SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-11-436583

DATE: 20150820

RE: ROGER SHALLOW

Plaintiff/(Respondent)

AND:

GEOFFREY E.D. ADAIR and ADAIR MORSE LLP

Defendants/(Appellants)

BEFORE: Lederer J.

COUNSEL: Jessica Prince, for the Plaintiff/(Respondent)

C. Kirk Boggs, for the Defendants/(Appellants)

HEARD: July 29, 2015

ENDORSEMENT

[1] This is an appeal from an order made by Master Hawkins. He permitted the plaintiff, Roger Shallow, to amend his Statement of Claim. The defendants opposed the motion and bring this appeal on the basis that the amendments assert new claims which were discoverable when the action was commenced and that these claims are barred by the expiry of the two-year limitation period set by the Limitations Act, 2002, S.O. 2002, Ch. 24 Sch. B, s. 4.[1] The plaintiff concedes that if the amendments raise new causes of action, such actions would be out of time and the appeal should be granted. On behalf of the plaintiff, it is submitted that no new cause of action was raised and the Master was correct when he allowed the amendments to be made.

[2] Accordingly, the motion and the appeal are to be dealt with through a determination of whether the amendments bring forward any new cause of action.

[3] I find they do not and that the appeal should be dismissed.

[4] On October 6, 2007, the plaintiff was involved in what, for the purposes of this appeal, I refer to as a confrontation with members of the Toronto Police Service (police officers). He was arrested. He was charged with two Criminal Code offences: causing a disturbance; and obstructing police. Fifteen months later, on January 7, 2009, the charges against the plaintiff were withdrawn. The plaintiff was, at the time of his arrest, an Assistant Crown Attorney. At the time the Statement of Claim was prepared, he remained an employee of the Ministry of the Attorney-General.

[5] The day following the withdrawal of the charges, January 8, 2009, the Toronto Police Association, which represents both uniformed and civilian members of the Toronto Police Service, is alleged to have prepared and widely-published by various means a news release that, in turn, alleged misconduct in the withdrawal of the charges. Another day later, on January 9, 2009, it is alleged that each of three newspapers distributed in the City of Toronto (the Globe and Mail, the Toronto Star and the Toronto Sun) published stories that reflected concerns with the withdrawal of the charges that had apparently been expressed by, among others, the president of the Toronto Police Association in its news release the previous day.

[6] The plaintiff says that, on February 3, 2009, he contacted the defendants by e-mail. Within a few days, they met. The plaintiff takes the position that he sought and received legal advice relating to what remedies were available to him arising from the incident involving the police, as well as what he takes to have been libellous and defamatory comments published by the Toronto Police Association and re-published by the three newspapers. The plaintiff asserts that the defendant, Geoffrey E. D. Adair, advised that he had grounds for actions for malicious prosecution, unlawful arrest, unlawful detention, assault and battery, as well as remedies under the Charter of Rights and Freedoms. As the plaintiff recalls it, Geoffrey E. D. Adair also said that he would issue and serve a Libel Notice.

[7] It is the position of the plaintiff that the day after they met, he retained Geoffrey E. D. Adair. The plaintiff says he subsequently instructed Geoffrey E. D. Adair to commence proceedings with respect to the events of October 6, 2007 and that these instructions were not followed. The plaintiff says, despite his instructions to do so, no Statements of Claim were issued in respect of the defamatory comments that were published by the Toronto Police Association.

[8] The applicable limitation periods expired.

[9] As a result, this action was commenced by the plaintiff, Roger Shallow, against the defendants, Geoffrey E.D. Adair and Adair Morse LLP. The Statement of Claim was issued on November 1, 2011. It made claims against the defendants for negligence. In its original form, the Statement of Claim reviewed what the plaintiff said occurred on October 6, 2007, the publication by the Toronto Police Association of what the plaintiff took to be defamatory comments, the introduction of the plaintiff to and retainer of Geoffrey E. D. Adair, the instructions the plaintiff alleges he gave to Geoffrey E. D. Adair and that those instructions were not acted on. The Statement of Claim reviewed the duties the plaintiff says were breached.

[10] It makes no specific reference to the republication by the three newspapers.

