SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-293169

MOTION HEARD: July 3, 2012 and April 23, 2013

Parties

Re: Donna E. Spicer
Plaintiff

v.

CAA Insurance Company (Ontario)
Defendant

BEFORE: Master Thomas Hawkins

Appearances

Donna E. Spicer,
moving plaintiff in person
F: (416) 454-0412

James S. Schacter Esq. for responding defendant,
F: (416) 362-5289

REASONS FOR DECISION

Nature of Motion

[1] In this action for damages for alleged breach by the defendant of an automobile insurance policy held by the plaintiff and for many other civil wrongs, the plaintiff moves under rule 26.01 in part for leave to amend her amended statement of claim.

[2] The proposed amended fresh as amended statement of claim (the “proposed pleading”) is found at schedule “B” to the plaintiff’s factum, which factum I marked as volume two of the materials filed with me on this motion.

[3] In her notice of motion the plaintiff seeks a wide variety of relief including orders that the defendant and its lawyers be found in contempt of court. On July 3, 2012 I adjourned those parts of the plaintiff’s motion seeking contempt orders to be heard by a judge.

[4] Stewart J. heard the motion for contempt orders and dismissed those parts of the plaintiff’s motion on January 6, 2012.

[5] Although the plaintiff seeks other relief within the jurisdiction of a master, the only part of the motion argued before me was the plaintiff’s motion for leave to amend her amended statement of claim.

Motion to Amend Statement of Claim

[6] As I have said, the plaintiff brings her motion for leave to amend the amended statement of claim under rule 26.01.

[7] 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.

[8] The defendant opposes this part of the plaintiff’s motion on several grounds. Defence counsel submits that the proposed pleading does not comply with the rules of pleading because it contains pleas of evidence rather than pleas of material facts, it lacks necessary particulars, it advances untenable pleas which are clearly impossible of success, it advances statute-barred claims and it involves the withdrawal of admissions made in earlier versions of the statement of claim in circumstances that do not meet the test for withdrawing an admission in pleading.

[9] Subrule 25.06(1) sets out general rules of pleading applicable to all pleadings. This subrule 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.

[10] Leave to amend a pleading should not be granted if the proposed amendment does not comply with the Rules of Civil Procedure.

[11] Similarly, leave to amend should not be granted if the proposed amendment amounts to an untenable plea which is clearly impossible of success. See Chinook Group Limited v. Foamex International Inc. (2004), 2004 33017 (ON SC), 72 O.R. (3d) 381, per MacLeod M. at paragraph 31.

[12] Defence counsel submitted that it is necessary to go over those parts of the proposed pleading to which the defendant objects on a line-by-line basis. I agree.

[13] First, defence counsel objects parts of paragraph 1(a) of the proposed pleading. There the plaintiff proposes to allege the following.

1. The plaintiffs’ claim is for:

The Fresh as Amended Statement of Claim seeks damages for the following claims:

(a) damages in the amount of $2.5 Million, or such other amount as may be proven at trial, for Breach of Contract, Misrepresentation, Errors, Oversights and Omissions, Bad Faith, Willful Misconduct, Personal Injury and Negligence in Breach of Fiduciary Duty in compliance with The No Fault Insurance Act of Ontario and the Contract of Insurance;

[14] Defence counsel submits that the allegations of oversights, omissions and willful misconduct are too vague because no particulars of these wrongs are provided elsewhere in the proposed pleading.

[15] I agree in part. It is perfectly proper for a plaintiff to allege (for example) “the plaintiff claims damages of $500,000 for negligence” if somewhere in the statement of claim proper particulars of the negligence complained of are provided. Here, particulars of the willful misconduct are set out in paragraphs 5, 10 and 11 of the proposed pleading. However, no particulars of the errors, oversights and omissions are provided in the proposed pleading. The terms errors, oversights and omissions do not refer to specific or particular civil wrongs. It is not clear at all what the plaintiff complains of when she alleges that the defendant committed errors, oversights and omissions.

[16] Next, defence counsel submits that the statutes of Ontario do not include The No Fault Insurance Act of Ontario as alleged in paragraphs 1(a) and 17 of the proposed pleading. I agree that there is no such Ontario statute.

[17] The references to errors, omissions, oversights and to The No Fault Insurance Act of Ontario in paragraphs 1(a) and 17 of the proposed pleading are therefore struck out with leave to amend.

[18] Next, defence counsel objects to parts of paragraph 1(b) of the proposed pleading. There the plaintiff proposes to allege the following.

