COURT FILE NO.: CV-11-419112

CITATION: Zytkiewicz v. TTC, 2012 ONSC 28

DATE: 2012/01/03

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Zytkiewicz v. The Toronto Transit Commission, and TTC Insurance Company Limited

BEFORE: MASTER GRAHAM

HEARD: November 16, 2011

COUNSEL: William G. Scott for the plaintiff (moving party)

Chad Townsend for the defendants

REASONS FOR DECISION

(Plaintiff’s motion to amend the statement of claim)

[1] This action arises out of personal injuries sustained by the plaintiff on August 22, 2002 while a passenger on a bus owned by the Toronto Transit Commission (“TTC”). It is alleged in the current version of the statement of claim that the injuries occurred when the bus driver braked heavily, causing the plaintiff to strike her head against a pole and then fall to the floor. There is no reference in the current statement of claim to the involvement of any other vehicle in the accident. The statement of claim was previously amended to add TTC Insurance Company Limited (“TTC Insurance”) as a defendant solely on the basis that it wrongfully denied the plaintiff’s claims for Statutory Accident Benefits (“SABS”).

[2] The plaintiff now moves for leave to permit a further amendment to the statement of claim pleading the involvement of a second vehicle in the accident, specifically that “An unidentified motor vehicle drove in front of the Defendant’s bus to go into a laneway”, as a result of which the bus driver “had to brake sharply to avoid a collision” (Paragraph 6 of the draft Amended Amended Statement of Claim).

[3] The proposed amendments also include pleadings that the accident was caused by the negligence of both the bus driver “and the unknown driver of the unidentified motor vehicle” and claiming compensation for the negligence of the unidentified motorist under s. 265 of the Insurance Act, R.S.O. 1990, C. I-8 from the defendant TTC Insurance (Paragraphs 5A and 8 of the draft Amended Amended Statement of Claim). The draft amended pleading also includes a list of the particulars of negligence of the unidentified motorist.

[4] Essentially, the plaintiff wishes to add a claim against TTC Insurance for unidentified motorist coverage under the same insurance policy from which she is claiming SABS. One issue on the motion is whether she should be able to do so following the expiry of the two year limitation period.

[5] A preliminary issue arises from the fact that the plaintiff previously brought a motion for the same relief by way of a motion returnable July 7, 2005. That motion included a claim for leave to add Brian Carr, the operator of the TTC bus, as a defendant. The motion was resolved on the basis that counsel for the TTC acknowledged that Mr. Carr was operating the TTC vehicle with the consent of the owner and agreed to produce Mr. Carr to be examined for discovery. Specifically, counsel for the TTC offered to the plaintiff’s former counsel Ms. Chagpar: “If you are prepared to abandon your motion, I will agree to produce the operator. Please let me have your position”.

[6] In her supporting affidavit, Ms. Chagpar deposes that, based on the TTC’s offer to produce Mr. Carr to be examined for discovery, she agreed to withdraw the motion returnable July 21, 2005 with the intention of preparing a new motion record to be filed on consent to plead the unidentified motorist claim against TTC Insurance. She also deposes that she did not proceed with this motion immediately as there were settlement negotiations taking place and she did not want to incur unnecessary costs. She intended to proceed with the motion in the event that settlement discussions broke down.

[7] On July 18, 2005, Ms. Chagpar sent to the TTC’s counsel correspondence with which she enclosed a Notice of Abandonment of the motion to amend the amended statement of claim. However, she said nothing in this letter about bringing a separate motion to plead an unidentified motorist claim against TTC Insurance.

[8] It should also be noted that despite Ms. Chagpar’s sworn statement that she did not proceed with the motion for leave to plead the unidentified motorist claim because there were settlement discussions taking place, the TTC’s counsel deposes in a responding affidavit that plaintiff’s counsel never informed her of this either in writing or orally. It was not until December 5, 2005 that Ms. Chagpar wrote to TTC’s counsel as follows: “My client’s circumstances have changed such that she has instructed me to canvass settlement of her claims both SABS and tort before the holidays”. This is the first occasion for which there is any concrete evidence that plaintiff’s counsel wished to engage in settlement negotiations.

[9] In December, 2005, the plaintiff changed lawyers to Ms. Zisckind at the Levinter and Levinter firm. On August 21, 2006, Ms. Zisckind wrote to the TTC’s counsel stating her intention to amend the statement of claim to plead negligence against the unidentified driver and to advance a claim for unidentified motorist coverage against TTC Insurance.

[10] In previous correspondence of July 13, 2006, counsel for the TTC stated that she would not oppose such a motion to amend but that plaintiff’s counsel “would be wise to expect a limitation defence . . . ”. In a subsequent letter of August 21, 2006, the TTC’s counsel referred to her previous correspondence, stating that if the plaintiff wanted to amend the statement of claim as proposed, she should bring a motion and that although the TTC would likely neither consent to nor oppose the motion, this decision could only be made after reviewing the materials.

[11] Ms. Zisckind subsequently left the Levinter and Levinter firm and Mr. Gabor assumed carriage of the plaintiff’s action in November, 2008. On reviewing the file, he mistakenly believed that the statement of claim had been amended to include allegations against the unidentified driver. It was not until September, 2010, when the defendants brought a motion to transfer the action from Newmarket to Toronto that he discovered that the statement of claim had not been amended to that effect.

[12] The motion record for this motion was not served until May, 2011.

[13] Based on the delivery of the notice of abandonment by Ms. Chagpar on July 18, 2005, the TTC defendants submit that the plaintiff is precluded from bringing this motion, irrespective of the limitation period issue. The plaintiff moves to withdraw the notice of abandonment.

