SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-53224
DATE: 2015/09/03
RE: LISE MAYRAND, Executrix of the Estate of George Williams, Deceased Plaintiff
AND
CARLETON CONDOMINIUM CORPORATION NO. 66, Defendant
BEFORE: Maranger J.
COUNSEL: Rodrigue Escayola, counsel for the Plaintiff
R. Bruce Nelson, counsel for the Defendant
HEARD: July 2, 2015 (at Ottawa)
ENDORSEMENT
Lise Mayrand in her capacity as executrix of the Estate of George Williams sued The Carleton Condominium Corporation No. 66 for water damage caused to the estate’s condominium unit. The claim alleges that the water infiltration was as a result of defects in the construction of the buildings common elements.
The issue first arose on December 26, 2009 when a significant amount of water infiltrated the condominium unit.
A notice of action was issued on December 22, 2012. The original statement of claim was issued and filed on January 20, 2012. The statement of defence was filed on July 25, 2012.
The statement of claim referenced the water infiltration damage that occurred on December 26, 2009. It did not specify ongoing water infiltration problems, nor did it reference any type of claim under the Condominium Act 1998 S.O. c. 19.
Since the December 26, 2009 event, the water infiltration problems have not stopped. The evidence presented including expert reports obtained by insurers confirm that the water damage was not from a single event or from a single cause but from a series of problems over the course of several years.
The plaintiff is seeking to substantially amend the statement of claim to include the ongoing problems and not just the single event of December 26, 2009.
The amendments further seek to include specific claims under the Condominium Act for breach of fiduciary duty and for an oppression remedy.
The defendant Condominium Corporation resists the amendments upon the following grounds:
a) The proposed amendments would give rise to claims that are statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24.
b) The proposed amended statement of claim does not contain sufficient particulars.
c) Granting the proposed amendments would work an injustice and amount to an abuse of process in the circumstances of this case. Including that the relief being requested by virtue of the Condominium Act should proceed in accordance with the provisions of that legislation and not as part of this action.
- The governing principle for the amendment of pleadings is found at Rule 26.01 of the Rules of Civil Procedure which provides that:
On a 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.
- After considering: the affidavits, the pleadings, excerpts from the transcripts of the examinations for discovery, the factums, books of authorities and oral argument presented by each side; I would grant leave to amend the statement of claim on terms, and for the following reasons:
a) Any prejudice to the defendant flowing from the amendments can be remedied by an adjournment or costs.
b) The essence of this lawsuit concerns an ongoing water damage problem to a condominium unit allegedly caused by the negligence or failure of a condominium corporation to properly maintain the common elements. While the amendments come late in the day the crux of what is being requested based on all the evidence should come as no surprise to the defendant. The transcript of the examination for discovery of July 12, 2013 is replete with examples where the plaintiff discloses that there are ongoing problems with leakage and water infiltration into the unit and that the nature of the claim included the ongoing problems.
c) If there are issues or new causes of action that give rise to an intervening limitation period these can be pleaded in the defendant’s statement of defence. In any event on the face of the amended claim some of the specified ongoing problems pleaded are within the last two years: i.e. paragraph 6.9.
d) Nothing precludes the defendant from suing 3rd parties for contribution based on negligent construction work.
e) To deny the amendment could have the result of multiple lawsuits involving the same parties arising from the same issues for the same type of damages. The amendments for all intents and purposes have the effect of rationalizing the issues that divide the two parties.
With the above being said, the late timing of the request to amend in my estimation should preclude the plaintiff from a cost award for this motion regardless of the result. Furthermore the defendants will be allowed the opportunity to file a fresh statement of defence within 20 days of the release of this endorsement, they will also be free to re-examine the plaintiff on the amended claim if they choose to and will be allowed an adjournment if needed for that purpose.
With respect to costs I am strongly inclined to order no costs but will accept 1 page of written argument by each side if counsel feel they can persuade me otherwise.
Maranger J.
Released: September 9, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: LISE MAYRAND, Executrix of the Estate of George Williams, Deceased
Plaintiff
AND
CARLETON CONDOMINIUM CORPORATION NO. 66
Defendant
BEFORE: Maranger J.
COUNSEL: Rodrigue Escayola, counsel for the Plaintiff
R. Bruce Nelson, counsel for the Defendant
ENDORSEMENT
Maranger J.
Released: September 9, 2015