(b) damages in the amount of $500,000.00, or such other amount as may be proven at trial and this Honourable Court deems just from the Defendant, CAA Insurance Company (Ontario) for intimidation and physical injury causing emotional anguish and mental distress and devastating loss and harm.

[19] Defence counsel submits that the proposed pleading is completely lacking in particulars of the alleged intimidation and physical injury complained of. Nowhere does the plaintiff allege what the defendant did that amounts to intimidation, or what the defendant did or failed to do that caused the plaintiff to suffer physical injury. No dates or places are alleged. There is no allegation as to the nature of the physical injury which the plaintiff suffered. All these particulars are missing.

[20] Defence counsel also submits that the claims for intimidation and physical injury are untenable pleas clearly impossible of success because they are statute-barred. In response the plaintiff submits that none of her claims is statute-barred because they were all first pleaded a long time ago.

[21] I am unable to resolve this dispute over whether the claims for intimidation and physical injury are or are not statute-barred. I do not know when the plaintiff alleges that the defendant intimidated and physically injured her. I do not know when the plaintiff first made allegations of intimidation and physical injury because I do not have all prior versions of the statement of claim with the exception of one which is dated December 14, 2006 and one the plaintiff served in February 2012. I struck out that 2012 pleading in its entirety on July 6, 2012 because the amendments in it were never properly authorized.

[22] The December 14, 2006 amended statement of claim does not contain any allegation of intimidation or of physical injury. That pleading does allege that the defendant caused flare-ups of her pre-existing fibromyalgia condition, but the plaintiff did not allege that this was physical injury to her.

[23] In the result the words “intimidation” and “physical injury” in paragraph 1(b) are struck out with leave to amend, provided the plaintiff supplies the particulars I described as missing in paragraph [19].

[24] Next, the defendant objects to the claim for damages for spoliation of evidence set out in clause 1(c) and paragraph 11 of the proposed pleading. Defence counsel submits that spoliation of evidence is not a civil wrong forming the basis on which a court may award damages. Rather, he submits that spoliation is a term used in the law of evidence to describe the conduct of a person who knowingly destroys relevant evidence, which conduct entitles the court to draw adverse inferences against that person, but not to award damages.

[25] In paragraphs 1(c) and 11 of the proposed pleading the plaintiff alleges the following.

(c) damages in the amount of $100,000.00 or such other amount as may be proven at trial for intentional spoliation of evidence, loss of economic value of the rare custom car and injury to reputation.

11. As a result of the ongoing willful misconduct and bad faith exhibited in how they responded to the Plaintiffs’ pleas for help in recovering her stolen car and in repairing her car following properly reported and witnessed not at fault claims for car repair; this Defendant, CAA Insurance exploited the weak financial position and ill health of the now permanently disabled plaintiff and sought to benefit from the misconduct of its employees in failing to provide full insurance coverage under the Insurance Act of Ontario. The defendant CAA Insurance engaged in a pattern of cover-up in order to suppress their knowledge of wrongdoing by their employees, condoning the willful misconduct and blaming the plaintiff for her decision to comply, in good faith, with the demands of the insurer for a water test, and thereby increased the damages suffered by the plaintiff and placed the plaintiff at risk of harm. The Plaintiff states that the conduct of the employees and agents of CAA Insurance Company (Ontario) in breach of The Insurance Act of Ontario was entirely without care, deliberate, willful and intentional in disregard for the rights of the plaintiff and indifferent to the consequences. The Plaintiff is thus entitled to damages for negligence, predatory bad faith and spoliation of evidence with malicious intent.

[26] In Spasic Estate v. Imperial Tobacco Limited (2000), 2000 17170 (ON CA), 135 O.A.C. 126 the Court of Appeal held that in proper circumstances a trial judge might find that the tort of spoliation does exist. The court stated the following (at paragraph 22).

If it is established that the conduct of the respondents resulted in harm to the plaintiff by making it impossible for her to prove her claim, then it will be for the trial judge, in the context of a complete record, to determine whether the plaintiff should have a remedy. This is how the progress of the common law is marked in cases of first impression, where the court has created a new cause of action where none had been recognized before. I need refer only to Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.), as but one example … I can see no reason why the trial judge should be precluded from considering all possible remedies, including a separate tort, on the basis of the record that will be developed.

[27] In the basis of Spasic Estate, I propose to leave to the trial judge or the judge hearing a motion for summary judgment the issue of whether the tort of spoliation exists giving rise to liability in damages. I therefore decline to strike out the allegations of spoliation in their entirety without leave to amend.