[11] Master Hawkins heard the motion to amend the Statement of Claim on January 24, 2014 and August 27, 2014. His order was signed on January 8, 2015. The amendments he allowed included a significant increase in the value of the damages being claimed ($150,000 to $2,750,000) and some clarification of the actions taken by Geoffrey E. D. Adair. These changes are not controversial and do not reflect on the proposition that the amendments made are demonstrative of new causes of action which are out of time. This concern arises from amendments that touch on the allegation that the Toronto Police Association defamed and libelled the plaintiff in the statements and documents it published as a news release on January 8, 2009 and on the re-publication of those statements by the three newspapers.

[12] With respect to the former, the defendants acknowledge that the Statement of Claim refers to consultations between the plaintiff and the defendant, Geoffrey E.D. Adair, with respect to a potential defamation action against the Toronto Police Association. However, they go on to suggest that the Statement of Claim, in its original form, failed to identify the alleged defamation as one of the causes of action that was the subject of the claim. The amendments include some that make clear that, so far as the plaintiff is concerned, Geoffrey E.D. Adair was instructed to act in respect of the alleged defamation by the Toronto Police Association and his failure to issue a Statement of Claim in response was a breach of the duty he owed to the plaintiff. The defendants submit this represents the introduction of a new action that is out of time.

[13] With respect to the latter, the defendants point out that the Statement of Claim, in its original form, makes no reference to the re-publication by the three newspapers. The amendments permitted by the order of the Master included such references and the defendants submit introduced a new cause of action.

[14] Motions to amend pleadings are governed by rule 26.01, which 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.

[15] The Master observed that the rule 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 by costs or an adjournment’ ”.[2] In this case, if the defendants are correct, the prejudice would be the going forward of new causes of action outside the applicable limitation periods. The available case law demonstrates that there is more than that to the general directive that amendments should, in the absence of prejudice, be allowed:

It is also important to bear in mind that the court does not exact a standard of perfection when dealing with pleadings motions. Simply because a party has not pleaded artfully is not a ground to refuse an amendment. As in the case with respect to motions to strike, the court takes a generous view when assessing a proposed pleading. The emphasis is on preventing only those claims that clearly could not succeed from going forward (see Lido Industrial Products Ltd. v. Exbar Properties Inc. (1988), 28 O.A.C. 385.[3]

[16] In the context of an assertion that a proposed amendment is based on a new cause of action, this more generous approach is demonstrated by the acceptance that what is required is the pleading of the material facts that give rise to the cause of action:

… when substantially all of the material facts giving rise to the ‘new cause of action’ have been pleaded [in the initial statement of claim] then there is in fact no new cause of action being added.[4]

[17] In this case, the cause of action is negligence. This negligence, if it occurred, arises from the alleged failure of Geoffrey E. D. Adair to act on the instructions he was given and, thus, to breach the duty of care he owed to the plaintiff. These instructions included commencing proceedings with respect to the actions of the police on October 6, 2007 and for defamation following a news release of the Toronto Police Association on January 8, 2009. All of this is referred to in the original Statement of Claim.

[18] As the Master also noted in 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 stripped-searched, held for several hours in a cell and then released. He was charged. These paragraphs indicate that, on January 7, 2009, the charges were withdrawn.[5]

[19] The Master went on to observe that paragraphs 17 and 18 of the original Statement of Claim stated that the Toronto Police Association, on January 8, 2007, issued and widely-published a news release alleging misconduct in the withdrawal of the charges.[6]

[20] At paragraph 21, the Statement of Claim alleges that when the plaintiff and Geoffrey E. D. Adair met in early February 2009, the plaintiff sought advice as to the civil remedies available to him with respect to what had taken place between him and the police on October 6, 2007 and the defamatory comments published by the Toronto Police Association. The understanding that a defamation action was to be part of the proceedings to be commenced appears in at least four further paragraphs of the Statement of Claim.[7] Further, the Statement of Claim indicates the expectation that all the matters of the plaintiff were to be dealt with by the defendants.[8] This would include any action for defamation.

[21] If this is not enough, the Statement of Claim, as originally drafted, says that all claims “available…as a result of”[9], “stemming from”[10], “with respect to”[11] and “arising from”[12] the incident of October 6, 2007 were to be pursued by the defendants on behalf of the plaintiff. Remembering the predisposition in favour of granting amendments, as revealed by r. 26.01 and the case law, to my mind, the possible claims for defamation fall within the appropriate parameters. They originate with, “are available as a result of”, “stem from”, “arise from” or “with respect to” the incident that occurred between the police and the plaintiff on October 6, 2007.

