ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-40135
DATE: 2013/02/20

B E T W E E N:

BRUCE MARKS, IRINA MARKS AND JULIA MARKS BY HER LITIGATION GUARDIAN BRUCE D. MARKS

Richard Marks, for the Plaintiffs

Plaintiff

• and -

THE CITY OF OTTAWA, JUSTIN MAHEUX, JENNIFER NATIVIDAD and DEREK PETCH

Pierre Champagne for the Defendants Petch and the City of Ottawa and Alicia Natividad, for the Defendants Maheux and Natividad

Defendants

HEARD: November 22, 2012

REASONS FOR DECISION

James J.

Introduction

1The plaintiffs move for an order:

i) granting leave to permit them to amend the title of the statement of claim by discontinuing the action as it relates Irina Marks and Julia Marks by her litigation guardian Bruce D. Marks;

ii) adding Stuart Huxley as a party defendant; and

iii) granting leave to deliver a fresh as amended statement of claim.

Facts

2The plaintiffs, Bruce Marks and Irina Marks are husband and wife and Julia Marks is their daughter. They reside at 296 Royal Avenue in the City of Ottawa. The request to permit Irina Marks and Julia Marks to discontinue their claims is not opposed and accordingly, for ease of reference I will refer only to the plaintiff Bruce Marks in these reasons for decision.

3The defendants Justin Maheux and Jennifer Natividad lived beside the plaintiff at 300 Royal Avenue.

4The defendant Derek Petch is a bylaw enforcement officer employed by the defendant City of Ottawa (the “City”).

5Stuart Huxley, the person proposed to be added as a defendant, is a lawyer employed by the City of Ottawa.

6In the spring of 2007, the defendants Maheux and Natividad sought the permission of the plaintiff to enter onto the plaintiff’s property to facilitate work on the foundation of their home. A dispute arose respecting the conditions attached to the plaintiff’s permission. These defendants then applied for a right-of-entry permit from the City of Ottawa allowing the work to proceed. The defendant Petch was the bylaw enforcement officer who handled the request for a right-of-entry permit. A permit was issued on May 24th, 2007.

7The plaintiff applied for an interlocutory injunction to restrain his neighbors from continuing with the work on the grounds that there were irregularities surrounding the issuance of the permit. A hearing in June 2007 resulted in an order that the injunction should not be continued.

8Later that summer the City commenced a prosecution against the plaintiff alleging a contravention of the City’s fencing bylaw. The plaintiff successfully defended the bylaw prosecution on the grounds that the structure complained of did not fall within the scope of the bylaw regulating fences.

9The City initially sought to appeal the dismissal of the charge but did not proceed with the appeal.

10The plaintiff commenced this action in late 2007 alleging in part that the defendant Petch acted maliciously in pursing the bylaw prosecution.

11At a motion in August 2008, Power, J. ordered the City to produce certain documentation in its possession relating to the matters in issue. The City provided these documents to the plaintiff in November 2008. They included notes of discussions between Petch and Huxley respecting the injunction motion in June 2007 and emails between them respecting an assessment of whether the structure on the plaintiff’s property offended the fence bylaw.

12The plaintiff views these documents as evidence that Huxley was the “dominant force” behind the prosecution of the plaintiff.

13In August of 2009 the plaintiff sought leave to amend his Statement of Claim seeking damages against the City and Derek Petch for intentional causation of mental suffering and distress, malicious prosecution, negligent investigation and prosecution, counselling malicious prosecution and negligent counselling of prosecution.

14In February 2010 the plaintiff moved for an order adding Huxley as a defendant to the action. This motion was adjourned indefinitely.

15Some aspects of the decision of Power, J. were appealed to the Court of Appeal which resulted in a new proposed fresh as amended Statement of Claim in February 2012 which I understand is the version attached at Tab 2 of the Plaintiff’s Brief of Documents (the “February 2012 version”). This version of the statement of claim does claim any damages in relation to Huxley in the prayer for relief at paragraph 1 but paragraphs 39, 40 and 57 make allegations and set out particulars of malice directed at Huxley. In the version now proposed by the plaintiff (attached to the Revised Notice of Motion at Tab 1 of the Revised Plaintiff’s Motion Record) there is a new subparagraph 1 bb) (shown with double underlining) as follows:

bb) damages from the defendant Stuart Huxley and against the City of Ottawa as being vicariously liable for the acts of Stuart Huxley as follows:

(i) Negligent investigation in the amount of $150,000;

(ii) Punitive damages in the amount of $100,000;

(iii) Misfeasance in public office in the amount of $150,000;

(iv) For malicious prosecution of the plaintiff Bruce David Marks in the amount of $150,000 together with special damages for loss of income and expenses incurred to defend the unwarranted prosecution.