[28] However, the plaintiff’s allegations of spoliation lack necessary particulars. The allegation of spoliation in paragraph 1(c) may stand. However the allegation of spoliation in paragraph 11 is struck out with leave to amend, provided the plaintiff supplies the following particulars: (a) when the act or acts of spoliation occurred, (b) what evidence was destroyed, (c) if the evidence that was destroyed was the property of the plaintiff, this should be alleged, and (d) what was or were the loss or losses the plaintiff suffered as a result of the destruction of evidence.

[29] Next, defence counsel objects to the allegation in paragraph 2 of the proposed pleading that the plaintiff’s automobile which was damaged was a “rare Pontiac”. Defence counsel submits that this is a plea of evidence rather than of material fact, which plea contravenes subrule 25.06(1). I disagree.

[30] In my view, the allegation in paragraph 2 that the plaintiff’s vehicle was a “rare Pontiac” and other allegations in the same paragraph describing that vehicle are allegations of material facts. These allegations are relevant to the issue of the pre-accident value of the plaintiff’s vehicle and the related issue of the cost of necessary repairs to that vehicle. These allegations go to the measure of damages which the plaintiff should receive if successful. I decline to strike out these allegations.

[31] Next, defence counsel objects to certain allegations in paragraph 5 of the proposed pleading. In this paragraph the plaintiff alleges the following.

5. CAA improperly denied a witnessed high impact 3 car sandwich collision not at fault claim report. During a “water test” planned by CAA, the plaintiff’s car was vandalized with heavy hammer blows to the interior engine wall, custom engine parts were torn away and a gushing water hose was forced into the dashboard interior and water was forced through the engine wall causing damages now requiring expensive restoration. CAA attempted to cover-up willful misconduct by the substitution of a “comparison” car, of different structural frame and condition which was purported to support investigative findings based upon the insurer’s misrepresentations of collision appraisals, fabricated accident report and deficient collision repairs; where there is no reasonable explanation for the insurer’s substitution of a different car for inspection or comparison in view of a witnessed 3 car sandwich collision crash report and current collision repair accident reconstruction technologies.

CAA employees and paid consultants took part in the vandalism, representing a distant rusty white base model Pontiac car as the example of the investigation. There is no reasonable explanation for the insurer’s written report of a rust hole the size of a fist in the firewall of the insured’s car, where such a defect could not possibly be seen without disassembly of the car.

[32] Defence counsel objects first to the latter part of the third sentence beginning with the words “where there is no reasonable explanation …”, and secondly to the fifth sentence beginning with the words “There is no reasonable explanation ….”.

[33] Defence counsel submits that these parts of paragraph 5 are improper allegations of argument rather than allegations of material facts. I agree. Allegations of argument do not belong in a pleading. These allegations are struck out without leave to amend. I will deal in paragraphs [55] to [63] with defence counsel’s argument that this paragraph involves the improper withdrawal of admissions.

[34] Next, defence counsel objects to paragraph 7 of the proposed pleading in its entirety. There the plaintiff alleges the following.

7. Between 1993 and 2005, CAA Insurance, either directly or through representatives conducted a number of investigations of the claims management misconduct in relation to the Plaintiff, and have refused the requirement that they be produced pursuant to the disclosure obligation set out in rule 30.02 of the Rules of Civil Procedure. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.02(1) and by the endorsement of Master Sproat, July 26, 2011. The defendants have produced nothing further to the claims management files in addition to highly edited screen prints.

[35] Defence counsel submits that the allegations in this paragraph are allegations respecting the procedural history of this action which do not belong in a pleading. I agree.

[36] The case history for this action and the material before me do not indicate that Master Sproat (now Master Jean) made any order on July 26, 2011. They do indicate that on July 25, 2011 Master Sproat disposed of five motions which the plaintiff had brought. In part of her endorsement Master Sproat ordered the defendant to produce additional documents.

[37] Allegations that a litigant such as the defendant has failed to comply with its obligations under the Rules of Civil Procedure to produce documents and has failed to comply with court orders to produce documents do not belong in a pleading. These issues should be sorted out before trial and not raised in a pleading and dealt with at trial. By dealing with these issues before trial, the court avoids the need to adjourn the trial until documents that ought to have been produced are produced.

