ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-09-137
Date: 2013/12/03
BETWEEN:
DAVID FREE
G. Sheppard, for the Plaintiff
Plaintiff
- and -
JIM MCPHERSON, WALLY REIF AND MUNICIPALITY OF MEAFORD
I.P. Newcombe, for the Defendants
Defendants
Heard: November 27, 2013
The Hon. Mr. Justice Arrell
ENDORSEMENT
[1] The defendant Meaford brings this motion for a number of items of relief.
[2] The cause of action arose in 2007 and the trial is set for 4 weeks in March, 2014. The matter has been judicially managed for quite some time. Discoveries have been completed and a pre-trial date will occur in early 2014. The matter has been on the trial list for some time. I last dealt with it in June, 2013.
[3] The Defendant is seeking the following:
An order compelling the plaintiff to comply with my order of June 28, 2013.
An order allowing it to amend its’ defence to plead the Libel and Slander Act.
An order compelling production of medical records.
An order compelling production of tax returns of Efficient Quality Systems.
An order compelling answers to undertakings and refusals.
[1] The plaintiff is opposed to several of the requests. He further takes the position that leave to even bring the motion should not be granted.
Leave:
[2] I have concluded that I will allow leave to the defendant to bring this motion.
[3] R.48.04 (1) indicates that leave of the court must be obtained if the parties have consented to the matter being placed on the trial list which in this case they have. Leave is not required to enforce answers to undertakings, refusal or continuing disclosure.
Blagrove v. Whittington (2010) ONSC 5748
[4] That of course is what a portion of this motion is about. The issue of amending the pleadings is dealt with in a separate rule.
[5] The rule is discretionary and depends on the requests being made. In this case the only issue that requires a separate leave order under R. 48 is the request for medical records of the plaintiff. I have concluded that there is no prejudice to the plaintiff, that can’t be compensated for in costs, in hearing the motion on the merits, especially given that the trial is over 3 months off.
My Order June 28, 2013:
[6] That order required the plaintiff to produce an employment history from 2007; Tax returns of 3 entities; documents in item #6 of the plaintiff affidavit of documents; a list of potential employers applied for including names and addresses.
[7] The evidence is very clear that the plaintiff has had only 2 jobs since Meaford. The first being with the co-defendant in this action, Magnetawan, of which the defendants have ample information. The only other job was with the Federal Government in 2008 of which the defendants were well aware through the discovery process.
[8] The plaintiff has sworn he has had no other employment. My order did not require the extensive information requested by the defendant. The order stated that the plaintiff was to provide an employment history which clearly meant a job description, a location, a time and a name of the employer. If the defendant did not seek this information on discoveries this court can only assume it felt it was not relevant. It need not be produced this late date and I consider this part of my order answered.
[9] I accept that on April 19, 2013 that the plaintiff’s lawyer provided 429 pages of the history of jobs applied for.
[10] The defence agrees that the plaintiff has also supplied a list of 28 potential jobs where he was actually interviewed. That is the extent of all interviews. The plaintiff, on this motion, has agreed, if available, to produce the name of the person he applied to or in the alternative the name or names of persons who interviewed him and the dates of those interviews.
[11] That information will be provided within 14 days of the date of release of this endorsement and upon doing so that part of my order of June 28, 2013 and any related undertakings will be deemed answered.
[12] The defendant seeks any attachments that went with the plaintiffs personal tax returns. The plaintiff has agreed to produce whatever attachments that are available and that will be completed within 14 days of the release of this endorsement and upon doing so this request will be deemed answered.
[13] The defendant also seeks the corporate tax returns of the plaintiff’s two corporate entities. The only evidence before me, and given under oath by the plaintiff, is that no such tax returns exist as no such tax returns were ever filed with Revenue Canada.
[14] The defendant further requests that the plaintiff provide confirmation from Revenue Canada that no such returns were ever filed. I consider this an unreasonable request. The plaintiff is under no obligation to corroborate his evidence for the benefit of the defendant. Revenue Canada can be subpoenaed or a court order obtained from the trial judge by the defendant if such records are felt by the trial judge to be relevant. This matter is therefore deemed answered.