16In addition, the current proposed version of the statement of claim deletes the plaintiff’s claim for declaratory relief that the bylaw that governs the issuance of right-of-entry permits is “ultra vires of the Bill of Rights and the Charter of Rights and Freedoms” and “contrary to the principals (sic) of natural justice” and therefore void.

17The motion to add Huxley, originally launched in February 2010, remained outstanding and unresolved until the hearing before me in November 2012. He was not shown as a defendant in the February 2012 version although the claim contains allegations against him. In subsequent communications with the plaintiff, the City admitted that Huxley’s actions were undertaken as an employee operating within the scope of his employment and that it is vicariously liable if damages are awarded in relation to his conduct.

18In June 2012, the plaintiff delivered a revised version of the Notice of Motion to add Huxley as a defendant.

19During the course of arguing this motion, I was made aware that the City offered to permit the plaintiff to examine Huxley for discovery without adding him as a party. This proposal was apparently not acceptable to the plaintiff as the plaintiff proceeded with the motion. It is arguable that this unaccepted offer is subject to settlement privilege and should not have been referred to during the submissions although the plaintiff made no complaint. Out of an abundance of caution I have not considered this point as part of my deliberations.

Issues

20The plaintiff relies on Rule 26.01 which provides that an amendment can be made at any stage of a proceeding unless it would cause non-compensable prejudice and says there is no prejudice arising from the proposed joinder of Huxley and the related amendment to the statement of claim. The plaintiff’s revised Notice of Motion does not refer to Rule 5 which deals with joinder of claims and parties.

21The defendants Petch and the City take the position that:

a. the time limit to add Huxley as a defendant has expired;

b. the plaintiff failed to rebut the presumption of prejudice that arises upon the expiration of a limitation period;

c. the plaintiff does not have a cause of action against Huxley;

d. naming employees acting in the scope of their employment as individual defendants usually requires independently tortious conduct or evidence of separate identity and interest and these features are not present in this case;

e. the delay in prosecuting the motion to add Huxley as a defendant amounted to an abandonment of the motion; and

f. adding Huxley to the lawsuit would be an abuse of process.

22The defendants Maheux and Natividad are not opposed to the discontinuance request or the request to delete of part of the declaratory relief in relation to bylaw 2005-326 but seek their costs.

Analysis

23In my view the analysis of issues should commence with the question of whether there is an intervening limitation period that militates against adding Huxley as a defendant. The proposed amendment of the statement of claim is a subsidiary issue.

24In many cases the calculation of an applicable limitation period is governed by the notion of discoverability. Here, the City and Petch refer specifically to the plaintiff’s contention that Huxley’s role in the prosecution became known to him in December 2008 when the internal City communications were disclosed. Applying the discoverability principle, these defendants argue that the limitation period applicable to Huxley expired in December 2010 at the latest. I agree with this submission.

25The decision in Joseph v. Paramount Canada’s Wonderland 2008 ONCA 469, [2008] O.J. No. 2339 (C.A.) makes it clear that the broad language of Rules 5 and 26 of the Rules of Civil Procedure must yield to the operation of a limitation period. In this case, on the plaintiff’s own evidence, the limitation period expired two years after the plaintiff became aware of Huxley’s role through his review of the City’s records. The fact that the motion to add Huxley was delivered but not argued before the expiration of the limitation period does not improve the plaintiff’s position. There was neither evidence of an agreement that the limitation period would not run during the period of the adjournment nor circumstances in which an estoppel could be invoked. The delivery of the motion, standing alone, does not stop the clock. Motions must be successfully argued in order to claim the benefit of the relief sought.

26As a result of my determination that it is too late to add Huxley as a defendant, it follows that a request to amend the Statement of Claim to assert a claim for damages against him should not be permitted. It may be that amendments sought in the February 2012 version (the single underlined portions) have never formally been authorized by an order. The February 2012 version is now superseded by the current version attached to the Notice of Motion. I expect that now that this motion has been dealt with the amendments can be finalized, if this still needs to be done, presumably by way of a consent. I say this because at Tab 3 of the Plaintiff’s Book of Documents is a letter from Mr. Champagne, the lawyer for Petch and the City, dated October 2, 2012 wherein he says, “With respect to your request that we advise on the amendments to the Statement of Claim Mr. Huxley as a party defendant, I confirm that the only issue is the addition of Mr. Huxley as a party defendant.” I acknowledge that finalizing the Statement of Claim by deleting only the pray for relief against Huxley and some of the declaratory relief respecting bylaw 2005-326 will still leave some allegations leveled at Huxley in the body of the Statement of Claim. This seems anomalous and untidy but is manageable. I have the impression that the City as a named defendant is prepared to bear the burden of any liability that may attach to his actions. However if I am wrong in my understanding of the current situation, it may be that a further motion respecting amendments, adjusted to reflect the outcome of this motion, may be necessary.