[38] If the plaintiff is dissatisfied with the extent to which the defendant has produced documents her remedy is to bring the appropriate motion before trial and not first to raise the issue at trial. The plaintiff has done just that. She brought a motion for production of additional documents before Master Sproat and obtained an order on July 25, 2011 that the defendant produce some additional documents. Still dissatisfied, the plaintiff brought the present motion. In one of the parts of this motion which I adjourned to be heard by a judge, the plaintiff sought an order that the defendant be held in contempt of court for failure to comply with Master Sproat’s order of July 25, 2011 that the defendant produce additional documents. Stewart J. dismissed that part of the plaintiff’s motion on January 6, 2012.

[39] For the reasons set out in paragraphs [35] to [38] paragraph 7 of the proposed pleading is struck out without leave to amend.

[40] Next, defence counsel objects to the whole of paragraph 8 of the proposed pleading. There the plaintiff alleges the following.

8. CAA claims management representatives gave assurances to the Financial Services Commission of Ontario that the Insurance Act Guidelines had been met and further that the results of those investigations would be honestly and accurately disclosed, in good faith.

(b) The CAA investigators issued false and misleading reports suggesting, inter alia, that there was insufficient evidence to commence corrective proceedings in circumstances in which they honestly ought to have believed, on reasonable grounds that the individual CAA employees had committed gross misconduct in relation to the Plaintiff.

[41] Defence counsel submits that this paragraph is incomprehensible argument. In my view it is extremely vague. No dates, times or places are given. No particulars of the gross misconduct alleged in the last line of this paragraph are provided. The plaintiff seems to be alleging that the defendant misled the Financial Services Commission of Ontario as a result of which the Commission failed to take necessary corrective action. If true, that is something which the plaintiff should take up with the Commission and not with this court in the context of the present action. The allegations in paragraph 8 are not relevant to the issues in this action properly before this court. Paragraph 8 is stuck out without leave to amend.

[42] Next, defence counsel objects to the whole of paragraph 9 of the proposed pleading. He submits that it is a plea of evidence alleging wrongs done to members of the public rather than to the plaintiff herself. In paragraph 9 the plaintiff alleges the following.

9. In proceeding as outlined above, this Defendant, CAA Insurance Company (Ontario) completely breached the trust and confidence they sought to create with the public, by their own advertisements produced, published and endorsed in their own CAA Magazine, assuring the customer of Peace of Mind and Services you can trust as well as guarantees of prompt attentive service, so that the customer can relax when faced with damage to their car as the result of collision, vandalism or car theft, to restore their car to pre-collision condition.

[43] In paragraph 9 the plaintiff alleges in essence that the defendant has by means of false advertising deceived persons who are not parties to this action, namely members of the public, but evidently not the plaintiff herself. Allegations that the defendant has committed wrongs to persons other than the plaintiff are not relevant to the issues in this action. Paragraph 9 is struck out in its entirety without leave to amend.

[44] In paragraph 10 of the proposed pleading the plaintiff alleges that employees of the defendant committed acts of “predatory bad faith” in dealing with the plaintiff. Defence counsel submits that predatory bad faith is not a civil wrong known to the law. I agree. The word “predatory” in paragraph 10 is struck out without leave to amend.

[45] Next, defence counsel submits that paragraph 11 consists of argument rather than concise allegations of material fact. Paragraph 11 of the proposed pleading is quoted above in paragraph 25.

[46] Paragraph 11 is vague. No dates are given. It is not clear what the plaintiff is complaining about. The first sentence seems to be a verbose way of alleging that the defendant breached the policy it issued to the plaintiff by improperly denying her coverage. The third sentence of this paragraph, beginning with the works “the Plaintiff states that the conduct of the employees ….”, is woefully lacking in particularity. This sentence is struck out with leave to amend, provided the plaintiff supplies the following particulars: (a) the provisions of the Insurance Act, R.S.O. 1990 ch. I-8, identified by section or subsection, as the case may be, which employees and agents of the defendant breached, (b) which agent or agents of the defendant committed which breach, (c) what they did or failed to do that constituted a breach of the Insurance Act, (d) when they committed such breaches and (e) what loss or losses the plaintiff suffered as a result of these breaches. In the fourth sentence of this paragraph the word “predatory” is struck out without leave to amend for the reasons given in paragraph [44] above.

[47] Next, defence counsel submits that paragraph 12 of the proposed pleading is lacking in particularity. In paragraph 12 the plaintiff alleges as follows.

