COURT FILE NO.: 12-54183 DATE: July 6th, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KALOB CADIEUX by his litigation guardian LUCIE COURTEMANCHE, et. al., Plaintiffs AND: PATRICK CADIEUX, et. al., Defendants

BEFORE: MASTER MACLEOD

COUNSEL: Ian Furlong, for the Plaintiffs, moving parties Stephanie Doucet, for the Defendant, City of Ottawa, responding party

HEARD: June 1st, 2016

ENDORSEMENT

[1] This is a motion to amend the statement of claim. Most of the proposed amendments are unopposed but one of the defendants, City of Ottawa, takes issue with the amendments as they relate to the claim against the municipality.

[2] There is no doubt that the impugned paragraph is problematic, offends the pleading rules and coming this late in the litigation contains inappropriate “boiler plate”. The question is whether it is such bad pleading that the amendment should be refused?

[3] For the reasons that follow, I am directing the moving party to repair deficiencies in the proposed pleading before the court will approve the amendment.

[4] Before turning to that point, it is useful to outline the background to the litigation and deal with the relief that is not opposed.

Background

[5] On April 25th, 2010 there was a very serious motor vehicle accident at the intersection of Merivale and Fallowfield Roads in the City of Ottawa. This is an intersection at the southerly edge of the greenbelt. Fallowfield Road runs more or less east and west and Merivale Road runs more or less north and south. Just west of the intersection there is a long reverse curve on Fallowfield Road.

[6] The vehicle operated by the defendant Cadieux was travelling east on Fallowfield. Apparently Mr. Cadieux went through a red light and collided with a tractor trailer driven by defendant Scott Ray (currently described as Ray Scott in the title of the proceedings). The two infant plaintiffs were passengers in the Cadieux vehicle and they sustained what are now believed to be permanent debilitating injuries including significant brain damage to at least one of them.

[7] The action was commenced on April 25th, 2012 by way of a statement of claim issued by the plaintiffs’ previous lawyers. Besides the drivers and owners of the two vehicles and various insurance companies, the defendants include City of Ottawa. In the original pleading the claim against Ottawa is not particularized. It simply alleges that the city was negligent and that it failed to meet its statutory duties in ways that will be disclosed prior to trial.

[8] On June 27th, 2012 counsel for the City sent a letter to the plaintiffs’ lawyers requesting particulars. Particulars were not forthcoming but on January 9th, 2013 the plaintiffs changed lawyers and retained Thomson, Rogers. Subsequently the parties took various steps including discovery of Mr. Cadieux but since at least 2014 counsel for the plaintiffs has been advising the defendants that they would be amending the pleading. That is now the subject of this motion.

The unopposed amendments

[9] The plaintiffs propose to amend the pleading in a number of ways that are not opposed by any of the defendants. The plaintiffs wish to amend the pleading to reflect the fact that the plaintiff and litigation guardian, Lucie Courtemanche has changed her name to Lucie Saint-Phard. As well the plaintiffs seek to correct a typographical error in the name of one of the children and to correct the name of the defendant Scott Ray. The correction of the names of the parties in the title of the proceeding and in the body of the statement of claim is necessary and appropriate and is unopposed.

[10] The plaintiffs also seek to raise the amount set out in the prayer for relief to $17 million dollars from the current amount of $500,000.00. This is to reflect what counsel now expects to be significant future care costs, future medical and rehabilitation costs and future economic loss. Though damages of this magnitude threaten to exceed the limits of all available insurance and to expose the municipal defendant to disproportionate contribution by operation of the Negligence Act, this amendment would readily be granted and it is not opposed.

[11] The plaintiffs are also correcting certain factual errors in the statement of claim. For example the statement of claim has the direction of the two vehicles mixed up. It is now clear that the Ray vehicle was travelling north and the Cadieux vehicle was travelling east. This too is unopposed.

[12] Finally, the plaintiffs wish to amend the pleading to add particulars of their allegations of negligence. None of the other defendants oppose the amendments. The city is opposed only to the proposed amendments to paragraph 20 which is the paragraph alleging negligence against it. That was the point that was argued.