Undertakings and Refusals:
[15] The parties have agreed regarding these issues as follows:
Undertaking #12 has been answered. The only publication the plaintiff is aware of is found in the list provided in the statement of claim.
The plaintiff will provide the date of his most recent resume which he has already provided.
The plaintiff has agreed to answer refusal #9. There is only one relevant email and that will be produced within 14 days of the release of this endorsement. Plaintiff’s counsel has also agreed to allow defendants’ counsel review the C.D. which has other emails to satisfy himself that no others are relevant.
In answer to refusal #12 plaintiff’s counsel will advise within 14 days what happened to the costs.
[16] Upon the plaintiff fulfilling the above agreements within 14 days re: the undertakings and refusals it will be deemed by this court that all undertakings have been answered and all refusals dealt with.
Medical Records:
[17] The defendant seeks the medical records of the plaintiff’s family doctor, cardiologist, OHIP, and any hospital records from 2007 to date.
[18] The defendant argues that the issue of whether the plaintiff can work is central to damages. It argues it has recent information from a tax case involving the plaintiff that he may have had a health issue with symptoms similar to a heart attack. If he had such health issues he may not have the ability to work in any event and therefore the defence argues fairness of trial dictate that it have access to these records.
[19] The plaintiff has sworn he did not have a heart attack while this tax case was ongoing. He further argues that he did indeed have a heart attack in 2010 and that the defendant was so advised at discoveries on July 11, 2012. At that time counsel for the defendant requested the plaintiff’s medical records, which was refused. In a motion before me for production of these records plaintiff’s counsel agreed to withdraw any claim for damages for mental anguish and defence counsel advised the court that it therefore no longer required any medical records concerning the plaintiff.
[20] There has been absolutely no change in the evidence of the plaintiff that would allow for the defendant to now change its position and request the plaintiff’s medical records. All of the facts were known at discoveries and at the motion before me regarding the plaintiff’s health. The defendant agreed it no longer required the medical records in exchange for the plaintiff withdrawing any claim for health related damages. At this late date, and with no evidence to indicate any change in circumstances, I conclude that the parties are bound by their earlier agreement and no medical records are produceable.
Amendments to Defence:
[21] The defendant has not amended its defence to the plaintiff’s most recent amendment of his statement of claim of 2012. It requests leave to amend the various numbering in its defence to correspond with the most recent claim. The plaintiff takes no issue with that request and it is so ordered.
[22] The defendant also requests leave to make a substantive amendment to its defence to plead a notice limitation period under the Libel and Slander Act. The plaintiff takes great exception to that request.
[23] The plaintiff’s claim is composed of 2 causes of action. The first is that he was defamed by comments made by certain of the individual defendants. The second is that there was a breach of the settlement agreement by the defendants as a result of various statements they made.
[24] The amendment proposed, if accepted by the court, may eliminate the plaintiff’s first cause of action but will have no effect on his second cause of action.
[25] The plaintiff argues that damages that may be awarded in a defamation action are substantially wider regarding loss of reputation than damages that may be awarded simply for a breach of contract under the second cause of action.
[26] In my view what damages may be awarded under either cause of action is somewhat speculative until the trial judge hears the evidence and makes findings of fact. Certainly there will be no duplication of damages between the two causes of action but whether additional damages may be awarded under one cause and not under the other is not for me to decide.
[27] R.25.07 (4) calls upon a defendant to specifically plead any matter on which it intends to rely to defeat the plaintiff’s claim if failing to plead it might take the plaintiff by surprise. The jurisprudence is clear that a party relying on a limitation period must plead it. The defendant did not.
D.S. Park Waldheim Inc. v. Epping (1995), 24 O.R. (ed) 83 (Gen. Div.)
