Court File and Parties
Court File No.: 5120/12 Date: 2016/10/05 Superior Court of Justice – Ontario
Between: Rosalyne Froese, Plaintiff (Moving Party) And: Complex Services Inc., Defendant (Respondent)
Counsel: Margaret A. Hoy, for the Plaintiff (Moving Party) Kimberly D. Pepper, for the Defendant (Respondent)
Motion Heard at WELLAND, Ontario: September 14, 2016
Before: The Honourable Justice T. Maddalena
Endorsement on Motion
Request for Adjournment to Cross-Examine
[1] The plaintiff (moving party) brought a motion returnable September 14, 2016 to amend her statement of claim dated June 6, 2012, pursuant to Rule 26.01 of the Rules of Civil Procedure.
[2] The plaintiff thereafter on September 14, 2016 then sought an adjournment of the motion for the purposes of cross-examination of the affiant of the defendant (responding party) Mr. Paul Pingue.
[3] Ultimately, the test of whether there is prejudice, which cannot be compensated for by costs or an adjournment, as defined in Rule 26.01 of the Rules of Civil Procedures is very specific and fact-driven in each case.
[4] The affidavit of Mr. Pingue, sworn September 8, 2016, is largely a recitation of the history of this matter together with supporting documentation, ultimately familiar to both the plaintiff and the defendant.
[5] I determined that the cross-examination of Mr. Pingue would not be useful or probative, as ultimately it is in the court’s discretion to determine whether prejudice exists.
[6] I conclude that cross-examination would be of no assistance and, therefore, the request for the adjournment to cross-examine Mr. Pingue is denied.
[7] The sole issue for adjudication on this motion is whether the plaintiff should now be permitted to amend her statement of claim.
The Position of the Plaintiff (Moving Party)
[8] According to the draft presented, the amendments to the statement of claim include the following:
- In proposed amended paragraph 13, the plaintiff proposes to plead that the defendant dismissed the plaintiff when it knew that she was on modified work as a result of the injury suffered by her while employed by the defendant;
- In proposed amended paragraph 14, the plaintiff proposes to assert that the defendant was advised of the nature of the plaintiff’s injuries and resulting disabilities and that the plaintiff had to be away for surgeries for repairs to her injuries when she was dismissed;
- In proposed amended paragraph 15, the plaintiff proposes to plead that the defendant knew of her injuries and impending surgery when she was dismissed and that the dismissal was in bad faith;
- In proposed amended paragraph 16, the plaintiff proposes to plead that the defendant knew or ought to have known that she would be unable to find employment following her dismissal due to her injuries and impending surgery;
- In proposed amended paragraph 17, the plaintiff pleads that she is no longer eligible for benefits which the employer knew or ought to have known would cause the plaintiff to suffer damages.
- Under the heading of damages, the plaintiff proposes to amend her claim for general damages from $100,000 to $1.5 million, and further she proposes to delete her claim for mental distress damages in the amount of $50,000.
The Position of the Defendant (Responding Party)
[9] The defendant opposes all the proposed amendments at this late stage.
[10] The defendant submits that to allow the amendments, now more than six years following the plaintiff’s termination and more than four years after the issuance of the statement of claim would result in prejudice to the defendant that cannot be compensated by an adjournment or by costs.
Background
[11] The plaintiff commenced employment with the defendant on or about October 15, 1996. The plaintiff’s employment was terminated without cause on or about August 27, 2010.
[12] The plaintiff commenced an action by way of a statement of claim, dated June 6, 2012.
[13] The defendant served and filed its statement of defence and Rule 49 offer on July 13, 2012.
[14] The pleadings were closed. The plaintiff took no steps to proceed and therefore in July 2014 a dismissal notice was issued.
[15] The defendant consented to setting aside the dismissal order. The action was reinstated and proceeded in accordance with a consent timetable.
[16] The plaintiff’s statement of claim issued June 6, 2012 pleaded specific reasons why she was unable to mitigate damages by securing alternate employment. These reasons were outlined in paragraphs 9, 11 and 12 of the statement of claim and included references to the plaintiff’s age, specialized skills, and the economic climate at the time.
[17] There was no mention by the plaintiff of the inability to mitigate as a result of a medical disability.
[18] The plaintiff’s affidavit of documents, sworn May 26, 2014, contained some medical records spanning January 10, 2010 to September 5, 2013. All but two documents predate the issuing of the plaintiff’s statement of claim.
[19] None of the medical records disclosed by the plaintiff to the defendant contained any opinion or comment regarding the plaintiff’s inability to work on the date of termination or any time thereafter.
[20] The defendant knew the plaintiff was on a modified work program at the time of the termination of employment.
[21] At the discovery, the plaintiff gave evidence that in August 2011 she made 11 applications seeking work.
[22] Importantly, during the plaintiff’s discovery, held May 6, 2015, the plaintiff was asked about the notice period being claimed. The plaintiff’s counsel responded that the claim was $100,000 in general damages based upon a 24 month notice period.
[23] Reference was made by plaintiff’s counsel for the first time in that discovery to the plaintiff being dismissed “in the face of a disability”. Defence counsel’s position to the plaintiff was that this was not pleaded in the statement of claim.
[24] During her submissions at the motion, the plaintiff’s counsel argued that a medical note dated February 17, 2010 stating, “Patient needs to start disability forms (illegible) right shoulder problems” from Urgent Care Niagara should have been sufficient to put the defendant on notice regarding the inability to mitigate due to medical disability. Plaintiff’s counsel argued that the defendant knew or ought to have known about her disability and that her ability to work was compromised due to this medical note.
