Court File and Parties

COURT FILE NO.: 07-CV-342907

MOTION HEARD: November 29, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 07-CV-342907 Ghany v. Federal Express et al.

BEFORE: Master Joan Haberman

COUNSEL: Singh, D. for the moving party Link, M. for the responding party

REASONS

Master Haberman:

[1] The plaintiff, Ghany, moves for leave to further amend his Amended Statement of Claim. In the alternative, he seeks to file a Reply.

A. HOW WE GOT HERE

1. The action and its chronology

a. Exchange of pleadings

[2] The action was commenced by Notice of Action issued in October 2007. In the first version of the statement of claim that followed, Ghany sought relief as follows:

[3] As against Federal Express Canada Ltd (FedEx):

• general damages of $1 million;

• special, compensatory and aggravated damages of $300,000; and

• punitive and exemplary damages of $50 million;

[4] As against all defendants:

o general damages of $1 million;

o special, compensatory and aggravated damages of $300,000; and

o punitive and exemplary damages of $1 million.

[5] These numbers are staggering in the Canadian context in an employment-related law suit.

[6] Ghany’s claim arises out of his employment with Federal Express Canada Ltd., where he commenced work in 1988. He was still employed by them when he commenced suit.

[7] Ghany claims that in 1991, he discovered many irregularities and unlawful activities occurring at FedEx and he began to express his concerns about same to FedEx management. He claims that FedEx reacted inappropriately by targeting (him) specifically and a series of reprisal actions were taken against him.

[8] Ghany claims that from 1992 until he commenced suit, he continued to bring these issues to the attention of FedEx management but that instead of dealing with them, they continued their reprisal action against him.

[9] Ghany lists some of the alleged irregularities and unlawful activities he says he complained about. These included:

o Release of shipments to customers without Canada Customs clearance;

o Release of undervalued shipments contrary to the Customs Act (the Act) and its regulations;

o Removal of goods from the warehouse without approval of the customs officer as required;

o Release of food products without Canadian Food Inspection Agency approval and making changes to the countries of origin to circumvent the application of more stringent rules; and

o Helping its clients evade duty and taxes on shipments.

[10] Ghany also alleges that he has reasonable cause to believe that narcotics and other contraband were being imported into Canada and though he tried to get FedEx to act on his complaints, they ignored the culprit and targeted him instead. These are all very serious allegation.

[11] Ghany sets out various reprisal actions to which he claims to have been subjected. They include suspension and demotion, threats, intimidation, humiliation, assaults and being spied on. I pause here to note that, though Ghany alleges that this is all began in 1991, he was promoted in 1992 and again in 1998 and not demoted until 2005.

[12] Ghany claims damages based on what he calls the tort of retaliatory discharge/discipline/reprisal. He also claims that FedEx is liable for negligent misrepresentation regarding its policies and business practices, and asserts that these representations induced him to report the allegedly unlawful conduct he claims to have witnessed.

[13] In addition, Ghany claims damages for breach of contract and negligence and for intentional infliction of mental or emotional distress. Punitive damages are claimed on the basis of alleged bad faith and blatant disregard of Canadian Laws and Regulations, which he claims showed an utter disregard for the safety and well being of the people, livestock and economy of Canada..

[14] In view of the type and quantum of damages claimed, it appears that Ghany sees this action as something beyond a typical wrongful or constructive dismissal suit. The fact that he began the action while still in FedEx’s employ suggests his plan is to make the action about far more than his personal situation.

[15] The defendant’s 11-page Demand for Particulars followed service of the claim, giving rise to a 19-page response from Ghany. A further Demand for Particulars came next, followed again by a further Reply to Demand for Particulars. This was the state of affairs in March 2008.

[16] Ghany did not resign from his position until April 11. 2008, six months after having issued this claim, though he claims he had been harassed from 1992 onwards. He now claims he was constructively dismissed.

[17] In July 2008, Ghany moved to amend his claim, to add two individuals to the action among other things. This motion had a long and rather tortuous history. As Fed Ex takes the position on the matter now before the court that the court has already resolved these issues in the context of the earlier motion, it is important to examine what transpired at that time.

b. The first motion to amend the claim

[18] Failure to properly confirm resulted in the first motion not proceeding in July 2008 as scheduled. Counsel were also of the view that the motion required a full hearing day, so it was assigned to Master McAfee to schedule a day for the motion. She convened a case conference for August 8, 2008 and at that time, she set a schedule, with the parties’ input, for exchange of materials. In her endorsement of that date, she expressly reminded Ghany’s counsel that motions had to be confirmed.