The Issue – proposed paragraph 20

[13] Under the pleading rules in Ontario, a party requires leave of the court to amend pleadings but leave is presumptively to be granted. Pursuant to Rule 26.01, at any stage in the proceeding amendments are to be permitted unless the amendment creates prejudice that cannot be remedied by costs or an adjournment. With limited exceptions, amendment of a statement of claim is not an exercise in weighing evidence or prejudging the merits of the action. It does however involve examining whether as a matter of law, the amendment raises a tenable claim and whether or not it has been properly pleaded in the sense of complying with the applicable rules. [1] There is little point in permitting an amendment that could be promptly struck out under Rule 25.11.

[14] The proposed pleading seeks to add 42 subparagraphs of allegations against Ottawa. Many of these are repetitive or contradictory or are so specific that they appear to be pleading of evidence. While content that the claim be finally particularized, counsel for Ottawa argues that it should not have to face such a prolix and scattered pleading.

[15] Reading the proposed pleading, it is clear that the plaintiffs wish to allege faults in road design, construction, signage, safety and monitoring. Specifically, the plaintiffs wish to assert that the intersection is not properly designed because it was constructed with a sharp reverse curve abutting the intersection. They allege that this makes the intersection inherently dangerous as motorists must negotiate the turn and watch for the lights. The plaintiffs also allege that the city failed to conduct a safety audit or to implement preventative measures when it knew or ought to have known that the intersection experienced a high volume of collisions. The plaintiffs wish to allege that the city failed to post appropriate warning signs or that it posted signs that were misleading. They also allege that the posted speed limit was too high for the design of the road. There are allegations about lack of inspection, lack of repair, use of inferior materials and negligent selection and supervision of employees as well as breaches of the Ontario Traffic Manual and Geographic Design Standards for Ontario Highways.

[16] The problem is not the substance of these allegations which the city concedes the plaintiffs are entitled to include in a pleading. The problem is the form of the pleading which offends the requirements of Rule 25. Many of the 42 proposed sub-paragraphs are repetitive or contradictory and while some are so specific that they are challenged as pleading of evidence (for example that there were 53 previous accidents at this intersection) others are simply bald allegations lacking in particularity (such as the allegation of breach of the design manual or the allegation that the city hired incompetent employees). The city challenges the pleading as little more than a “boiler plate” shopping list which will lead to extensive production and discovery obligations and constitutes an improper fishing expedition.

[17] Ottawa does not seek to prove prejudice other than the prejudice of having to respond to an improper pleading. The sole opposition to the amendment is on the basis that it offends the pleading rules and would lead to unwieldy and unnecessary disputes over documentary production and the scope of discovery. It is important to recognize that pleadings are simply unproven allegations and agreeing that a party has the right to add allegations is not to be confused with agreeing that the allegations have merit. The pleading is important however because it defines what the litigation is about.

[18] The court discourages concerns of form over substance but pleadings are the foundations which shape the litigation. The question is whether the defects in the proposed pleading are significant enough that the amendment should be denied. Is the proposed paragraph so deficient that it would be struck out?

Analysis

a) Principles of Pleading

[19] It is useful for purposes of this motion to consider what a pleading is supposed to accomplish and how pleadings motions should be viewed in the current state of the rules. Pleadings are intended to define the question in controversy with clarity and precision, to give fair notice of the precise case to be met and the precise remedies sought, and to assist the court in its investigation of the truth. [2] Pleadings define the issues for the action, give notice to the other side so that the adverse party may marshal its evidence, alert the court to the issues of fact and law that must be determined, determine the scope of production and discovery, seek to persuade and finally provide a record of what was before the court in the litigation. [3]

[20] Under our system of fact based pleading, a statement of claim is to set out the material facts on which a party intends to rely but not the evidence by which it intends to prove those facts. Conclusions of law may be pleaded but only if the facts necessary to support those conclusions are contained in the pleading. [4] The idea is to provide the opposing party with a summary of the factual allegations it will have to meet and which the other party intends to prove. Parties are to be allowed a great deal of latitude in how they plead but there are limits.

[21] Pursuant to Rule 25.11 a pleading may be struck out in whole or in part if it is found to be “scandalous, frivolous or vexatious”, an “abuse of the process of the court” or if the pleading “may prejudice or delay the fair trial of the action”. This includes pleadings that are in significant breach of the pleading rules and will also include pleadings that disclose no cause of action although there are other rules which also deal with the latter situation. Pleadings are important because they define the scope of what is relevant for production and discovery and because they define the question to be tried if the matter proceeds to trial.

