Martin, a fresh as amended statement of defence and crossclaim.

[2] Ms. Magner and Mr. Martin wish to deliver separate defences because their positions respecting this litigation are not completely parallel. Much of this litigation involves a dispute between neighbours. Mr. Martin is not a neighbor of the plaintiffs Francis Yau and Teresa Yau. Ms. Magner remains a neighbor of the Yaus. Most of the relief which the plaintiffs claim is relief against Ms. Magner. The plaintiffs assert only one claim against Mr. Martin.

[3] These motions for leave to amend pleadings are brought under rule 26.01. Rule 26.01 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 costs or an adjournment.

[4] Rule 26.01 contains a reverse onus in favour of granting leave to amend a pleading.

[5] Drafts of these proposed new defences for Ms. Magner and Mr. Martin kept changing, in part in response to my comments, as argument of the motions unfolded. In their final forms these new draft defences were as follows. Ms. Magner wishes leave to amend to deliver a fresh as amended statement of defence, counterclaim and crossclaim in terms of a draft dated December 11, 2008. I have attached a copy of the body of this proposed pleading as schedule “A” to these reasons. Mr. Martin wishes leave to amend to deliver a fresh as amended statement of defence and crossclaim of the same date. He says he asserts no counterclaim. I have attached a copy of the body of this proposed pleading as schedule “B” to these reasons.

[6] Originally, Ms. Magner and Mr. Martin also sought relief in their respective notices of motion respecting examinations for discovery and production of documents in this action. However, on May 2, 2011 McAfee M. ordered that the relief which Ms. Magner and Mr. Martin sought other than leave to amend their joint defence be adjourned indefinitely, to be renewed on a mutually convenient date, if necessary, following disposition of motions for summary judgment brought by the plaintiffs (and perhaps by other parties) if the summary judgment motion or motions were not successful.

[7] From the perspective of May 2, 2011 the summary judgment motion or motions were scheduled to be heard on July 27, 2011. Ms. Magner and Mr. Martin wanted their motions for leave to amend their joint defence heard in advance of the summary judgment motion or motions. McAfee M. granted this request and adjourned the Magner/Martin motions for leave to amend their joint defence to June 17, 2011.

[8] In her endorsement respecting her order of May 2, 2011, McAfee M. refers to motions (plural) for summary judgment. However, the case history does not show that anyone other than the plaintiffs had brought a motion for summary judgment by May 2, 2011.

[9] No one appealed the May 2, 2011 order of McAfee M., or moved to have that order set aside.

[10] As matters unfolded, all the motions for leave to amend pleadings (some of which I have yet to mention) took much longer to argue than originally anticipated. The plaintiffs’ motion for summary judgment has been adjourned on consent several times since July 2, 2011.

[11] Counsel for the Huangs objects to the motion by Ms. Magner and Mr. Martin for leave to amend their joint amended statement of defence and counterclaim and crossclaim by delivering separate statements of defence as prejudicial, because if Ms. Magner and Mr. Martin are granted leave to amend their joint defence and deliver separate defences, he will have to deliver amended material on the motion or motions for summary judgment. He submits that if Ms. Magner and Mr. Martin are granted an order for leave to amend, that order should not take effect until after the final disposition of any motion for summary judgment.

[12] On my view, this submission runs counter to the order which McAfee M. made on May 2, 2011. She directed that the motions by Ms. Magner and Mr. Martin proceed before any motion for summary judgment in this action.

[13] As I have said, no one has appealed the order which McAfee M. made on May 2, 2011 or moved to have that order set aside.

[14] There are a number of allegations in the proposed amended defences of Ms. Magner and Mr. Martin which I consider to be improper. However, I will not deal with those allegations because they are not before me for two reasons. First, they are not proposed amendments to the existing joint defence and thus not the subject of the motions by Ms. Magner and Mr. Martin for leave to amend. Secondly, no other party has moved for an order striking out those allegations as improper.

[15] I will now deal with specific objections to particular proposed amendments in Ms. Magner’s draft fresh as amended statement of defence, counterclaim and crossclaim. I have attached the body of this pleading (omitting the title of proceeding and backsheet) as exhibit “A” to these reasons.

[16] In paragraph 13 the words “commissioned by their solicitor Roslyn Tsao (referred to below as “Tsao”)” are improper as a pleading of the evidence by which the allegation that the declaration was a sworn declaration is to be proved. This is contrary to subrule 25.06 (1).

[17] Subrule 25.06 (1) provides as follows.

Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[18] Leave to amend in terms of the words I have quoted from paragraph 13 is denied.

[19] Paragraph 14 is improper as raising matters respecting pre-trial disclosure which should be resolved on a motion brought before trial. The alleged failure of the Huangs to comply with their pre-trial disclosure obligations is not a matter for trial. These allegations do not belong in a pleading. Leave to amend in terms of proposed paragraph 14 is denied.

[20] The last sentence of paragraph 21 is improper as irrelevant. If a party is granted leave to amend a pleading the reasons why that party felt it was necessary to amend is not a matter for trial. Leave to amend in terms of the last sentence of paragraph 21 is denied.

[21] Paragraph 25 is irrelevant. Neither the Yaus nor the Huangs seek payment of these costs in this action. Leave to amend in terms of proposed paragraph 25 is denied.

[22] Counsel for the Huangs objects to proposed paragraph 31 as an untenable plea. He submits that the declaration in question, given by the Huangs as vendors on the sale of 119 Palmerston Avenue, Toronto to the Yaus as purchasers, may create rights as between the Yaus and the Huangs. However he submits that this declaration does not create any rights in favour of Ms. Magner or Mr. Martin. They were not parties to this purchase and sale transaction.

[23] By implication, counsel for the Huangs submits that paragraph 31 is untenable because the Huangs owed no duty to Ms. Magner or Mr. Martin to ensure that when completing this declaration, they made proper disclosure to the Yaus about the state of affairs between the Yaus and Ms. Magner as adjoining landowners.

[24] I agree that leave to amend should not be given to raise a plea that is clearly impossible of success.

[25] Paragraph 31 is related to the claim in proposed clause 38(d) and the allegations in proposed paragraphs 41 to 43. I am unable to say that these pleas are so clearly impossible of success that leave to amend should be denied. In my view, leave to amend in terms of paragraphs 31, 38(d) and 41 to 43 should be granted, and the issues raised by these pleas left to be resolved on a motion for summary judgment or at trial. So ordered.

[26] Proposed paragraph 32 is improper. This paragraph alleges some of the procedural history of this action and the failure of the Yaus to make timely disclosure of documents. This paragraph does not raise issues for trial. The dispute respecting production of documents has been belatedly resolved. The last two sentences of this paragraph are utterly irrelevant. Leave to amend in terms of proposed paragraph 32 is denied.

[27] Proposed paragraph 33 is improper and irrelevant. It appears to be an attempt to relitigate Ms. Magner’s unsuccessful appeal to the Court of Appeal earlier in this action. It does not allege that anyone breached any duty owed to Ms. Magner or committed any civil wrong against her. Leave to amend in terms of proposed paragraph 33 is denied.

[28] Paragraph 34 is one of the paragraphs which I consider to be improper but which is not before me for the reasons set out in paragraph [14] above.

[29] Paragraph 35 is improper as completely irrelevant. Leave to amend in terms of proposed paragraph 35 is denied.

[30] Proposed paragraph 36 is also improper as completely irrelevant. If there is something wrong with the Yau’s statement of claim because they have failed to plead some fact or raise some claim this should be resolved on a motion brought before trial. Proposed paragraph 36 does not raise any issue which should be resolved at trial. Leave to amend in terms of this paragraph is denied.

[31] Proposed paragraph 37 is irrelevant and improper as containing pure argument. Leave to amend in terms of this paragraph is denied.

[32] Next I will deal with Ms. Magner’s crossclaim against the Huangs.

[33] Clauses 38(a) to (c) are related to paragraph 40. These pleas are improper because they raise issues about pre-trial disclosure which should be determined before trial, not at trial. These complaints belong in a motion record, not in a pleading. Leave to amend in terms of proposed clauses 38(a) to (c) and paragraph 40 is denied.

[34] Paragraph 52 is improper as raising irrelevant matters, such as the costs of an earlier rule 21 motion. The plaintiffs make no claim in this action for payment of such costs. The first sentence of this paragraph does not respond to anything in the amended statement of claim. In the second sentence the reasons why Ms. Magner wishes to amend her pleading do not belong in this pleading and are thus irrelevant. Leave to amend in terms of proposed paragraph 52 is denied.

[35] The first sentence of paragraph 53 lacks particularity. When Ms. Magner alleges that she “seeks this order” what order does she seek? She does not say. The second sentence of this paragraph is pure argument. Leave to amend in terms of paragraph 53 is denied.