[19] The motion was then scheduled for full day on October 9, 2008. However, counsel for Ghany appeared in court that day with a new version of the proposed amended claim, without having first served or filed a draft. Three hours were spent in court dealing with the motion that day, and a further 3.25 hours were booked for January 20, 2009.

[20] In view of the late-in-the day appearance of new proposed amended pleading, a telephone case conference was convened in December 2008 to schedule the remaining steps that had to be completed before the motion could be heard on January 20. Once again, however, plaintiff’s counsel neglected to confirm the January 2009 motion date properly, so the motion did not proceed.

[21] The motion was finally heard by Master McAfee on February 20 and March 19, 2009 and her decision followed in August 2010.

[22] Ghany essentially proposed three types of changes to the claim: 1) addition of claim for wrongful and/or constructive dismissal and increase of quantum of damages; 2) addition of parties; 3) sundry amendments. Only those paragraphs falling within item 1 proceeded on consent. As a result, Ghany now claims general, special, compensatory, aggravated and exemplary damages totalling $101,300,000 against FedEx Canada and $11,300,000 against all defendants for the same heads of damage.

[23] None of the amendments proposed under item 2 were permitted. The master held that they constituted an attempt to add two new parties to the action – the founder and president, as well as the C.E.O and president of two US FedEx entities, both based in Memphis, Tennessee. The draft omitted reference to the residence of either and was silent with respect to Rule 17.02. Among the allegations that Ghany sought to make against the non-parties were as follows:

o They failed to take appropriate action in response to his complaints;

o They knew FeEx Canada was not complying with relevant legislation and that penalties were not being paid;

o One of the two masterminded the reprisals against him;

o They approved and encouraged employees to weed out honest and law abiding employees and to exert pressure on them;

o They were aware that employees were forced to compromise their ethics;

o They had no concerns about the unlawful acts and were only concerned about profits;

o They owned stock in the parent company and only had regard for their own personal gains.

[24] The master dismissed the motion as regards these proposed allegations on three basis: 1) Ghany was trying to expand the scope of the operation of FedEx beyond Canada without adequate foundation; 2) Ghany had failed to show a sufficient nexus between the proposed defendants and the conduct complained of; and 3) Ghany had failed to meet the high threshold for adding an office or director of a company. Potential personal financial gain was not a basis for asserting liability.

[25] As regards the final set of amendments, Ghany took the position that as no defence had been filed, the pleadings were not yet closed, so that leave to amend was not required. While the master felt he was technically correct, she relied on 1174538 Ltd. v. Barzel, [2001] OJ No. 580), stating that she was satisfied that it was appropriate for the court to examine what was proposed to avoid the defendants having to move to strike .

[26] The master then turned her focus to three paragraphs, contained in a section of the pleading entitled “events leading to cause of action.”

[27] In view of FedEx’a position that the master’s previous order regarding these paragraphs should determine how the court deals with the current motion, counsel for Ghany was asked three times to point me to the paragraphs that Master McAfee was said to have already dealt with. Each time I asked, he deferred the question, choosing instead to stick to his script. Though I repeatedly made it clear that I wanted to see what the master had dealt with side by side with what he proposed now, counsel refused to deviate from his plan, advising that he would come to it later. As matters turned out, he never did.

[28] My request to have counsel turn up the three paragraphs that had already been struck was motivated by the very real problem causes by the manner in which Ghany had organized his motion materials. Three “exhibits” were filed. Each was at least 1.5 inches in thickness. Exhibit “A” contains a myriad of e-mails and court documents, all intermingled. Exhibits “B’ and “C” are each a full brief of assorted court documents.

[29] These three “super exhibits” are neither tabbed nor paginated and they are not indexed so locating anything, particularly the document that Master McAfee had before her when she wrote her reasons, has not been an easy task. It appears she, too had difficulty with the materials filed before her, as she described the location of that document in the materials that were before her when she wrote her Reasons to avoid confusion.

[30] Once I located her Reasons I was able find this pleading. This approach to filing evidence, however, was not proper and added hours to the writing of these Reasons.