[22] A defendant faced with an apparently defective pleading is in a difficult position. If the defendant moves against the pleading it may well alert the plaintiff to a potentially fatal defect and allow it to be cured. [5] Even a demand for particulars may have the result of repairing a defective pleading and the consequence of such a motion may be that the defendant is forced to respond to a stronger case. [6]

[23] On the other hand a defendant faced with a vague pleading runs a risk in not attacking it or seeking clarification through particulars. In Whiten v. Pilot Insurance [7], for example, Binnie J. writing for the majority in the Supreme Court of Canada held that (notwithstanding his view that a claim for punitive damages should be pleaded with particularity) the failure of Pilot to demand particulars meant that it could not complain about the lack of specificity at trial. In the view of Justice Binnie, Pilot had done nothing to challenge the pleading and had been content to go to trial. Though the court stated that the statement of claim was “somewhat deficient” it held that “Pilot was content to go to trial on this pleading and … should not be heard to complain about it at this late date.” [8]

[24] Similarly a plaintiff is faced with a dilemma in pleading. There are risks in pleading too broadly because it may lead to lengthy and protracted discovery and production disputes and may have implications for costs. Moreover it has been found to be improper to plead facts for which the plaintiff has no proof simply to get production and discovery. Such a pleading may be struck as constituting an improper “fishing expedition.” [9]

[25] On the other hand (notwithstanding the fact that Rule 26.01 permits pleading amendments even at trial) pleading too narrowly can be fatal. In Rodaro v. Royal Bank of Canada [10] the Ontario Court of Appeal emphasized that a trial judge is not entitled to find liability on a theory or claim that is not pleaded and a defendant is not entitled to succeed on a defence that it did not plead. The principle that a trial judge cannot step outside the pleadings was most recently reaffirmed by the Court of Appeal in Carfrae Estates Ltd. v. 2108790 Ontario Inc. [11] Consequently, while an overly technical approach to pleadings is to be avoided, a party cannot lightly take the risk of failing to plead a fact that may be important at trial.

[26] Pleading appropriately is not aided by the fact that Rule 25.06 is not a complete code. Rule 25.06 (8) requires an additional degree of particularity for pleas of fraud, misrepresentation, malice or intent but jurisprudence or in some cases other statutes dictate different levels of particularity for other kinds of claims. Examples are foreign law, res judicata, discrimination, libel and slander and of course negligence. [12]

b) Use of Boilerplate

[27] The need to plead material facts at a time when the plaintiff cannot necessarily know all of those facts has given rise to the use of “boilerplate”. Plaintiff’s counsel in motor vehicle litigation seem particularly prone to this and it is common to read allegations of negligence which turn out to have no substance whatsoever. For example a defendant driver will typically be accused of speeding and driving while under the influence of drugs or alcohol in a vehicle that has not been kept in good repair even if there is no reason to suspect this to be the case. Paragraphs 17 and 18 of the existing statement of claim are examples in which these types of allegations are made against Patrick Cadieux and against Scott Ray.

[28] The use of boilerplate allegations of negligence is inflammatory and has been criticized. [13] In Basdeo v. University Health Network [14] Justice Nordheimer granted a motion to strike boilerplate pleading in a medical malpractice action. In his view the lengthy list of allegations of negligence could be characterized as “conclusions without the pleading of the facts which would give rise to those conclusions.” As such, the pleading failed to meet the requirement in Rule 25.06 that a pleading contain a concise statement of material fact.

[29] A different conclusion was reached by Justice Aitken in a similar motion in Chenier v. Hopital General de Hawkesbury [15]. It was her view that it would be unduly onerous to require the plaintiff to describe in detail what transpired at an early stage in the proceeding when the information necessary to do so was within the control of the defendants.