12. The Plaintiff states that the conduct of the employees and agents of CAA Insurance Company (Ontario) was high-handed, malicious, arbitrary and highly reprehensible, escalating over a period of years and departed to a marked degree from ordinary standards of decent behavior, [sic] which had the effect of increasing the Plaintiffs’ mental distress, humiliation and personal injury. As a direct consequence of the ongoing improper car insurance disputes the plaintiff has been diagnosed with Post Traumatic Stress Disorder and suffers other severe health complications. The Plaintiff is thus entitled to aggravated and punitive damages.

[48] I agree that paragraph 12 is lacking in particularity. The first sentence of paragraph 12 is struck with leave to amend provided that the plaintiff provides particulars of (a) what the employees and agents of the defendant did or failed to do that the plaintiff complains of in this paragraph, (b) which agents of the defendant committed which acts or omissions, and (c) when they did so. If the particulars are found in other paragraphs of the proposed pleading amended as I have directed, the particulars may be provided by appropriate cross-references to these other paragraphs. For example, the plaintiff may provide the necessary particulars by inserting after the word “(Ontario)” in the second line of paragraph 12 the words “as alleged in paragraphs ___, ___, and ___”.

[49] Next, defence counsel submits that paragraph 13 of the proposed pleading is another paragraph lacking necessary particulars. I agree. In paragraph 13 the plaintiff alleges the following.

13. The Defendant, CAA Insurance Company (Ontario), is vicariously liable under statute and at law for the wrongful actions caused by their employees, including those of the separate divisions of the CAA corporation or organizations, who carried on a business, whether for profit or non-profit, suppliers, contractors and consultants hired by the Defendant.

[50] Paragraph 13 is struck out with leave to amend provided the plaintiff supplies the following particulars: (a) what sections of what statute or statutes are referred to in the second line of this paragraph, (b) what acts or omissions constitute the wrongful actions referred to in the second line of this paragraph, (c) when those acts or omissions were committed or occurred (d) the names of the suppliers, contractors and consultants referred to in the fifth line of this paragraph and (e) which supplier, contractor or consultant committed which act or omission.

[51] Paragraph 13 is also an improper pleading of a conclusion of law without the supporting facts, contrary to subrule 25.06(2). This subrule provides as follows.

A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

[52] Paragraph 13 is also struck out with leave to amend provided the plaintiff provides the following particulars: the material facts that render the defendant vicariously liable for the acts or omissions of committed by its employees, suppliers, contractors and consultants which are complained of. In the case of the defendant’s employees, I assume the material fact relied upon is that the employees in question were acting within the course and scope of their employment when they committed the acts and omissions complained of. If so, that should be pleaded. If the plaintiff relies some other material facts as rendering the defendant vicariously liable for the wrongful conduct of its employees, those facts must be provided as well.

[53] Next, defence counsel submits that paragraphs 14 and 15 of the proposed pleading are lacking in particularity. Paragraph 14 leads into paragraph 15. There the plaintiff alleges as follows.

14. The Defendant, CAA Insurance Company (Ontario) was negligent in supervision of the individual employees, the particulars of which, without limiting the generality of the foregoing are as follows:

15. this Defendant knew or ought to have known that the individual employees had breached applicable contractual policies and procedures concerning the Insurance Act of Ontario and the contract of insurance when they were put on notice, since 1993 of several serious events in regard to improper claims handling and deficient repairs but failed to take steps to review or investigate the circumstances of the misconduct and misrepresentations or to mitigate the situation: and:

[54] I agree that paragraph 15 is lacking in particularity. Paragraph 15 is struck out with leave to amend provided that the plaintiff provides the following particulars:

(a) when the contractual policies referred to in the second line of paragraph 15 were breached;

(b) what contractual policies were breached;

(c) when the procedures concerning the Insurance Act, R.S.O. 1990 c I-8 were breached;

(d) what procedures concerning what sections or subsections of the Insurance Act were breached;

(e) what were the serious events referred to in the fourth line of paragraph 15;

(f) when these serious events occurred;

(g) what were the misrepresentations made to the plaintiff as alleged in the seventh line of paragraph 15;

(h) when these misrepresentations were made to the plaintiff;

(i) what was the misconduct referred to in the sixth line of paragraph 15;

(j) when that misconduct occurred; and

(k) the losses which the plaintiff suffered as a result of these breaches, serious events, misrepresentations and misconduct.

[55] Finally, defence counsel submits that the second and fourth sentences of paragraph 5 involve the withdrawal of an admission made in earlier versions of the statement of claim that the damage to the plaintiff’s vehicle alleged in these sentences was caused at least in part by Century 3000 Auto Collision Centre (“Century 3000”) and by a corporation known as “LeakPro”. In these sentences of paragraph 5 the plaintiff alleges the following.