[31] FedEx’s approach was also not helpful. They filed a factum but no responding record. In their factum, however, they refer to the history of the motion, from its inception before Master McAfee through various levels of appeal but none of the facts they recite in their overview are sourced and they are not supported by affidavit evidence. They also neglected to include copies of the appeal decision and the leave refusal by the Court of Appeal for my reference and assistance. A Case History does not include what occurs at other levels of the court, nor does it addresses when documents were served. This lax approach to putting evidence before the court on the part of both sides has made the task of writing this decision considerably more complex and time consuming,

[32] I now turn to the three proposed paragraphs 32.1, 32.2 and 33.3 that were before Master McAfee that FedEx claims have a bearing on the matter before me. They read as follows:

32.1

Pursuant to Paragraph 32(a), the Plaintiff further pleads and states that at all material times, the Defendants, FedEx, Pina, Norm, Murray, Connie and Donald were aware of these shipments that were being released and delivered to its customers without being cleared through Canadian Customs. For example, FedEx has yearly status reports showing the number of these shipments (escapees vs. retrievals). Particulars of this report for the year May 2005 to April 2006 for the whole of Canada show that there were approximately 2,666 failures but only 146 were retrieved. The Plaintiff further pleads that pursuant to the Customs’ Act 19(1) [sic], FedEx is/was required to file a B3 voluntary entry with respect to these shipments which were released without proper Customs clearance, but this was not carried out/being carried out. In the alternative, even if it was carried out it did not account for all these shipments.

32.2

In addition, this report also shows that there were approximately 19,549 shipments exported without proof of report.

32.3

The Plaintiff further pleads and states that as a result of the foregoing, the potential “AMPS” penalties to FedEx customers just for the period of May 2005 to April 2006, would have been approximately 10-million dollars. The Plaintiff pleads that this has to be an ongoing problem right to the present (sic).

[33] Master McAfee held that paragraph 32.1 (from “for example”) and 32.2 amounted to pleading evidence so were therefore not proper, while paragraph 32.3 pleaded a legal conclusion, so was also not a proper pleading.

[34] As a result, she allowed the amendment with respect to these three paragraphs only with respect to the first sentence of paragraph 32.1. She dismissed the motion as regards everything else pleaded in those paragraphs, without prejudice.

[35] As regards the remainder of the proposed changes, these, too, were in large part dismissed without prejudice. The master was clear in her Reasons what she meant by “without prejudice”:

Accordingly, the motion is dismissed without prejudice to the plaintiff seeking a further amendment that is not contrary to the Rules or the applicable case law.

[36] As a result, while the master was prepared to allow Ghany to return on another day with further amendments to his pleading, it was on the basis that whatever he proposed at that time complied with the Rules of pleading as interpreted by case law. It was certainly not intended that he be permitted to return with essentially the same or same type of allegations, simply reworded. Full compliance with the Rules regarding pleadings was and remains essential.

[37] Ghany appealed part of the master’s decision to the Divisional Court. Though it was open to him to do so, he chose not to appeal to the master’s order dismissing his motion with respect to paragraphs 32.1, 32.2 and 32.3, focusing instead on the issue of his attempt to add parties.

[38] The Divisional Court upheld the master in April 2010 and leave to appeal to the Court of Appeal was denied in August of that year. Although both decisions are referred to in FedEx’s factum, they failed to file a record containing either.

[39] Even then, Ghany took his time filing an amended Statement of Claim in accordance with Master McAfee’s order. This was not done until January 17, 2011, five months after the end of the appeals process. Ghany had ample time during that period to consider how to reframe his pleading.

[40] A statement of defence was served in February 2011.

2. This motion and its evolution

[41] In July 2011, the plaintiff served a proposed Reply and sought the defendants’ consent to file same. The defendants apparently agreed to allow the late filing, but they objected to two of the proposed paragraphs, 4 and 5, in that they sought to reintroduce allegations that had already been struck as evidence.

[42] These paragraphs read as follows:

4:

The Plaintiff states that Management ignored the Plaintiff’s complaints about the ongoing illegal activities because to them although these complaints were legit (sic) they were ’minimal” (sic) compared to the other more serious legal activities every single hub in Canada of Federal Express Canada Ltd. was already involved in.

With respect to the afore-mentioned paragraph, the Plaintiff pleads and states that contrary to its obligations pursuant to Customs-Trade Partnership Against Terrorism (C-TPAT), Partners in Protection (PIP) and Customs Regulations, a significant percentage of shipments involving high value merchandise and /or controlled goods for which Federal Express Canada Ltd. is/was the carrier are/were exported without the proper Customs Paperwork (B13A). In addition, a significant imported shipments (sic) were also being released without the proper Customs Paperwork.

