SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-426677
MOTION HEARD: JANUARY 22, 2014
RE: Peter McLachlin v. Charles Telky and Nony Telky
BEFORE: MASTER R.A. MUIR
COUNSEL: W. Michael G. Osborne and Masiel A. Matus for the plaintiff
Ira Book for the defendants
REASONS FOR DECISION
[1] The plaintiff brings this motion pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting him leave to amend his statement of claim. The defendants oppose the relief requested.
[2] This is primarily a defamation action. The plaintiff alleges that the defendants made false and defamatory statements about him to the police that resulted in several criminal charges being laid against him. The statement of claim makes it clear that the allegedly defamatory statements include, among other things, allegations that the plaintiff made intimidating gestures to the defendants’ children, including gestures with his hand and finger pointed in the fashion of a firearm. These would appear to be among the allegations that gave rise to the criminal charges against the plaintiff.
[3] This action was commenced on May 17, 2011, while the criminal charges were still pending. On November 3, 2011, the criminal charges were withdrawn by the Crown. The plaintiff now seeks to amend his statement of claim to make a claim for malicious prosecution and to add a paragraph referencing the withdrawal of the criminal charges. A favourable disposition of the criminal charges is a necessary element of a malicious prosecution cause of action. See the decision of the Supreme Court of Canada in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at paragraph 54.
[4] Given that the criminal charges were withdrawn on November 3, 2011, it would appear that the plaintiff’s malicious prosecution cause of action expired on November 3, 2013. Formal notice of this motion was not provided to the defendants until December 18, 2013.
[5] Rule 26.01 provides as follows:
26.01 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.
[6] Rule 26.01 is mandatory unless a responding party can demonstrate non-compensable prejudice. However, the Court of Appeal has held that where an applicable limitation period has expired, a plaintiff cannot avoid the application of that limitation period by amending an existing claim to add a new party or to advance a new cause of action. The common law doctrine of special circumstances, which was previously used by the courts to extend limitation periods, no longer applies. See Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 at paragraphs 16 and 25-27. Therefore, to the extent that the proposed amendments constitute a new cause of action being advanced after the expiry of the relevant limitation period, they will not be permitted.
[7] The question of what constitutes a “new cause of action” in connection with a motion of this nature was summarized by Master Dash in Ascent Inc. v. Fox 40 International Inc., [2009] O.J. No. 2964 (S.C.J. – Master). At paragraph 3 of that decision, Master Dash states as follows:
A "cause of action" has been defined as a "factual situation the existence of which entitles one person to obtain from the court a remedy against another person." The key is whether substantially all of the material facts giving rise to the "new cause of action" have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action. A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based.
[Footnotes omitted]
[8] I have reviewed the pleadings and the proposed amendments with these principles in mind. I have come to the conclusion that the proposed amendments do not amount to a new cause of action. In my view, they are properly viewed as providing particulars of allegations already pleaded and additional facts upon which the plaintiffs’ original right of action is based. A generous reading of the original statement of claim reveals that all of the facts necessary to support a malicious prosecution claim were pleaded, other than the allegedly favourable disposition of the criminal charges. The plaintiff has pleaded that the criminal charges were initiated by the defendants, that the prosecution was undertaken without reasonable and probable cause and that the defendants were motivated by malice. The only fact missing is the favourable disposition, which of course did not take place until after the statement of claim had been issued. In my view, the plaintiff simply seeks to add the one missing fact that could not have been pleaded at the time the statement of claim was issued. The amendments do not amount to a new cause of action. In my view, they simply set out an alternative claim for relief arising out of the same general factual matrix previously pleaded. In this regard, I see no difference between the facts on this motion and the facts before Master Dash in Burrell v. Peel (Regional Municipality) Police Services Board, [2006] O.J. No. 5009 (S.C.J. – Master) where a similar order was made for similar reasons.
[9] Counsel for the defendants argued that if the court were to examine the evidence surrounding the withdrawal of the criminal charges by the Crown, it would be clear that the withdrawal was not a favourable disposition at law. In my view, that submission is not an argument for a pleadings motion such as this. The plaintiff takes the position that the November 3, 2011 withdrawal of the charges amounts to a favourable disposition of the charges. Whether that allegation is true or not is irrelevant for the purposes of this motion. That is an issue for the trier of fact or perhaps a motion for summary judgment. It is clear from the decision of the Supreme Court of Canada in Miazga, that a withdrawal can constitute a favourable disposition in certain circumstances. See Miazga at paragraph 54.
[10] For the reasons set out above, I have concluded that the plaintiff should be granted leave to amend his statement of claim as requested at paragraph (a) of his notice of motion and in accordance with the draft amended statement of claim at Tab 2 of his motion record.
[11] At the conclusion of the argument of this motion, the parties agreed that the successful party should receive a partial indemnity costs order. The plaintiff’s costs outline claims partial indemnity costs of $26,051.23. The defendants’ costs outline identifies partial indemnity costs of $5,107.60. In my view, the costs requested by the plaintiff are grossly excessive for a motion of this nature, especially in an action governed by the simplified procedure set out in Rule 76. Moreover, much of the complexity to this motion would have been avoided had the plaintiff simply served his notice of motion before the expiry of the limitation period on November 3, 2013. I note that this motion was booked several months before that date and the plaintiff’s general intention to make these amendments to his statement of claim was communicated to the defendants’ lawyer as far back as October 2012. For these reasons, it is my view that it is fair and reasonable that the plaintiff be awarded costs in the nominal amount of $1,000.00.
[12] I therefore order as follows:
(a) the plaintiff is hereby granted leave to amend his statement of claim as requested at paragraph (a) of his notice of motion and in accordance with the draft amended statement of claim at Tab 2 of his motion record; and,
(b) the defendants shall pay the plaintiff’s costs of this motion on a partial indemnity basis fixed in the amount of $1,000.00, inclusive of HST and disbursements, payable within 30 days.
Master R.A. Muir
DATE: January 23, 2014