[30] The Court of Appeal has recently considered the matter and has preferred the reasoning in Chenier to that in Basdeo. [16] I do not interpret the Court of Appeal to be encouraging the pleading of fictitious or speculative allegations but at least in the context of medical malpractice actions, the court has held that a pleading cannot be struck simply because the plaintiff lacks a precise foundation for such allegations. It may significantly impede access to justice if plaintiffs are held to an overly rigorous standard of particularity at an early stage in the litigation. All that is required is a sufficient statement of the material facts to permit the defendant to deliver a statement of defence. [17]

[31] The arguments may be different in the case at bar. Here the plaintiffs seek to introduce a shopping list of potential negligence allegations into litigation that has been continuing for over four years concerning an accident that took place in 2010. There has been production and discovery and there has been adequate time to fully investigate all of the circumstances. There is in my view far less justification for the use of a boilerplate pleading at this stage in the litigation. To the contrary, the parties should be seeking to narrow the issues and move the action towards resolution or trial. The introduction of 42 subparagraphs of largely speculative ways in which the municipality may have failed to meet a duty of care should not be encouraged.

c) Pleading Similar Fact Evidence

[32] The defendant also attacks the proposed pleading as improperly pleading evidence. Specifically the plaintiff seeks to plead that the municipality knew or ought to have known of 53 previous collisions at the intersection in question. The number 53 is repeated in more than one of the subparagraphs. I have no idea why the plaintiffs wish to tie themselves to such a specific number. In other subparagraphs the plaintiffs simply propose to plead that there was a dangerously high number of collisions.

[33] The assertion that there were 53 previous collisions is clearly a pleading of evidence. The plaintiffs assert that this is permissible under a line of cases that support pleading of similar fact evidence. This is an important practice point which requires clarification.

[34] I reviewed the jurisprudence in relation to the pleading of similar fact evidence in Toronto v. MFP Financial Services Ltd. [18] Not much has changed since then. As pointed out in the MFP decision, it is a mistake to read the caselaw as conflating the question of pleading similar facts with pleading similar fact evidence. The pleading rule is not the same as the evidentiary rule and the question of admission of similar fact evidence as evidence of character or propensity is an issue for the trial judge.

[35] The pleading rule is that similar facts may be pleaded providing they are relevant and providing the addition of the similar facts does not unduly complicate the proceeding. In MFP for example I refused the proposed amendment because the similar facts alleged had to do with disputed conduct by MFP in other municipalities. As those allegations had never been proven and were the subject of litigation that had been settled, the addition of those allegations would have required a trial of whether MFP did or did not engage in the alleged improper conduct in Windsor and Waterloo as well as Toronto. This was not a matter of pleading evidence. It was a matter of complicating an already complex piece of litigation on the eve of trial.

[36] Similar facts may be relevant in a number of ways that have nothing to do with the similar fact evidence rule. For example in the proposed pleading the plaintiffs seek to argue that there was a high volume of accidents at the Fallowfield / Woodroffe intersection. The purpose of that allegation is to argue that the municipality was on notice of the danger and therefore had a duty to take remedial steps. In negligence actions, the duty of care is always intertwined with questions of foreseeability and risk so the history of previous accidents in a particular location is almost always relevant at a pleading stage. Whether the use of similar facts will require the judge to make use of the similar fact exception to character evidence is a question for trial.

[37] In Brown v. Gravenhurst [19] the court used the history of accidents as evidence to determine that a roadway with a curve was particularly susceptible to accidents after rainfall. The court also used the evidence that such accidents were reduced after the roadway was resurfaced to conclude there was a problem with the surface of the road at the time of the accident in question in that litigation. In Housen v. Nikolaisen [20] the Supreme Court of Canada approved of the use of evidence of previous accidents by the trial judge. As part of her analysis, the trial judge had concluded that the number of recent accidents on the road in question should have put the municipality on notice of a hazard. That triggered a duty to investigate and thus a duty of care which was not met. There can be no question that pleading a history of accidents at this intersection is a relevant and proper pleading in the case at bar.

[38] It is another thing entirely to run roughshod over Rule 25.06 and permit the pleading of specific evidence. The pleading of 53 previous accidents is unnecessarily specific. And it matters little whether this or some other number is correct. The question is whether the number of accidents at this intersection should have alerted the municipality to heightened risk and required it to take some additional protective steps. As in Brown it is possible that a pattern of similar accidents might also be used to establish causation. In neither case is the number 53 conclusive or necessary. It follows that the pleading of previous accidents is proper but the pleading of evidence is not.

d) Prolix and repetitive pleading and pleading in the alternative

[39] It is of course permissible to plead in the alternative providing it is clear that the inconsistent allegations are pleaded in as such. [21] Ottawa complains that in this proposed pleading, the plaintiffs have pleaded various overlapping allegations that cannot all simultaneously be true. I agree with this position. If these are alternative factual contentions, the pleading must make this clear.