Strong v. P. (M.M.), (2000) 2000 16831 (ON CA), 50 O.R. (3d) 70 (O.C.A.)
[28] R.26.01 makes it clear that a court must, at any stage in an action, 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.
[29] The plaintiff argues that it has been led to believe, from the date of the defendant’s defence of three years ago, that notice under the Libel and Slander Act was not an issue, as it was not pleaded. At this late date the plaintiff argues it would now be highly prejudicial to allow the amendment.
[30] The facts of this matter are fixed. The plaintiff did not give notice under the Libel and Slander Act prior to commencing his action. It is difficult for this court to conceptualize what the plaintiff could have done to correct that problem once the action was commenced. It is clear in the defence that various defences to defamation were advanced. It could come as no surprise to the plaintiff that that area of law, and all available defences, were very much in play.
[31] I disagree with plaintiff counsels submissions that if it had been known 3 years ago, when the defence was served, that notice would be an issue that he could have taken a different approach to internet republications. As of three years ago the claim would have been 5 years old and all limitation periods would have expired so it is difficult to visualize what the plaintiff could have done at that stage to correct the lack of notice.
[32] The defendant must also persuade me that the proposed amendment has some merit. I am so persuaded.
Watson v. Southam Inc. 2000 5758 (ON CA), [2000] O.J. No. 2555 (C.A.)
Janssen-Ortho Inc. v. Engen Canada Inc. 2005 19660 (ON CA), [2005] O.J. No. 2265 (O.C.A.)
[33] The defendant argues that the only prejudice to the plaintiff in granting the amendment is that the limitation period might be successful in defeating the plaintiff’s defamation claim. That, the defendant argues, is not sufficient prejudice.
[34] The Court of Appeal has made it very clear:
“With respect, we see no prejudice resulting from the amendment. The only prejudice is that which would be inevitable as a result of a successful plea. Such prejudice is not the type referred to in Rule 26. If it were, only unmeritorious amendments would be allowed- an obviously ludicrous proposition.”
Hanlon v. Sernesky 1996 1762 (ON CA), [1996] O.J. No. 4049 at para 2 (O.C.A.)
[35] The proposed amendment does not raise any new facts. It simply pleads a notice provision from facts already in existence.
Reliable Life Insurance Co. v. Ingle [2009] O.J. No. 3606
[36] In the case of Knight v. Toronto [2002] O.J. No. 4539 Master Haberman allowed the defendant to amend its defence to plead the 3 month limitation period some 4 years after the defence had been filed and just before trial. The court held that the onus was on the party adversely affected to demonstrate prejudice and that delay is not sufficient.
[37] I conclude that I must grant the amendment under the rule unless the plaintiff can show prejudice. He cannot, other than that the amendment might be successful and that is not prejudice which the rule contemplates.
[38] I make no decision on the plaintiff’s arguments that in fact the Libel and Slander Act has been waived or that the defendant is estopped from relying on the Act. Such arguments, the parties agree, should be left to the trial judge and I agree that evidence must be called on those issues.
[39] I further note that the plaintiff in his claim has requested various heads of damages including aggravated and punitive which if proven will allow damages of a more general nature.
[40] The amendment proposed by the defendant Meaford is granted and will be served on the plaintiff with 14 days of the release of this decision.
[41] Counsel for Meaford agreed it could not seek costs of the amendment. The plaintiff is seeking costs.
[42] I conclude that other than the amendment of the defence the plaintiff has been more successful than the defendant, although certainly some mixed success by both parties. As a result under all the circumstances the plaintiff is entitled to costs of this motion fixed in the amount of $3,500.00 payable within 30 days from the defendants in the Meaford action only.
ARRELL, J.
Released: December 3, 2013
COURT FILE NO.: CV-09-137
DATE: 2013/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID FREE
Plaintiff
- and -
JIM MCPHERSON, WALLY REIF AND MUNICIPALITY OF MEAFORD
Defendants
ENDORSEMENT
ARRELL, J.
Released: December 3, 2013