[36] Ms. Magner has added two schedules to her draft amended defence. The first, or schedule “A”, is a chronology of background events going back to 1980. This chronology contains irrelevant matters, including a reference to prior litigation between Ms. Magner and the Huangs and pleas of evidence. It is an amended version of a chronology that appeared in the body of the original joint defence.

[37] This chronology repeats some allegations of fact which are found in Ms. Magner’s draft amended defence. This chronology does not comply with rule 25.02. It is not divided into consecutively numbered paragraphs.

[38] The second chronology, schedule “B”, provides information about Roslyn Tsao, a lawyer who has evidently acted for the Huangs in the past. Ms. Tsao is not a party to this action. Ms. Magner claims no relief against her. This chronology includes references to other litigation involving Ms. Magner.

[39] Like the first chronology, the second chronology is an amended version of a chronology which appeared in the body of the original joint defence. It contains pleas of evidence. In my view the contents of schedule “B” are entirely irrelevant to the issues in this action.

[40] Schedule “B” also does not comply with rule 25.02 because it is not divided into consecutively numbered paragraphs.

[41] Counsel for the Huangs submits that if Ms. Magner is given leave to amend in terms of proposed schedules “A” and “B”, the scope of production of documents and examinations for discovery will be dramatically expanded and the parties put to significant needless expense litigating irrelevancies. I agree.

[42] Leave to amend in terms of proposed schedules “A” and “B” is therefore denied.

[43] Ms. Magner may feel that these chronologies will help the trial judge to understand the factual context for this litigation because the chronologies provide background and historical information about the parties. Be that as it may, background and historical information does not belong in a pleading because if put in a pleading, it affects the scope of production of documents and examinations for discovery.

[44] Nothing in these reasons prevents any party from preparing a chronology separate from the pleadings and tendering that chronology during argument to assist the trial judge.

[45] In summary, Ms. Magner is given leave to amend in terms of her proposed fresh as amended statement of defence, counterclaim and crossclaim as set out in schedule “A” as asked, subject to the rulings I have made in paragraphs 18, 19, 20, 21, 26, 27, 29, 30, 31, 33, 34, 35 and 42 of these reasons for decision.

[46] My partial dismissal of Ms. Magner’s motion for leave to amend is without prejudice to a further motion by her for leave to amend which addresses the concerns I have raised, except in the case of paragraphs 13, 14, 21, 25, 32, 33, 35, 36, 37, 38(a) to (c) 40 and schedules A and B to her draft pleading.

[47] I now turn to specific objections to Mr. Martin’s motion for leave to amend his proposed fresh as amended statement of defence and crossclaim.

[48] In my view the first two sentences of proposed paragraph 8 lack necessary particulars. This paragraph alleges that Mr. Martin was defamed by the plaintiffs in essence by the publication of certain allegations against him. Mr. Martin does not state what those allegations were. Mr. Martin needs to set out the words complained of to the best of his knowledge, who published those words (one plaintiff or both of them), when and where those words were published, to whom those words were published, and how those words were published (orally or in writing or both).

[49] Mr. Martin describes his proposed pleading as a defence and crossclaim. He does not mention any counterclaim. However, I view the first two sentences of paragraph 8 as a counterclaim against both the plaintiffs because in these sentences, Mr. Martin alleges that the plaintiffs defamed him and injured his reputation as a lawyer. Mr. Martin’s proposed pleading should be further amended to set out a proper counterclaim for defamation against the plaintiffs.

[50] The third sentence of proposed paragraph 8 is a proper plea.

[51] Next, I will deal with Mr. Martin’s proposed amendments to his crossclaim against the Huangs.

[52] Clauses 9 (a) and (b) are improper pleas. They raise issues about pre-trial disclosure which should be determined before trial, not at trial. They belong in a motion record, not in a pleading. The same is true of proposed paragraph 11. The issues raised in this paragraph should be raised on a motion brought before trial. These allegations do not belong in a pleading.

[53] Clause 9 (c) is improper as lacking particularity. Mr. Martin does not allege unambiguously what the damages he suffered were, and what were the consequences alleged in this clause. Mr. Martin seems to be alleging that he has suffered damages because he has been put to expense to defend this action. Mr. Martin’s alleged damages and their nature need to be made clearer.

[54] The first sentence of paragraph 12 does not state what was the alleged “conduct of the Huangs in the 2002 sale to the plaintiffs”. That conduct might or might not be the swearing of a false statutory declaration. Mr. Martin needs to make clear what was the conduct of the Huangs he complains of. If that conduct was the swearing of a false statutory declaration, he also needs to allege in what way the statutory declaration was false.