During a “water test” planned by CAA, the plaintiff’s car was vandalized with heavy hammer blows to the interior engine wall, custom engine parts were torn away and a gushing water hose was forced into the dashboard interior and water was forced through the engine wall causing damages now requiring expensive restoration.

CAA employees and paid consultants took part in the vandalism, representing a distant rusty white base model Pontiac car as the example of the investigation.

[56] There is no reference to either of Century 3000 or LeakPro in the proposed pleading.

[57] In the amended statement of claim dated December 14, 2006 the plaintiff alleged the following in paragraphs 7, 8 and 14.

7. The plaintiff was directed by her usual GM dealer repair centre to take her vehicle to Century 3000 Auto Collision Centre (hereinafter referred to as “Century 3000”) which provided a preliminary estimate of the cost of repairs on July 23, 2004, identifying repairs to be made primarily to the rear trunk of the vehicle and the rear bumper and also front and rear suspension.

8. On or about July 27th, the senior appraiser for the defendant authorized Century 3000 to complete similar repairs to the rear end of the plaintiff’s vehicle and also front and rear wheel alignment as a precautionary measure.

9. The defendant then arranged for the plaintiff to bring her vehicle back to Century 3000 for a so-called “water test” on or about October 5, 2004 at which time the defendant’s senior appraiser and a representative of Century 3000 and a representative of a company known as LeakPro proceeded to conduct the “water test” as follows:

(a) The representative of LeakPro proceeded to go into the front passenger’s side and to pull away carpet and/or insulation and to take a hammer to the firewall while the CAA appraiser, after receiving permission from the plaintiff to take photos, lifted the engine hood, took some photos, then dug holes in the seams of the car’s engine body and then proceeded to take more photographs. When the plaintiff demanded that he stop and attempted to prevent the CAA representative from continuing to damage the car, the CAA appraiser grabbed the plaintiff by the arm and pulled her away from the car.

(b) The Century 3000 representative removed about half of a plastic or rubberized cowl section in the upper rear section of the engine under the hood and then brought out a gushing hose and forced water through an air vent into the interior of the plaintiff’s vehicle.

[58] I agree with defence counsel that because the proposed pleading makes no mention of either Century 3000 or LeakPro, the proposed pleading withdraws the earlier admission that Century 3000 and LeakPro caused at least some of the damage to the plaintiff’s vehicle of which she complains.

[59] Rule 51.05 governs the withdrawal of an admission in a pleading. This rule provides as follows.

An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.

[60] Since the defendant does not consent to the amendments in the two sentences of paragraph 5 of the proposed pleading quoted above in paragraph [55], the plaintiff requires the leave of the court to make those amendments.

[61] In Antipas v. Corneos, 1988 10348 (ON SC), [1988] O.J. No. 137 Saunders J. held that a party requesting leave to withdraw an admission in a pleading must pass three tests by establishing (1) that the proposed amendment raises a triable issue; (2) that the admission was inadvertent or resulted from wrong instructions and (3) that the withdrawal will not result in any prejudice that cannot be compensated for in costs.

[62] In my view the plaintiff has met the first and third tests. The amendments in the two quoted sentences in paragraph 5 raise a triable issue. The only prejudice to the defendant mentioned in the affidavit sworn by one of the defendant’s lawyers and found in the defendant’s responding motion record is that the defendant will be put to added expense in dealing with the amendments in the proposed pleading. This is prejudice compensable in costs.

[63] In the result, I decline to grant the plaintiff leave to withdraw the admission that part at least of the damage to her vehicle was caused by Century 3000 and LeakPro. I therefore decline to give the plaintiff leave to amend the proposed pleading in terms of the two sentences from paragraph 5 quoted above in paragraph [55]. This is without prejudice to a fresh motion for leave to amend in terms of those two sentences, which motion deals with the issue of whether the plaintiff can meet the second test for leave to amend to withdraw an admission laid down in Antipas, supra.

Costs Etc.

[64] Success on this motion has been divided. I have therefore decided to reserve the costs of this motion to the trial judge.

[65] Any particulars which I have ordered the plaintiff to provide, whether as a term of granting leave to further amend the statement of claim or otherwise, are to be provided within 20 days of the final disposition of this motion. Any requirement that the plaintiff approve the formal order disposing of this motion is dispensed with.

Original Signed______

Master Thomas Hawkins

DATE: August 8 ,2013