Court File and Parties

COURT FILE NO.: 12- 54440 DATE: May 11, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANCINE CYR Plaintiff AND: CALYPSO PARC INC. Defendant

BEFORE: MASTER NATHALIE CHAMPAGNE

COUNSEL: Richard Auger, for the Plaintiff Mark Gallagher, for the Defendants

HEARD: April 5, 2016

Endorsement

Background

1The plaintiff brings this motion for an order to amend her Statement of Claim and for an order for the disclosure of the Technical Standards and Safety Authority (TSSA) investigation file on Calypso Waterpark. The defendant conceded that if the court made an order permitting the plaintiff’s statement of claim to be amended, an order for disclosure of the TSSA investigation file should also be made.

2The facts of this matter are not in dispute and they are as follows:

3The plaintiff is a resident of Gatineau Quebec.

4The defendant is a corporation incorporated under the laws of Ontario carrying on business as a theme water park in Limoges Ontario.

5The plaintiff alleges that she attended Calypso Waterpark on August 2, 2010 and that she was seriously injured on the Canyon Rafting water slide.

6On May 18, 2012, the plaintiff issued a Statement of Claim alleging negligence against the defendant in relation to the incident that allegedly took place on August 2, 2010.

7Examinations for discovery in this matter have been completed and the matter has been set down for trial for 3 to 4 weeks in September, 2017.

8Following the issuing of the Statement of Claim, unrelated to this action, the Technical Standards and Safety Authority investigated the defendant regarding the overall safety of its operation. The TSSA commenced a regulatory proceeding against the defendant alleging a number of safety violations with respect to a number of waterslides and rides, not including the Canyon Rafting slide.

9The TSSA regulatory proceedings resulted in findings of guilt against the defendant on 6 out of 11 charges.

10In addition, after the plaintiff’s claim was issued and following examinations for discovery, the defendant provided the plaintiff with disclosure of a number of incident reports which the plaintiff contends were similar to the incident that gave rise to the present litigation. The plaintiff wishes to add the fact of these reports to her pleadings to allow her to introduce at trial, evidence of similar fact and/or a pattern of behavior by the defendant.

11The plaintiff also wishes to amend her Statement of Claim to include the facts that pertain to the TSSA proceedings and also seeks an order for disclosure of the TSSA investigation file.

12The TSSA is not objecting to the release of its investigation file to the plaintiff.

13The defendant takes the position that the plaintiff should not be allowed to amend her Statement of Claim as examinations for discovery have been completed, a trial date is set and the amendments are neither relevant or probative to the claim. The defendant further states that the proposed amendments would significantly broaden the scope of the litigation and will cause the defendant prejudice.

The Issues

14Should the plaintiff be granted leave to amend her statement of claim as proposed, to include in the fact of the TSSA investigation, proceedings and decision?

15Should the plaintiff be permitted to amend her Statement of Claim to include a number of incident reports produced by the defendant that the plaintiff claims give rise to similar fact evidence?

16Would allowing the plaintiff to amend her claim result in prejudice to the defendant that could not be compensated for by costs?

Disposition

17Having read the materials before me including the motion records, factums and books of authorities submitted by both parties and having considered the oral submissions of counsel, I am prepared to grant the plaintiff leave to amend her Statement of Claim as proposed. I am further prepared to order the TSSA to deliver its investigation file to the parties.

Statutes and Jurisprudence

18Rule 26.01 of the Rules of Civil Procedure sets out 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. R.R.O. 1990, Reg. 194, r. 26.01.

Analysis

19Rule 26.01 of the Rules of Civil Procedure governs the amendment of pleadings and directs that a court shall grant leave to amend a pleading at any stage of an action unless prejudice would result that could not be compensated for by an order for costs or an adjournment.

20The Ontario Court of Appeal in Marks v. the City of Ottawa, 2011 ONCA 248, para 19, makes it clear that while there is no absolute right to amend pleadings and the court has discretion to deny leave for a party to amend his/her pleadings, the general rule is that amendments to pleadings are to be presumptively approved with exceptions. In Andersen Consulting v. Canada, O.J. No 3576, the Court of Appeal makes clear that those exceptions would be where prejudice to a party could not be compensated for by costs or an adjournment or in instances where the proposed amendments disclosed no cause of action or would be considered scandalous, frivolous, vexatious or an abuse of the court’s process. The court of Appeal in Marks adds that amendments should not be permitted if originally pleaded, they would have been struck or if the amendment is untenable at law.

21The defendant asserts that the proposed amendments are not relevant and that allowing them will significantly broaden the scope of the litigation and will cause it prejudice. It further states that the amendments are not tenable at law and would not survive the test under Rule 21. The defendant did not adduce any evidence to support its arguments in this regard.

22The plaintiff argues that she needs to amend her Statement of Claim to include additional relevant facts that support her claim, which were not known or available when she first issued her pleadings. In particular she seeks to add facts that would allow her to introduce similar fact evidence and evidence of a pattern of behavior by the defendant at her trial. She contends that if the proposed amendments are not permitted, she may not be permitted to introduce such evidence at trial. She relies on Garwood Financial Ltd. et al. v. Wallace et.al., [1997] O.J. No. 3358 for this proposition. Toward the end of that decision, Justice Epstein does indeed say that so long as the pleading of similar fact evidence is not “unduly oppressive or unfair” it should be permitted. He goes on to say that failure to plead such evidence could give rise to an objection to such evidence being lead at trial which would cause prejudice and would deprive the judge of potentially relevant information.

23Having reviewed the evidence which was only provided by the plaintiff, I am unable to conclude that the proposed amendments to the pleadings are frivolous, vexatious or an abuse of the court’s process, nor do the proposed amendments fail to disclose a reasonable cause of action. They in fact support the plaintiff’s claim for negligence and it will be up to the trial to determine the admissibility of those facts. While the proposed amendments may prejudice the defendant because further examinations for discovery may be required and the trial may be lengthened, permitting the amendments will not cause a delay to the trial which is scheduled to take place in 16 months. In addition, there is no evidence before this court to suggest that the prejudice could not be compensated for by an order for costs, and I believe it can be.

24In the circumstances, I am prepared to grant the plaintiff leave to amend her pleadings accordingly.

Costs

25If the parties are unable to agree on costs, they may each submit written submissions of no more than 3 pages each within the next 30 days.

Master Nathalie Champagne