[55] The second sentence of paragraph 12 is improper. The first part of this sentence up to the words “productions of the Plaintiffs and” is a plea of the evidence by which the allegation that the Huangs swore a false statutory declaration is to be proved. This is contrary to subrule 25.06 (1).

[56] The latter part of the second sentence of paragraph 12 beginning with the words “before Roslyn Tsao” and continuing to the end of that sentence is improper as utterly irrelevant. Ms. Tsao is not a party to this action, and Mr. Martin does not seek to have her added as a party. No one, Mr. Martin included, seeks any relief against her. That being so, the issue of whether Ms. Tsao committed some impropriety or civil wrong is not relevant.

[57] Paragraph 13 also lacks particularity. Mr. Martin needs to identify which sale would not have closed. I assume it was the 2002 Huang sale of 119 Palmerston Avenue, Toronto to the Yaus but this is not clear. It should be made clear.

[58] Counsel for the Huangs submits that Mr. Martin’s entire crossclaim is clearly statute barred because it is based on events surrounding the 2002 Huang sale of 199 Palmerston Avenue to the Yaus. He submits that Mr. Martin’s entire crossclaim is an untenable plea. As I have said, I agree that leave to amend to raise a plea which is clearly untenable should not be granted.

[59] The difficulty I have with this submission is that because Mr. Martin’s proposed amendments lack many particulars, I am unable to say whether an applicable limitation period has expired. For example, in proposed paragraph 8 Mr. Martin raises a new claim for defamation. I am unable to say whether this proposed claim is clearly statute barred because I do not know when the events referred to in this paragraph took place. Once Mr. Martin has provided the particulars of the claims I have ordered him to provide, the issue of whether an applicable limitation period had expired before April 11, 2011 (the effective date as of which Mr. Martin served his motion to amend) will become clearer.

[60] In the result, Mr. Martin is given leave to amend his fresh as amended statement of defence and crossclaim as found in schedule “B”, subject to the following.

(a) Leave to amend paragraph 8 is denied in part, for the reasons set out in paragraphs [48] and [49] above.

(b) Leave to amend clauses 9 (a) and (b) and paragraph 11 is denied for the reasons set out in paragraph [52] above. These provisions cannot be corrected by rewording them. They do not belong in a pleading.

(c) Leave to amend clause 9 (c) is denied for the reasons set out in paragraph [53] above.

(d) Leave to amend in terms of the quoted parts of paragraph 12 is denied for the reasons set out in paragraphs [54] to [56] above.

(e) Leave to amend in terms of paragraph 13 is denied for the reasons set out in paragraph [57] above.

(f) My partial dismissal of Mr. Martin’s motion for leave to amend is without prejudice to a further motion by him for leave to amend which addresses the concerns I have raised, except in the case of proposed clauses 9 (a) and (b) and proposed paragraph 11.

[61] I now turn to the motions for leave to amend pleadings which Ms. Magner and Mr. Martin have brought in the third party claim in this action. Once again, Ms. Magner and Mr. Martin wish leave to amend to assert separate third party claims. Their situations are not completely parallel. The relief they propose to seek in their respective third party claims is not completely parallel either. They believe that if they are given leave to raise separate third party claims, this will facilitate settlement.

[62] Of these two motions, I will deal first with Ms. Magner’s motion for leave to amend in terms of the undated proposed fresh as amended third party claim of Elizabeth Ann Magner. I have attached a copy of the body of this proposed pleading as schedule “C” to these reasons.

[63] I will now address specific objections to the proposed amendments to Ms. Magner’s third party claim. First, counsel for Her Majesty submits that most, if not all, of the proposed amendments to Ms. Magner’s third party claim are barred by sections 4 and 5 of the Limitations Act, 2002, S.O. 2002 Sch. “B”.

[64] Clauses 1 (i) and (ii) are new claims for declaratory relief in which no consequential relief is sought. Subsection 16 (1) (a) of the Limitations Act, 2002 provides as follows.

There is no limitation period in respect of (a) a proceeding for a declaration if no consequential relief is sought.

[65] I am therefore of the view that clauses 1 (i) and (ii) are not statute barred.

