Shallow v. Adair, 2015 ONSC 165
MOTION HEARD: January 24 and August 27, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Roger Shallow
Plaintiff
v.
Geoffrey E.D. Adair and Adair Morse LLP
Defendants
BEFORE: Master Thomas Hawkins
COUNSEL: Jessica Prince for moving plaintiff
F (416) 365-1601
C. Kirk Boggs for responding defendants
F (416) 867-2426
REASONS FOR DECISION
Nature of Motion
1This is a motion by the plaintiff for leave to amend the statement of claim in terms of the draft amended statement of claim found at tab 1A to the plaintiff’s motion record dated December 30, 2013. The motion is opposed, mainly on the grounds that (the defendants submit) the proposed amendments raise one or more new causes of action which are statute barred.
2Motions to amend pleadings are governed by rule 26.01 This rule 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.
3Rule 26.01 contains a reverse onus favouring the granting of leave to amend a pleading. Leave to amend shall be granted unless the responding party would suffer prejudice “that could not be compensated for by costs or an adjournment.”
4There is a dispute between the parties as to whether the proposed amendments to the statement of claim raise any new causes of action which are barred by the expiry of a relevant statutory limitation period. The defendants submit that the proposed amendments do raise one or more statute-barred causes of action. The plaintiff argues that they do not do so. Rather, the proposed amendments simply provide particulars of causes of action already pleaded.
5In Ascent Incorporated v. Fox 40 International Inc. et al 2009 O.J. No. 2964 Master Dash defined the phrase “cause of action” as follows (at paragraph 3).
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.”
6In order to resolve this dispute I must review the alleged facts giving rise to this action and compare the proposed amendments in the draft amended statement of claim with the original statement of claim in this action.
7In paragraphs 4 to 17 of the original statement of claim the plaintiff alleged that on October 6, 2007 he was arrested, handcuffed, taken to a police station, pat-down searched and then strip searched, held for several hours in a cell and then released. He was charged with causing a disturbance in or near a public place by shouting and with assaulting a police officer with intent to resist his lawful arrest. Over a year later on January 7, 2009 these charges were withdrawn because there was no reasonable prospect of a conviction.
8In paragraphs 17 and 18 of the original statement of claim the plaintiff alleged that the next day the Toronto Police Association (the “TPA”) issued a press release entitled “TPA Alleges Misconduct in Dropping Charges against Crown Attorney.” This press release was widely published by various means in Ontario.
9In paragraphs 19 to 39 of the original statement of claim in this action the plaintiff alleges certain material facts respecting the claims against the defendants in this action.
10In paragraphs 19 to 24 of the original statement of claim the plaintiff alleges how he came to retain the defendants in early February of 2009. In paragraph 21 he alleges that he sought advice from the defendant Geoffrey Adair about what civil remedies were available to him with respect to the events of October 6, 2007 that transpired between him and the police and with respect to the allegedly libelous and defamatory comments published by the TPA.
11In paragraph 22 of the original statement of claim in this action the plaintiff alleges that Mr. Adair advised him that he had grounds for actions for malicious prosecution, unlawful arrest, unlawful detention, assault and battery, declaratory remedies and remedies for violation of the plaintiff’s Charter rights. Finally the plaintiff alleges that Mr. Adair told him that he (Mr. Adair) would immediately issue a notice of action to preserve the plaintiff’s defamation claim.
12In paragraph 24 of the original statement of claim in this action the plaintiff alleges that on the day after his meeting with Mr. Adair he retained the defendants with respect to all of his matters.
13In paragraph 25 of the original statement of claim in this action the plaintiff alleges that he e-mailed Mr. Adair to confirm that the notice of action respecting his defamation claim against the TPA was served and filed. In paragraph 26 the plaintiff alleges that Mr. Adair responded the same day confirming that the notice of action had been filed. Mr. Adair added “Back to you soon”. The plaintiff alleges that he understood this to mean that Mr. Adair would be following up respecting the issuing of various statements of claim.
14In paragraphs 29 to 32 of the original statement of claim the plaintiff alleges that he emailed Mr. Adair on April 7, 2009 asking to “touch base” and that Mr. Adair replied by email the next day stating “Matter dealt with. Will call you next week.” The plaintiff alleges that he took this response to mean that the statement of claim in the defamation action against the TPA had been served and filed.
15In paragraphs 28 to 39 of the original statement of claim the plaintiff alleges that throughout the spring, summer and fall of 2009, he attempted to contact Mr. Adair to learn the status of the plaintiff’s claims. He alleges that his attempts to contact Mr. Adair were largely unsuccessful. In paragraph 38 the plaintiff alleges that he found out around October 26, 2009 that no statement of claim had been issued on his behalf.
16I have reviewed the draft amended statement of claim and the materials filed by both sides, especially the two factums. Having done so, I agree with the plaintiff’s counsel that the proposed amendments do not raise any new cause of action.
17There is only one cause of action in the original statement of claim: solicitors’ negligence. The draft amended statement of claim does not change that. The action is still one for solicitors’ negligence and only solicitors’ negligence.
18In his factum defence counsel clearly regards this action as in part one for defamation. It is not a defamation action at all. The proposed amended statement of claim does not allege that the defendants or one of them defamed the plaintiff. Boiled down to their essentials, both the original statement of claim and the proposed amended statement of claim allege that the defendants were negligent because they failed to commence actions which the plaintiff instructed them to commence to enforce the plaintiff’s rights to damages arising both from the events of October 6, 2007 and the publication of defamatory statements about the plaintiff. This complaint is made in paragraphs 29 to 32, 38 to 40 and 48 to 50 of the original statement of claim. The same complaint is made in the proposed amended statement of claim.
19It is true that the proposed amended statement of claim alleges that the defendants’ negligence caused the plaintiff to suffer more serious losses than originally alleged. However, the cause of action remains the same: solicitors’ negligence based on failure to carry out the plaintiff’s instructions.
20By way of illustration, in an action in which the plaintiff alleges that as a result of the defendant’s negligent driving, the plaintiff suffered a broken right leg, a motion to amend the statement of claim to allege that the defendant’s negligent driving on the same occasion also caused the plaintiff to suffer a broken left leg does not raise a new cause of action. The cause of action remains the same: negligent driving that caused bodily injury.
21Since the proposed amended statement of claim does not raise any new cause of action, no limitation of action issue arises. Granting leave to amend as asked will not deprive the defendants of a defence that the amended statement of claim raises statute-barred causes of action. The proposed amended statement of claim does not do so.
22For all these reasons this motion is granted. Time for service of the proposed amended statement of claim is extended to 30 days from the date of entry of the formal order disposing of this motion.
23Counsel are agreed that the party or parties that are successful should have the costs of this motion fixed at $6,000. An order will therefore issue directing that the defendants pay the plaintiff the costs of this motion fixed at $6,000 payable within 30 days.
(original signed)_
Date: January 8, 2015 Master Thomas Hawkins