ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-0010-12
DATE: 2014-02-24
B E T W E E N:
PATRICK ROBERT CHAPIN, individually and as Executor of the Estate of CATHY CHAPIN, deceased, and JESSIE ALEXANDRA CHAPIN
Nancy M. Erickson, for the Plaintiffs
Plaintiffs
- and -
GWEN BENNETT and RONALD BENNETT
Andrew Yolles, for the Defendants
Defendants
HEARD: February 13, 2014,
at Thunder Bay, Ontario
Mr. Justice J.F McCartney
Decision on Motion
Introduction
[1] This is a motion by the Plaintiffs to amend their statement of claim.
Facts
[2] A statement of the facts necessary for this motion is as follows:
Patrick and Cathy Chapin were married December 23, 1987. The Chapin’s had two children, Jessie born November 6, 1991 and Wesley born May 9, 1995.
On October 8, 2010 Cathy was a passenger in a motor vehicle being driven by her sister Gwen, and owned by Gwen’s husband Ronald, in Newmarket Ontario. Gwen apparently ran through a red light and collided with a truck proceeding through the intersection on a green light. As a result of Cathy’s injuries, Patrick got to her bedside just a few hours before her death the same day.
As a result of Cathy’s death Patrick and Jessie commenced a Family Law Act action for damages for negligence and Patrick made a claim on behalf of Cathy’s estate as well.
Patrick, who was already suffering from the death of his son Wesley, who had died on December 9, 2009, took the death of his wife very hard, and has been unable to return to work since that time.
December 11, 2011 Patrick was examined by Dr. Suzanne Allain, a Psychiatrist. The medical conclusion – set out in a report dated January 11, 2012, concluded that Patrick was suffering from Post Traumatic Stress Disorder (PTSD). A further examination by Dr. Laurie Rezneck on August 15, 2013 confirmed this diagnosis in her report dated October 7, 2013.
As a result of this diagnosis the plaintiffs have moved to amend their Statement of Claim to include a claim for damages for Patrick for PTSD and for past and future income loss, as well as for Jessie under the Family Law Act for damages resulting from the PTSD of her father Patrick.
The Law
The modern approach in these situations seems to be that where all material facts giving rise to the alleged “new” cause of action have been pleaded, then this is not to be considered a new cause of action. For example, this might include a new head of damage under the existing cause of action, a new remedy, or a new legal conclusion drawn from the same set of facts. Fitzpatrick Estate v. Medtronic Inc., 1996 8118 (ON SC), 137 DLR 4th 262, Randolph v. Graye, [1995] O.J. No. 777 (QL) (Ont. Ct. (Gen. Div.)), Dee Ferraro Limited et al v. Pellizzari 2012 ONCA 55, 346 DLR 4th 624, Phommachanh v. Toronto Transit 59 OR 3rd page 15.
The Position of the Plaintiffs
[3] The Plaintiffs position is that the amendment requested does not have the effect of adding a new cause of action i.e. damages as a result of PTSD caused by the negligence of the Defendants, but is rather a “particularization” of the original claim, which came to light after a later medical diagnosis. It arose as a result of Patrick, while he was not at the scene of the accident, certainly witnessed the aftermath in the hospital right to the moment of Cathy’s death.
[4] The Plaintiffs point out that the original Statement of Claim sets out:
a. The particulars of the accident (paragraph 6)
b. Patrick’s emotional and psychological difficulties after the accident (paragraphs 11 & 19)
c. The common law duty of the defendants and the specific allegations of negligence (paragraph 12)
d. The emotional and psychological issues experienced by Jessie after the accident because of her mother’s death (paragraph 20)
[5] All of these demonstrate, argue the plaintiffs, that the PTSD is an additional head of damage or remedy claimed in the existing cause of action.
The Position of the Defendants
[6] The Defendants argue alternatively as follows:
a. This amendment constitutes a new cause of action
b. Since it is a new cause of action and outside the limitation period it is statue barred and thus should be disallowed
c. If it is allowed to proceed on either basis, the amended paragraphs, in particular 6 (a),(b) and (c) are pleading evidence and should be disallowed
[7] Regarding (a), the Defendants state that the Plaintiffs have attempted to establish a new cause of action which should be disallowed.
It is a personal action while the original action is under the Family Law Act
Jessie’s claim under the Family Law Act would be expanded on the basis of the new personal action
There are no facts in the original claim supporting the claim for PTSD
Patrick does not have a valid claim for PTSD because he did not observe the accident or its aftermath.
[8] Regarding (b) above the Defendants merely argues that the new statute of limitations is very strict concerning giving leave to commence actions beyond the limitations period, and there is no reason to grant such leave here.
[9] Regarding (c) above the Defendants refers specifically to paragraph 6 a-c as offending the rule against pleading evidence.
Discussions
[10] I am satisfied, in reviewing all of the circumstances herein, that all the Plaintiffs have attempted to do here is to amend their claim to add an additional head of damage resulting from the accident. The fact of the accident, the deteriorating condition of Patrick, what that condition consisted of, were all known from the commencement of the action and were all connected with the condition eventually leading to PTSD, which in fact happened.
[11] Contrary to what the Defendants say, I disagree that the fact that the amended claim is a personal action as opposed to one under the Family Law Act is relevant to this argument.
[12] Furthermore I disagree that there are not enough facts to support a duty of care by the Defendants to the Plaintiffs. In that regard this is nothing more than a classic motor vehicle accident in which an injured passenger claims against a negligent driver, and very little has to be plead as far as duty of care (or foreseeability for that matter) is concerned in the original pleading.
[13] Finally the Defendant argues that the law of Ontario is such that unless a Plaintiff witnesses the negligent personally, they are not entitled to bring a claim for nervous shock (or as in this case PTSD). This may well be an issue for trial to be decided at that time, but under the circumstances of the death and its aftermath (being Patrick with Cathy at the hospital for the last four hours of her life) this should not be a bar to proceeding with this amendment.
[14] So in the result I have decided that the requested amendment is not a new cause of action. For that reason, it will not be necessary to deal with the argument regarding the limitation period.
[15] Regarding the Defendants objection to the Plaintiffs pleading evidence in the amended statement of claim, I agree as follows:
Paragraph 6 (a) and 6 (b) which describe how the sight of his dying wife caused Patrick’s PTSD are evidentiary in nature and should be disallowed.
Paragraph 6 (c) however, which basically describes the symptoms of Patrick’s PTSD should be allowed.
Conclusion
[16] In the result then for all of the above reasons, the motion is allowed subject to the paragraphs 6 (a) and (b) of the amended statement of claim being disallowed.
Costs
[17] The parties indicated to me that they agreed that each of them had costs of approximately $4,000. Since the Plaintiff was successful herein, but not totally successful, I would allow costs to the Plaintiff in the amount of $3,000.
“Original Signed By”
The Hon. Mr. Justice J.F. McCartney
Released: February 24, 2014
COURT FILE NO.: CV-0010-12
DATE: 2014-02-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICK ROBERT CHAPIN, individually and as Executor of the Estate if CATHY CHAPIN, deceased, and JESSIE ALEXANDRA CHAPIN
Plaintiffs
- and –
GWEN BENNETT and RONALD BENNETT
Defendants
DECISION ON MOTION
McCartney, J
Released: February 24, 2014
/nf