[43] This motion originally came before Master Brott on May 30, 2012 as a motion for leave to file a Reply. Ghany, however, sought to adjourn his motion at that time on the basis that new information had come to light. As a result, he decided that he now preferred to amend his amended statement of claim rather than file a reply. The motion was therefore put over to August 14, 2012.

[44] The timing of the adjournment request is suspect. Master McAfee had struck various portions of the claim without prejudice, while others were consented to. A redraft was therefore in order. Ghany took a considerable period of time working on that redraft before delivering an amended claim, and when he did so, he struck to the letter of the law regarding pleadings as enunciated by the master. He did not try to again bring in allegations that had been struck – at least, not in that pleading. It seems he decided, instead, to save those allegations for his Reply.

[45] When the Reply was challenged, FedEx filed a factum in which they state as follows:

Rule 25.06(5) provides that an allegation that is inconsistent with an allegation made in a party’s previous pleading or raises a new ground of claim shall not be made in a party’s subsequent pleading, but by way of amendment to the previous pleading.

[46] In his first set of proposed amendments to his statement of claim, Ghany had pleaded that FedEx’s motivation for ignoring his complaints was profit. He claims that FedEx prioritized satisfied clients over compliance with the law in order to maximize the company’s profitability.

[47] In the Reply, however, Ghany raises, for the first time, a different motivating factor. In essence, he now wants to say that, though FedEx management knew that everything he was complaining about was true, they didn’t deal with any of it as they had far larger issues on their hands to deal with in terms of illegal activity. He then lists the alleged illegalities

[48] This is a completely new allegation and, as such, offends the rules of pleading insofar as what can and cannot be inserted into a Reply. By putting an allegation of this kind in his reply, Ghany effectively pre-empts FedEx’s ability to respond to it.

[49] Thus, although Ghany does not illuminate us by explaining what “new information” came to light that led him to ask to adjourn his own motion in court in order to, once again, shift his position, it seems the “new information” was likely the factum filed by FedEx itself from which he learned that he could not do what he was trying to do by way of Reply.

[50] Master Glustein adjourned the motion to August 14, 2012 as Ghany requested, putting yet another timetable in place for exchange of materials. On August 14, 2012, however, the motion was adjourned yet again, to November 29, 2012.

[51] What is now before his court is a motion to amend the amended statement of claim, to add two paragraphs as follows:

34.1

The Plaintiff pleads and states that Management ignored the Plaintiff’s ongoing activities because to them although these complaints were legit (sic) they were ‘minimal (sic) compared to the other more serious illegal activities every single hub in Canada of Federal Express Canada was already involved in. Management was fully aware of these more serious illegal activities.

34.5

With respect to the afore-mentioned (sic) paragraphs, the Plaintiff pleads and states that contrary to its obligation pursuant to Customs-Trade Partnership Against Terrorism, Partners in Protection (PIP), and contrary to Customs Act. S. 95 and Reporting of Exported Goods Regulations (SOR/2005-23) a significant percentage of shipments involving high value merchandise and/or controlled goods for which Federal Express Canada Ltd .is/was the carrier are/were exported without the proposer Customs Paperwork (B13A). In addition, a significant imported shipments (sic) were also being released without the proper Customs Paperwork contrary to Customs Act S.19(1). Full Particulars about these imported and exported shipment are continued in the yearly GTS UPDATE DOCUMENTS. Management was aware of these GTS UPDATE DOCUMENTS.

[52] In the alternative, Ghany seeks to file a Reply containing the same paragraphs as noted earlier. These assertions are almost identical to those that Ghany seeks to add to his amended claim.

B. THE PARTIES' POSITION

1. Moving Party

[53] Ghany’s counsel began his submission by urging me not to commit the same “miscarriage of justice’ that had resulted from the previous motion. This was quickly followed by an assurance that Ghany was not trying to challenge the Divisional Court’s decision or to undo what has been done, though he states that he totally disagreed with what the master had done. Counsel did concede, however, that he had not appealed from the portions of Master McAfee’s order that did not involve addition of the two Americans executives as he felt those parts were correct.

[54] While I was endeavouring to make sense of these submissions, Ghany’s counsel asked for an adjournment. Aside from the fact that he was unable to explain why he wanted to put this over yet again, it had now been over 5 years since the action was commenced and we were still tinkering with the pleadings.