[40] Ottawa also complains that it should not have to respond to a pleading that contains 42 subparagraphs of which many appear to be the same but using different wording. The city should not have to parse each paragraph to see if it requires a subtly different response or raises different issues. Prolix pleadings offend the principle of proportionality and should not be encouraged.

Decision regarding the impugned paragraph

[41] Minor technical deficiencies should not be used to deny leave to amend. In this case, I agree with counsel for the city that the deficiencies are not minor. Because the city does not object to the substance of the amendment, I will approve it in principle but not in form.

[42] The plaintiffs therefore have leave to amend the pleading in all of the ways described at the beginning of these reasons which are on consent or unopposed. The plaintiffs may also make any other amendments contained in the draft pleading that were not opposed.

[43] Paragraph 20 may be amended to include specific allegations of negligence, failure of statutory duty and non-repair in relation to road design, signage, maintenance, and duty to warn as summarized in paragraph 15 above. The plaintiffs may also plead that the history of previous accidents at this location triggered a heightened duty of care including a duty to investigate and to respond with preventative measures. They may not however do so in the manner they have proposed. They are to remove repetitive subparagraphs, pleading of evidence and inconsistent allegations unless the latter are clearly pled in the alternative. Insofar as it is possible to do so at this stage of the proceeding, they are to avoid speculative or boilerplate pleading and instead plead with certainty, precision and sufficient particulars.

[44] The plaintiffs shall have 30 days to draft a pleading satisfactory to Ottawa in accordance with these reasons and if the parties cannot agree on the form of the revised pleading, I may be spoken to further.

Costs

[45] Ottawa is entitled to costs of this motion on a partial indemnity scale. Costs are fixed at $2,500.00.

Status of the decision

[46] At the time of the hearing I was a case management master. Though I was appointed a judge on June 16th, 2016 the decision is released in my capacity as master pursuant to s. 123 (1.1) and 123 (2) (c) of the Courts of Justice Act.

July 6th, 2016

Master C. MacLeod

Footnotes

[1] Magill v. Expedia Corp., 2010 ONSC 5247 at para. 38. [2] National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Ont. Gen. Div.). [3] Perell, Paul & Morden John, The Law of Civil Procedure in Ontario, 2010, LexisNexis at pp. 341 - 342. [4] Rule 25.06. [5] The Law of Civil Procedure in Ontario, supra, at p. 358. [6] See Gaur v. Datta, 2015 ONCA 1190 at paras. 32 & 37. [7] Whiten v. Pilot Insurance, 2002 SCC 18; [2002] 1 S.C.R. 595. [8] Whiten, ibid at para. 91. [9] See Lysko v. Braley (2006), 79 O.R. (3d) 721. See also Osborne v. Non-Marine Underwriters, Lloyds of London (2003), 68 O.R. (3d) 770 (S.C.J.). [10] (2002), 59 O.R. (3d) 74 (C.A.). [11] Carfrae Estates Ltd. v. 2108790 Ontario Inc., 2012 ONCA 489. [12] The fact that the rule requires different levels of particularity for certain claims is not meaningless. See Khan v. Lee, 2014 ONCA 889; 123 O.R. (3d) 703 & 709 (C.A.) at para. 20. [13] See Abrams & McGuiness, Canadian Civil Procedure Law, LexisNexis Ltd., 2008 at para 5.57, page 391 which advocates pleading with certainty and precision and the avoidance of fictitious allegations. [14] Basdeo v. University Health Network, [2002] O.J. No. 263 (S.C.J.). [15] Chenier v. Hopital General de Hawkesbury, [2006] O.J. No. 1679 (S.C.J.). [16] Khan v. Lee, supra – note 12. [17] Khan, ibid. [18] Toronto v. MFP Financial Services Ltd., [2005] O.J. No. 3214; (2005) 17 C.P.C. (6th) 338 (Master). [19] Brown v. Gravenhurst, [1995] O.J. No. 561; (1995) 26 M.P.L.R (2d) 102 (Ont. Gen. Div.). [20] Housen v. Nikolaisen, 2002 SCC 33; [2005] 2 S.C.R. 235. [21] Rule 25.06 (4).