Superior Court of Justice - Ontario

CITATION: Davenport v. Suboch, 2013 ONSC 5212 COURT FILE NO.: CV-05-CV302832 MOTION HEARD: 20130729

RE: Tara Davenport, Plaintiff/Responding Party AND: Andrew Suboch, Defendant/Moving Party

BEFORE: Master McAfee

COUNSEL: B. R. Moodie and B. Martin, Counsel for the Defendant/Moving Party R. Plate, Counsel for the Plaintiff/Responding Party

HEARD: July 29, 2013

REASONS FOR DECISION

[1] This is a motion brought by the defendant for leave to amend the amended statement of defence.

[2] The plaintiff does not oppose the motion with respect to paragraphs 24 and 25 of the proposed amended amended statement of defence. On an unopposed basis, leave is granted accordingly.

[3] This is a solicitor’s negligence action brought by the plaintiff against her former lawyer, the defendant. Part of the negligence alleged in the action is the defendant’s failure to advise the plaintiff to commence an action with respect to a 2001 motor vehicle accident.

[4] The defendant’s amended statement of defence pleads that the defendant was never retained to represent the plaintiff with respect to the 2001 motor vehicle accident and that the particulars of the 2001 motor vehicle accident were not provided to him. The pleading also contains a denial that the plaintiff is entitled to the relief sought in the statement of claim and a denial that the plaintiff sustained the injuries, damages and losses alleged.

[5] The proposed amendments at issue are found at paragraphs 26 to 28 of the proposed amended amended statement of defence. The defendant seeks to plead an alternative defence of discoverability. The defendant seeks to plead in the alternative that any injuries, damages and losses were not discoverable until after the termination of the defendant’s retainer or that the limitation period did not expire until after the termination of the defendant’s retainer.

[6] For the reasons that follow, leave is also granted with respect to the proposed amendments at issue.

[7] The applicable Rule is Rule 26.01:

On a 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] Rule 2.01(1)(a) provides that the court may grant all necessary amendments on such terms as are just to secure the just determination of the real matters in dispute (and see Knight v. Toronto (City), 2002 CarswellOnt 4017 (Master) at para 10).

[9] The plaintiff argues that to allow the amendments would be unjust and would cause irreparable harm that cannot be compensated for by costs or an adjournment. The plaintiff argues that the amendments would be unjust because they could result in the plaintiff losing her cause of action against the defendant. The plaintiff also argues that the plaintiff relied on the defendant not pleading discoverability and that the plaintiff has lost her cause of action against the tortfeasor.

[10] The evidence filed on behalf of the plaintiff is vague and non-committal. At paragraph 22 of the affidavit of D. Wilson sworn March 27, 2013, the following is stated: “[h]ad the necessary amendments been sought and granted, depending upon the timing of same, the plaintiff may well have been required to reconsider her reluctance to commence an action.” There is no direct evidence from plaintiff as to what she would have done if discoverability had been pleaded. As was stated by Master Haberman in Knight:

The evidence regarding this issue is critical, as, pursuant to Rule 26.01, the court must allow this motion unless prejudice would result that could not be compensated for by costs or an adjournment. Thus, a mere statement as to what might or could be the case will not suffice to defeat the motion. The evidence must go further.

[11] In my view the evidence before me does not satisfy me that prejudice would result. If I am wrong and prejudice would result, in my view the prejudice alleged is not the type of prejudice that would defeat this motion.

[12] In this action, the plaintiff alleges that her former lawyer was negligent for failure to commence an action with respect to the 2001 motor vehicle accident. On the basis of the material before me there is an issue with respect to when the applicable limitation period may have expired or if the applicable limitation period has expired. If the applicable limitation period did not expire until after the defendant’s retainer was terminated, the plaintiff cannot rely on a subsequent failure to commence an action with respect to the 2001 motor vehicle accident as evidence of prejudice that would result in the denial of the amendments at issue. As stated by Master Pope in 2054509 Ontario Ltd. v. Corrent, 2012 CarswellOnt 15330 (Master) at para 36:

Where a party creates prejudice by its failure to do something it reasonably could or ought to have done, the party cannot rely on the said prejudice.

[13] Assuming that the limitation period did not expire during the defendant’s retainer, the plaintiff’s ability to start an action was not and is not dependent on the defendant pleading discoverability.

[14] There was never an indication from the defendant that any defences or positions were being abandoned.

[15] The case of Stoicevski v. Casement, 1983 1679 (ON CA), [1983] O.J. No. 3186 (C.A.) can be distinguished. Stoicevski was decided 30 years ago. The applicable Rules, case law and legislation concerning amendments, limitation periods and discoverability have changed.

[16] Any prejudice that may result if the plaintiff’s current lawyer of record is removed from the record is not prejudice that cannot be compensated for by costs.

[17] Order to go as follows:

1. On an unopposed basis, leave is granted to amend the amended statement of defence with respect to paragraphs 24 and 25.
2. Leave is granted to amend the amended statement of defence with respect to the balance of the proposed amendments.

[18] If any party seeks costs and if costs cannot be agreed upon, the issue of costs of this motion may be addressed at the return of the refusals motion in this action scheduled before me for October 31, 2013.

Master McAfee

Date: August 12, 2013