[55] Further, Master Brott included a term in her May 30, 2012 order to the effect that this motion was peremptory to the plaintiff. Ghany, having delayed the progress of his own motion to amend the pleading, was now out of adjournment requests. There was no evidence of any juridical imperative supporting the need for an adjournment so no basis to consider deviation from this term in Master Brott’s order.

[56] Counsel continued in that manner, focusing on the miscarriage of justice perpetrated against his client in the earlier motion, suggesting that he could return to court and try it all again as, to the extent that aspects of the earlier motion had been dismissed, that order had been made on a without prejudice basis.

[57] Counsel continued to insist that there was no evidence pleaded in the new version of the proposed amendments and that this version is completely different from what they tried to plead last time. He maintained that FedEx’s motives in ignoring Ghany’s complaints were important and he denied that bald allegations were being advanced.

[58] Counsel also tried to allay concerns about these allegations taking on a life of their own and driving the discovery process. His view is that he needn’t explore this issue further as he has the evidence he needs. In this regard he relies on the factum filed by FedEx before the Divisional Court.

[59] However, when one examines what counsel relies on, it appears he misunderstands the evidence – rather than admitting what Ghany asserts, the witness simply sets it out, then explains why it is incorrect. This is repeated in the factum. These are not admissions – they are efforts to correct Ghany’s allegations.

[60] None of the cases filed by Ghany were of assistance as they were factually very different. There is no need to go through them and distinguish each.

2. Responding Party

[61] FedEx, having already fought a lengthy pleadings motion with Ghany, relied on earlier evidence and transcripts of cross-examinations put before the court last day and relied on by Ghany on the return of this motion.

[62] Factually, their position is that FedEx Canada is a Canadian incorporated company employing approximately 5,000 employees and processing over 15 million shipments imported into Canada annually.

[63] The individual defendants all work in FedEx’s Global Trade Services (GTS) department, which handles customs clearance and brokerage processes for international shipments. They are located at 8 ports of entry, including Mississauga.

[64] Ghany worked in the GTS department in Mississauga as a member of the low value shipment confirming group of customs brokers. That group rates shipments that are imported into Canada. They have no dealings with goods exported from Canada.

[65] In his first pleadings motion, Ghany sought to add allegations about good both imported into and exported from Canada without proper documentation. In large part, that motion was dismissed on a without prejudice basis. Ghany opted not to appeal from the order regarding paragraph 32.1, 32.2 and 32.3 and though those paragraphs, too were dismissed without prejudice, he failed to include a redraft of them in the new pleading he delivered after completing the appeal process.

[66] FedEx submits that these two paragraphs should not be permitted in either an amended statement of claim or a reply on a number of grounds. They claim they are irrelevant and that both paragraphs plead evidence, rather than material facts. They also assert that the inclusion of these allegations in the pleading may unduly delay a fair trial of the action. Further, as Master McAfee stipulating that the she was dismissing parts of the original motion on a without prejudice, the time to amend those portions was before delivering a new pleading, not after FedEx has already delivered a defence to that pleading.

[67] Further, FedEx claims that proposed paragraph 34.5 alleges shipments that were made in violation of customs legislation that are different from those that Ghany complained about. Again, the question of relevance arises.

C. THE LAW, ANALYSIS and CONCLUSION

[68] Rule 26.01 provides the framework for pleadings amendments. In general, motions to amend a pleading can be brought at any time in a proceeding and must be granted unless to do so would result in prejudice that cannot be compensated for in costs or an adjournment.

[69] Case law has also made it clear, however, that amendments should not be permitted if what is proposed could be struck once made (see 1174538 Ontario Ltd. v. Barzel [2001] OJ No. 580). Thus, proposed amendments must comply with the rules of pleading. It is trite law to say that only material facts should be pleaded, not the evidence by which a party intends to prove those facts.

[70] When inconsistent allegations are pleaded, they must be pleaded in the alternative (Rule 25.06(4). In addition, proposed amendments must contain sufficient particulars, as would be the case if they were contained in the original pleading (see Kenebar v. Midland (Town) (1994) 1994 7221 (ON SC), 16 O.R. (3d) 753).

[71] A pleading must also be tenable at law (see National Trust v. Furbacher, [1994] OJ No. 2385). Thus, some exploration of what is pleaded and whether it can support a cause of action or is simply extraneous to it is important. If an allegation is not relevant to liability or to the damages sought as a result, it has no place in the pleading if it has been inserted only for colour. As an allegation of that nature would be struck, an amendment to that effect should not be permitted (see Senechel v. Muskoka (District Municipality), [2003] OJ No. 885).