[22] The Statement of Claim may be neither “perfect” nor “artful (see para: [15], above), but I have no difficulty in finding that the material facts necessary to demonstrate the basis for a claim for negligence for the failure to commence an action for whatever wrongs are said to have arisen from the actions of the police on October 6, 2007 or publication of the news release on January 8, 2009 were present and pleaded.

[23] This leaves the question of the amendments which refer to the re-publication of the material that is said to be defamatory. Again, there is no specific reference to the re-publication in the original Statement of Claim. The defendants say that each publication represents a new cause of action. In the context of any initial action for defamation, this may be so but, here, the cause of action is not defamation, it is negligence allegedly demonstrated by the failure to commence the possible proceedings in the name of the plaintiff.

[24] This is not a circumstance where there are two independent acts of solicitor’s negligence each representing a separate cause of action: one brought within the applicable limitation period; the other outside it. It is alleged that the solicitor failed to act on instructions to commence proceedings or actions in respect of matters that stemmed from the incident between the police and the plaintiff on October 6, 2007. This included claims for defamation that followed the withdrawal of the charges. The action alleging negligence was commenced in time. The fact that the negligent failure to commence a proceeding or action extended to the re-publication is not a new cause of action; it is further evidence of the negligence which is the source of the claim.

[25] The Master was correct when he observed:

In 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.[13]

[26] For the reasons reviewed, the appeal is dismissed.

[27] If the parties are unable to agree as to costs, I will consider written submissions on the following terms:

1. On behalf of the plaintiff, no later than fifteen days after the release of these reasons. Such submissions are to be no longer than three pages, double-spaced, independent of any Bill of Costs or Cost Outline and case law that may be provided or relied on;

2. On behalf of the defendants, no later than ten days thereafter. Such submissions are to be no longer than three pages, double-spaced, independent of any Bill of Costs or Cost Outline and case law that may be provided or relied on; and,

3. If reply is necessary, on behalf of the plaintiff, no later than seven days thereafter. Such reply is to be no longer than one page, double-spaced.

LEDERER J.

Date: 20150820

[1] S. 4 says:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[2] Shallow v. Adair 2015 ONSC 165, at para. 3.

[3] Philippine/Filipino Centre Toronto v. Datol et al. 2009 2909 (ONSC), [2009] O.J. No. 388, at para. 41.

[4] Fitzpatrick Estate v. Medtronic Inc., 1996 8118 (ON SC), [1996] O.J. No. 2439, at para. 22, quoted in Philippine/Filipino Centre Toronto v. Datol et al., supra, at para. 39.

[5] Shallow v. Adair, supra, (fn 2), at para. 7.

[6] Shallow v. Adair, supra, (fn 2), at para. 8.

[7] Para. 22: “Mr. Adair additionally stated that he would issue a Notice of Action immediately with respect to the defamation to preserve that claim”.

Para. 25: “On or about February 19th, 2009, the Plaintiff e-mailed Mr. Adair to confirm that the Notice of Action with respect to the defamation claim as against the TPA was served and filed…”

Para. 31: “The Plaintiff understood Mr. Adair’s response to mean that the Statement of Claim with respect to the defamation action against the TPA had been served and filed. …”

Para. 32: “As set out below, the Plaintiff later learned that Mr. Adair did not, in fact, file the Statement of Claim with respect to the defamation action.”

[8] Para. 24: “…the Plaintiff… orally confirmed that he was retaining Mr. Adair and Adair, Morse LLP with respect to all of his matters”.

Para. 26: “…which the plaintiff understood to mean that Mr. Adair would be following up with respect to the issuance of various Statements of Claim.”

Para. 36: “At the conclusion of the meeting, the Plaintiff instructed Mr. Adair to proceed to issue the appropriate Statements of Claim with respect to all possible claims.

[9]Para. 40.

[10]Para.41.

[11]Para. 42.

[12]Para. 43.

[13] Shallow v. Adair, supra, (fn. 2), at para. 18.