SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 612, 1995
DATE: 2012/07/18

Parties

RE: RENE BAZINET

Plaintiff

AND

CANDICE ELIZABETH SUTHERLAND, as litigation guardian of the ESTATE OF LINDA CAROL SUTHERLAND and of the ESTATE OF BRIAN ROBERT SUTHERLAND, and MAN-AIR SERVICES LTD.

Defendants

AND BETWEEN:

CANDICE ELIZABETH SUTHERLAND, as litigation guardian of the ESTATE OF LINDA CAROL SUTHERLAND and of the ESTATE OF BRIAN ROBERT SUTHERLAND, CANDICE ELIZABETH SUTHERLAND, on her own behalf and DERRICK ROBERT SUTHERLAND

Plaintiffs by Counterclaim

AND

RENE BAZINET

Defendant by Counterclaim

BEFORE: The Honourable Mr. Justice Norman M. Karam

COUNSEL:
Michael C. Birnie, Counsel for the Plaintiff and Defendant by Counterclaim

Robert J. Allen, Counsel for the Defendants and Plaintiffs by Counterclaim

HEARD: May 18, 2012

Karam J.,

[1] This is a motion brought by the defendants, plaintiffs by counterclaim, seeking leave to appeal to the Divisional Court from an order granting the plaintiff leave to amend his statement of claim in this proceeding, pursuant to rule 26.01 , of the Rules of Civil Procedure .

[2] This action arises out of an airplane crash, which took place on May 19, 1993, and resulted in personal injuries to the plaintiff and the death of the defendant pilot. This action was commenced on May 18, 1995. The plaintiff’s original statement of claim pleaded only the ownership and operation of the aircraft, the fact of the accident and the doctrine of res ipsa loquitur , but made no reference to a specific act of negligence.

[3] In December of 2011, the plaintiff brought a motion returnable January 3, 2012, which was adjourned and heard on February 3, 2012, seeking to amend his statement of claim to plead a specific act of negligence, an engine failure due to fuel starvation or fuel exhaustion.

[4] At some point after the receipt of the notice of motion in this matter, the defendants retained an investigator to investigate the specific act of negligence then being alleged for the first time by the plaintiff. After a consent adjournment on the first return of the motion on January 3, 2012, counsel for the defendants sought a further adjournment to obtain a report from the incomplete investigation on the second return of the motion on February 3, 2012.

[5] The motions Judge refused the defendants’ second request to adjourn and proceeded to hear argument and later delivered written reasons, allowing the plaintiff’s motion to amend. The defendants argued that, by pleading a specific act of negligence at this point in the litigation, the plaintiff was alleging a new cause of action which was statute-barred. The motions judge found that there was no new cause of action being raised, since by pleading res ipsa loquitur the plaintiff raised the inference of negligence, so as to establish a prima facie case.

[6] At the same time, the defendants brought its own motion to strike certain portions of the affidavit material being relied upon in support of the plaintiff’s motion. In his written reasons, the motions judge made no reference to the defendants’ motion and as I understand counsel, the parties have taken no steps to direct that issue back to him. I am satisfied that although he made no specific reference to the defendants’ motion to strike, in allowing the plaintiff’s motion to amend the statement of claim, he assessed the evidence in question giving it whatever significance he deemed necessary. He simply chose not to make reference to it in his reasons, as he was entitled to do.

[7] With respect to the fresh evidence sought to be introduced on this proceeding, I do not propose to consider any evidence that was not before the motions judge, which in effect would result in a re-hearing of the original motion. After reviewing the affidavit of Robert Allen, sworn May 8, 2012, I am satisfied that the information referred to therein has been largely available over the life of this action and presumably would have been part of the original investigation which was conducted shortly after the plane crashed. The prejudice referred to by Mr. Allen in locating witnesses is most probably the result of the great delay in getting this action to trial, a situation which can be laid at the feet of both parties. In any event, I am not persuaded that the proposed fresh evidence would have any meaningful impact on my ruling.

[8] Rule 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 , governs the issue of granting leave.

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[9] Counsel relied upon the decision in Timbers Estate v. Bank of Nova Scotia as a conflicting decision of this Court, as referred to in rule 62.02(4) (a). I would go so far as to suggest that there are many decisions involving amendments to pleadings decided on both sides of the issue, although that particular decision can be distinguished on the basis that the motions judge in that case found that the proposed amendments or part of them amounted to a new cause of action. However, rulings of that nature occur in widely varying circumstances, such that judicial discretion based on the facts of each action must be exercised, almost as a matter of course. As pointed out by others, there is an abundance of jurisprudence interpreting rule 26.01 . To that extent, I am of the opinion that it is unnecessary to have this matter decided by a higher Court on these particular circumstances.

[10] With respect to rule 62.02(4) (b), I can find no reason to doubt the correctness of the order. The motions judge concluded that by pleading res ipsa loquitur in the original statement of claim, the plaintiff had raised the issue of negligence. Whether the concept of res ipsa loquitur has been discredited since the original pleading certainly bears no relevance to the determination made by the motions judge. Therefore, he found correctly, in my view, that by alleging a specific act of negligence at this stage, the plaintiff was not pleading a new cause of action.

Finally, I am satisfied that this is certainly not a matter of such general or public importance that leave to appeal should be granted.

[11] Accordingly, this motion for leave is dismissed. The matter of costs may be spoken to on four days’ notice.

The Honourable Mr. Justice Norman M. Karam

Date: July 18, 2012