[72] Similarly allegations that are not relevant to the outcome of the action would be struck as irrelevant (see Cavanaugh v. Grenville Christian College, [2009] OJ 875).

[73] What is relevant to Ghany’s claim are the following assertions:

• He worked for FedEx Canada;

• In the course of his employment, he became aware of certain irregularities and illegalities;

• He brought these issues to the attention of management repeatedly;

• They ignored his complaints; and

• As a result of those complaints, he was subjected to a series of reprisals, ultimately lading to his constructive dismissal.

[74] In paragraph 34.1, Ghany seeks to stray beyond that framework to discuss FedEx’s motives for ignoring his complaints. Whether or not the type of illegal activity he refers to is or is not occurring, he has no way of knowing if FedEx is so busy with these other issues that this is the reason they ignored his complaints. This is simply conjecture on his part.

[75] While the court is required to take the facts as pleaded as capable of being proven in a motion to amend, it is difficult to do so here, where Ghany would not have been in a position to attest to what transpired in every single hub -all 8 of them – of FedEx Canada or how he would know that management was fully aware of these more serious illegal activities he speaks of.

[76] This new assertion also conflicts with his paragraph 44.9 of the pleading that was before Master McAfee, where it was alleged that the two US executives that Ghany sought to add as defendants had no concerns about these illegal acts as they were only concerned about profits. He was not permitted to make that amendment – so now he has changed his position completely and come up with a totally different motivating factor.

[77] In view of the fact that this is a second attempt to amend this pleading, the court can and should be wary of how Ghany is going about this. These assertions are difficult to accept as provable in view of how they have been pleaded and what Ghany has already tried and failed to achieve. This “spaghetti approach” of throwing a proposed pleading out there to see what sticks to the wall is an expensive and rather abusive way to run an action. When assessed in the context of the exorbitant amount of damages claimed, one cannot help but wonder what it is Ghany is trying to do here. Litigation should never be viewed as a lottery.

[78] At the end of the day, nothing in this action can turn on whether greed or being distracted by more pressing issues is what was behind FedEx having allegedly ignored Ghany’s complaints over a period of approximately 15 years. The issue here is whether or not they ignored his complaints – not why they did so, if indeed, that was the case. The “why” as pleaded adds nothing to the equation. It simply raises considerable suspicion about FedEx’s operations. If that was Ghany’s intent, there are other more appropriate forums for an inquiry of that nature. It has no place in a civil action that Ghany is bringing for his own personal gain.

[79] As this allegation is totally irrelevant to the action as pleaded, the proposed amendment is not permitted.

[80] There is even less of a basis for justifying paragraph 34.5 of the proposed pleading. This is simply evidence, and not even evidence that bears any relevance to any of the matters in issue in the litigation. This paragraph does nothing more than raise alarm bells in vague terms. Which “high value merchandise”? Which “controlled goods”? What does Ghany consider “a significant percentage”? And what does any of this have to do with whether or not Ghany was constructively or wrongfully dismissed, whether he suffered damages for breach of contact or for negligent misrepresentation?

[81] Instead of focusing on the issues in the case that could lead to a recovery of damages for his benefit, Ghany is seeking to recover an extraordinary sum of money in the guise of playing whistle-blower – a role he claims to have had for 15 years. To lend credence to his theory of the case, he now seeks to demonstrate that he was right all along and that FedEx is a “bad actor” – far worse than one responsible for the complaints he made that he claims were “minimal” in contrast to what he now claims they were actually up to.

[82] By raising new issues of illegality now about which he never complained can in no way help his cause. Accordingly, this paragraph, too, cannot be permitted.

[83] The motion to amend the amended statement of claim is therefore dismissed.

[84] Nor can these assertions be included in a Reply. They are problematic for all the reasons set out above, regardless of which pleading they are inserted into. They are even less appropriate in the context of a Reply as they raise new issues which cannot be addressed by further defence pleadings. As a result, they a have no place in reply.

[85] This motion is therefore dismissed in its entirety. FedEx has already consented to the delivery or a Reply, save and except for paragraphs 4 and 5 therein.

[86] If the parties are unable to agree as to costs, I can be spoken to within 30 days from the release date of these Reasons.

Master Joan M. Haberman

Released: December 20, 2012