[66] Clause 1 (iii) of Ms. Magner’s proposed amended third party claim is a new claim for damages allegedly suffered by Ms. Magner as a result of the error or negligence of the Land Titles Registrar in certifying the wrong persons as the owner of 119 Palmerston Avenue, Toronto. Counsel for Her Majesty submits that this claim is also statute barred by the Limitations Act, 2002 or the Limitations Act, R.S.O. 1990 ch. L-15 because any such error or negligence occurred years ago, with the result that the proposed claim in paragraph 1 (iii) is an untenable plea. Again, I agree that I should not give leave to amend to Ms. Magner to raise what is clearly an untenable plea.

[67] I have the following problem with that limitation of action argument. The evidence (as opposed to the allegations) before me does not establish when the acts or omissions constituting the alleged error or negligence took place or when Ms. Magner and Mr. Martin first knew or ought to have known of the error or negligence complained of. No one sought particulars of these missing facts. That being so, it is not clear whether or not a limitation period had expired when Ms. Magner and Mr. Martin served counsel for Her majesty with their motion records for leave to amend their joint third party claim on April 15, 2011. On this evidentiary record, I am not prepared to deny Ms. Magner leave to amend in terms of proposed clause 1 (iii). Leave to amend in terms of this clause is granted, subject to the term that Her Majesty may raise a limitation of action defence to be resolved on a motion for summary judgment or at trial.

[68] Next, counsel for Her Majesty submits that most of the amendments which Ms. Magner and Mr. Martin seek in their third party claims are barred by the terms of an undated letter agreement between the Attorney General, Ms. Magner and Mr. Martin. The Crown Law Office received this letter agreement on October 14, 2009.

[69] This letter agreement is in evidence before me. There is a dispute between the parties as to the meaning of this letter. It is not abundantly clear to me that this letter has the effect that counsel for Her Majesty submits it has. On a motion for leave to amend pleadings, the court should refrain from interpreting agreements and weighing evidence. See Andersen Consulting Ltd. v. Canada (Attorney General) , 2001 8587 (ON CA) , [2001] O.J. No. 3576 (C.A.). This issue may be raised in Her Majesty’s defence to Ms. Magner’s third party claim and left to be resolved on a motion for summary judgment or at trial.

[70] The claims in clauses 1 (iv), (v) and (vi) are not new. They were in the original joint third party claim.

[71] The balance of the proposed amendments are unobjectionable with the exception of paragraph 7. This paragraph is either irrelevant or procedural in nature and does not belong in a pleading. If Ms. Magner obtains leave to amend, the reasons why her pleading needed amendment become moot.

[72] In the result, I grant Ms. Magner leave to amend the joint third party claim as asked with the exception of proposed paragraph 7. The problems with that paragraph cannot be corrected by rewording it. That paragraph does not belong in a pleading.

[73] I will now deal with Mr. Martin’s motion for leave to amend the joint third party claim in terms of the undated proposed fresh as amended third party claim of John David Martin. I have attached a copy of the body of this proposed pleading as schedule “D” to these reasons.

[74] Counsel for the third party Her Majesty raised some of the same objections to this motion by Mr. Martin as he raised to Ms. Magner’s motion for leave to amend her third party claim. I refer to his submissions that Ms. Magner’s third party claim was statute barred and barred by the provisions of the letter agreement which the Crown Law Office received on October 14, 2009. I reject those submissions for the same reasons I rejected them in dealing with Ms. Magner’s motion for leave to amend her third party claim.

[75] I have reviewed the proposed amendments to Mr. Martin’s third party claim. There are two typographical errors in the third and fourth lines of proposed paragraph 2 (“Land Judgment” and “Claiam”) which should be corrected. Otherwise, the proposed amendments are proper with the exception of proposed paragraph 9. That paragraph is improper for the same reasons that proposed paragraph 7 of Ms. Magner’s third party claim is improper. The problems with Mr. Martin’s proposed paragraph 9 cannot be cured by rewording that paragraph. That paragraph does not belong in a pleading.

[76] For the above reasons, Mr. Martin is given leave to amend his third party claim as asked (correcting the typographical errors in paragraph 2) with the exception of paragraph 9.

[77] Of the four motions before me three were situations where, in terms of points argued, success was divided to such a degree that there should be no order as to costs. The only exception is Ms. Magner’s motion for leave to amend the joint statement of defence and deliver a separate fresh as amended statement of defence, counterclaim and crossclaim. Here in terms of points actually argued the Huangs were substantially successful and should receive the costs of their part of this motion. I fix those costs at $3,000 and order Ms. Magner to pay such costs to the Huangs within 30 days.

Master Thomas Hawkins

DATE: April 12, 2012