[14] Although the parties’ factums address the issue of whether the plaintiff must first obtain the leave of the court to bring this motion under rule 48.04(1), because the action has been set down for trial, counsel for the defendants conceded on the motion that this would be an appropriate case for the granting of leave. Accordingly, it is not necessary for the court to rule on this issue.

Issues

[15] The two issues on the motion are as follows:

1. Does the plaintiff’s notice of abandonment dated July 18, 2005 preclude the plaintiff from bringing the motion?

2. If the notice of abandonment is not a bar to the motion, should the proposed amendment to allege negligence against an unidentified motorist and to plead a claim for unidentified motorist coverage be permitted despite the passage of more than two years since the motor vehicle accident of August 22, 2002?

Is the notice of abandonment a bar to the motion?

[16] The abandonment of a motion is addressed in rule 37.09(1):

37.09(1) A party who makes a motion may abandon it by delivering a notice of abandonment.

[17] The balance of the rule addresses the consequence of a party’s failure to file a notice of motion that has been served or to appear at the hearing, and the opposing party’s entitlement to the costs of an abandoned motion, but does not provide any guidance as to if or when an abandoned motion may be revived.

[18] In Omega Digital Data Inc. v. Airos Technology Inc., [1997] O.J. 3338, Farley J. stated, at ¶15:

It would seem to me, that an abandoned motion cannot be revived either in the same form or essentially the same form – unless of course there be new or previously unknown factors intervening which would allow a fresh notice of a similar intended result to be brought.

[19] In GasTOPS Ltd. v. Forsyth, 1998 CarswellOnt 4370 (O.C.J.-Gen. Div.), Bell J. refers to Omega Digital, as well as to Pacific Centre Ltd. v. Micro Base Development Corp. (1990), 1990 CanLII 1985 (BC CA), 43 C.P.C.(2d) 302 (B.C.C.A.), and stated the law as follows (at ¶13):

[T]he standard on which a motion for leave to withdraw a notice of abandonment should be judged is not only whether there has been inadvertence, mistake or misapprehension but also whether there are other grounds which would justify the court’s exercise of its discretion. However, with respect to those other grounds, because the filing of a notice of abandonment of an interim motion is a serious step in the litigation process with generally final consequences to the interim step, leave should not be granted to withdraw a notice of abandonment on other grounds unless those grounds demonstrate some special circumstances which are of a compelling nature.

[20] The issue is therefore whether there is inadvertence, mistake or misapprehension or some other grounds constituting compelling special circumstances that would justify the granting of leave to bring this motion in the face of the previous notice of abandonment.

[21] Counsel for the plaintiff submits that the decision in Omega Digital, in which the court held that the abandoned motion could not proceed, is distinguishable on the basis that the abandoned motion in that case constituted a collateral attack on an issue that had already been determined. However, the fact that the outcome of that case can be distinguished does not invalidate Farley J.’s statement of the law, which is similar to that of Bell J. in GasTOPS.

[22] There is no evidence on this motion that would support the granting of the leave requested. The evidence of Ms. Chagpar is that she resolved the motion to add Mr. Carr as a defendant with the intention of bringing a separate motion to amend the pleading against TTC Insurance, but there is nothing to indicate that her delivery of the notice of abandonment arose from any inadvertence, mistake or misapprehension. Certainly it would have been open to her to resolve the motion relating to the involvement of Mr. Carr on the basis proposed by TTC’s counsel and then to proceed with the balance of the motion to amend the claim against TTC Insurance. Counsel deposes that she intended to do so but there is no evidence of any actual steps taken in that regard. As indicated above, her statement that she did not do so because she was engaging in settlement discussions is highly questionable, given her subsequent letter written almost five months later in which she appears to raise the prospect of settlement for the first time and makes no reference to any pleadings amendment.

[23] Similarly, counsel from the Levinter firm said that she intended to bring the motion but never did so. New counsel from the same firm did not realize that the required motion had not been brought until September, 2010, and although he may have inadvertently failed to realize that the motion was necessary, there was no inadvertence on his part in respect of the delivery of the notice of abandonment in the first place.

[24] There is also no evidence from any of the plaintiff’s counsel that would amount to the compelling special circumstances referred to by Bell J. in GasTOPS, supra. This is especially the case given the delay of almost six years between the delivery of the notice of abandonment on July 18, 2005 and the initial service of this motion in May, 2011 and the fact that the pre-trial conference and trial are scheduled to proceed on January 13, 2012 and March 19, 2012 respectively.

[25] Plaintiff’s counsel on this motion also submitted in argument that the “fresh eyes” of plaintiff’s new counsel subsequent to the delivery of the notice of abandonment amounted to the special circumstances required to allow the plaintiff to withdraw the notice of abandonment. As I stated during argument, new counsel’s realization that the statement of claim should have included a claim against TTC Insurance for unidentified motorist coverage was nothing more than a recognition of what the first counsel should have done at the outset, and as such does not constitute compelling special circumstances.

[26] Counsel for the plaintiff also submits that this motion may be brought notwithstanding the notice of abandonment where there was never any disposition of the motion on its merits. However, neither Farley J. nor Bell J. in their statements of the law suggests that the absence of a decision on the merits constitutes grounds to withdraw the notice and allow the motion to proceed.

Conclusion

[27] For these reasons, the motion to withdraw the notice of abandonment is dismissed. Accordingly, there is no need to address the issue of whether the limitation period is a bar to the granting of leave to amend the statement of claim. The motion as a whole is also dismissed.

[28] If counsel cannot agree to the disposition of the costs of the motion, they may make written submissions, not exceeding three pages, the defendants within 30 days and the plaintiff within the following 15 days.

Master Graham

DATE: January 3, 2012