27Having concluded that the plaintiff is not entitled to add Huxley as a defendant due to the operation of the Limitations Act, 2002, it is not necessary to deal with the alternate submissions of Petch and the City.

28In addition to the foregoing issues, the parties raised an additional matter arising from the endorsement of Power, J. on February 9, 2012. At that time he was asked to deal with the issue of costs with respect to the various proceedings that had taken place. He said that all the costs accruing to date that had not been specifically addressed should be reserved “to the judge who will preside over the final decision in this matter or to such other judge that counsel may agree to put the matter before and that judge agrees to take it prior to final disposition.” I declined a request to deal with these costs.

29The final item to be addressed is the issue of costs respecting this motion. All parties delivered costs outlines at the conclusion of argument. Petch and the City submitted a bill of costs for fees of $15652 on a “partial indemnity/blended” basis, showing a total of 23.2 hours for senior counsel and 66.3 hours for junior counsel. The time spent seems high but the matter has been protracted over a considerable period of time. By way of comparison, the plaintiff’s bill of costs claims partial indemnity costs of $25095 based on 71.7 hours.

30I do not agree with the notion of a blended partial indemnity rate in the circumstances of this case. The basis for calculating the blended rate is not explained but likely relates to a combining of junior and senior rates. When, as in this case, the junior lawyer does most of the work, it can have effect of bumping up the partial indemnity rate of the less expensive lawyer.

31When determining an appropriate costs award it is important to remember that the process does not just involve a tallying of hours spent by the successful party but also requires an assessment of what a losing party could reasonably have been expected to pay. The amount needs to be reasonable in all the circumstances and based on a consideration of the factors enumerated in rule 57.01.

32In my view the plaintiff has been substantially unsuccessful on this motion. The main issue was whether Huxley should be added as a party and this has been determined against the plaintiff. The disposition of costs should reflect this fact. Also, the issue has been in play for a lengthy period of time and I think it is fair to say it has had an adverse impact on both the efficient prosecution of the action and the amount of time and effort expended by the parties.

33Maheux and Natividad have submitted a bill of costs for fees of $6450.00. Ms. Natividad says the claim of these defendants deals only with ”that part of the Plaintiffs’ motion to amend the title to the Statement of Claim to remove the Plaintiffs, Irina Marks and Julia Marks by her Litigation Guardian, Bruce Marks, as Plaintiffs, to discontinue the said Plaintiffs’ claims against the Defendants, and to remove the allegations relating to the validity of the Right-of-Entry Bylaw”. She says “that the Defendants had to respond to the claims raised by the Plaintiffs related to Irina Marks and Julia Marks and the claims with respect to the City of Ottawa Right-of-Entry Bylaw in their pleadings”. The bill of costs refers to revising the Statement of Defence (8 hours), revision of Statement of Defence and counterclaim (2 hours), review of fresh as amended Statement of Claim (3 hours) and review of further draft of Statement of Claim (2 hours) plus a counsel fee for appearance of $1050.00. I am unsure of what is meant by the reference to her partial indemnity rate of “up to $300 per hour”, especially when the full indemnity rate is not disclosed. Although Ms. Natividad attended the motion and requested costs for “preparation for hearing and review of facta and supporting material” (3.5 hours), she filed no material and made no submissions on the main issue. Undoubtedly there is a cost associated with responding to the plaintiff’s changes in position (discontinuance and amendments) but I find the amount requested excessive and will allow partial indemnity recovery of 9 hours at $200.00 per hour plus HST.

Disposition

34An order shall issue as follows:

i) The plaintiffs Irina Marks and Julia Marks by her litigation guardian Bruce D. Marks are granted leave to discontinue their action;

ii) The request to add Stuart Huxley as a defendant is dismissed;

iii) The request to amend the statement of claim in accordance with the version attached to the Revised Notice of Motion is dismissed without prejudice to a subsequent motion to amend so long as the proposed amendments are not inconsistent with these reasons for decision;

iv) The plaintiff shall pay costs to the defendants Petch and the City of Ottawa fixed in the amount of $12500 for fees plus HST and 541.69 for disbursements, including HST and to the defendants Maheux and Natividad fixed in the amount of $1800.00 plus HST. The costs shall be paid within 30 days.

Mr. Justice Martin James

DATE RELEASED: February 20, 2013

OTTAWA COURT FILE NO.: 07-CV-40135