[25] By letter dated May 12, 2015, the plaintiff’s counsel sent to the defendant’s counsel a proposed amended statement of claim. By correspondence of May 13, 2015, the defendant’s counsel advised she did not consent to the proposed amendments.
[26] A pretrial conference was held October 28, 2015 and at that conference the plaintiff advised the defendant she would be bringing a motion to amend the statement of claim.
[27] Importantly, by correspondence dated December 4, 2015, the plaintiff’s counsel then advised the defendant’s counsel that the plaintiff would not proceed with the motion to amend the statement of claim.
[28] The trial of this matter was set to commence August 15, 2016, but actually commenced August 16, 2016.
[29] By correspondence dated August 11, 2016, the plaintiff’s counsel wrote to defendant’s counsel and enclosed a two-page handwritten note by Dr. Altin Reka, dated November 11, 2015. In the note, the doctor opined therein that “it was impossible for the patient to find any gainful employment … due to neck and shoulder and unsuccessful surgeries ….” The plaintiff had never previously produced this note to the defendant, although it is dated November 11, 2015.
[30] By correspondence dated August 12, 2016, the defendant advised the plaintiff of its objection to the admissibility of the note at trial.
[31] On the eve of trial, the plaintiff advised the defendant that the plaintiff now intended to bring a motion at the commencement of the trial to amend the statement of claim and, again, sent a proposed amended claim. The defendant noted that the proposed amended claim forwarded by the plaintiff was identical to the proposed amended claim sent to the defendant in May 2015.
[32] The trial commenced and the trial judge ordered an adjournment of the trial and granted the plaintiff leave to bring a motion to amend her statement of claim. The order notes “that the plaintiff is granted leave to bring a motion to amend her statement of claim with respect to her ability to mitigate due to medical reasons with such motion to be returnable within 30 days.”
Analysis
[33] Rule 26.01 of the Rules of Civil Procedure states 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.
[34] The plaintiff claims there is no prejudice to permitting the amendments that cannot be compensated by costs or an adjournment.
[35] The plaintiff further claims that because of the February 2010 medical document in the plaintiff’s affidavit of documents, and because the plaintiff was on a modified work program, the defendant knew or ought to have known about her medical issues as well as her inability to work (although never pleaded in plaintiff’s statement of claim).
[36] Counsel for the plaintiff states it was mere “inadvertence” on the part of counsel that the inability to mitigate for medical reasons was not specifically pleaded in the statement of claim. Therefore, there was no reference to the plaintiff’s disability in the issued claim.
[37] The plaintiff further claims that the defendant knew that the plaintiff was disabled and the issue of the disability was not a surprise to them. The plaintiff states, in submissions, that the defendant knew the plaintiff was unable to work when they dismissed her.
[38] I disagree with all of the assertions of the plaintiff.
[39] Firstly, based on the issued statement of claim, the defendant had no reason to believe this was anything other than a claim for wrongful dismissal damages premised on a 24-month notice period and a claim for $100,000.
[40] The plaintiff’s issued claim particularizes the ability to mitigate as being linked only to age, specialized skill, and a general economic climate. There is nothing whatsoever regarding the alleged disability in this claim.
[41] Further, being on modified duties at the date of termination does not mean necessarily that the defendant should know that the plaintiff was medically incapable of looking for work. In fact, the evidence discloses that, at the discovery, the plaintiff admitted to looking for work, not that she was unable to work.
[42] Further, the defendant could not determine from the issued statement of claim that the plaintiff would assert that she was unable to work.
[43] What is clear is that at the time the claim was issued, the plaintiff ought to have known the reasons why she remained unemployed. She was best in a position to assess whether her medical condition played a role in her ability to mitigate and/or find alternate employment.
[44] There is no reference whatsoever to her medical condition in her issued statement of claim, despite the substantial medical notes that were in the plaintiff’s possession well before the issuance of her claim. In fact, the plaintiff admitted at her discovery that she had made applications to various employers after her termination in an attempt to mitigate.
[45] The termination occurred more than six years ago. There are a number of prejudices that arise here which cannot be compensated by an adjournment or costs.
[46] The defendant is now prevented by the passage of time from challenging the plaintiff’s proposed claims by requesting a timely defence medical report, or a timely discovery of the plaintiff’s medical issues.
[47] The defendant is prevented from obtaining any timely reports dealing with career counselling or occupational therapy dealing with available employment. In short, the defendant is deprived of the effective opportunity to investigate the plaintiff’s physical condition in a timely fashion. The defendant is further prejudiced by being unable to retain experts regarding the plaintiff’s mitigation efforts pertaining to the disability.
[48] In the case of Bharadwaj v. Advocate General Insurance Co. of Canada, 1987 CarswellOnt 462, the court noted in para. 8 as follows:
… The defendant has been deprived of all effective opportunity to investigate the plaintiff’s physical condition in a timely fashion. She is an insured and owes her insurer the duty of full disclosure and good faith. In my view, it would be highly prejudicial to the defendant to allow the plaintiff to make the amendment sought by this motion and the motion is, therefore, dismissed with costs.
[49] In the instant case, there is a huge prejudice to the defendant and a potentially lengthy delay of trial. An amended claim would require an amended statement of defence and a new discovery. This would require effectively, some six years later, starting over.
[50] In the case of Ontario (Securities Commission) v. Stuart Bruce McLaughlin & Co., 2008 CarswellOnt 7935, the court held as follows at paras. 73 and 74:
73 All parties have a right to a fair determination of a civil claim within a reasonable time period. In my view, and I so find, given all the circumstances of the course of the litigation at hand, in particular, the inordinate long delay in moving forward to a trial, which I find to have been mainly caused by the actions of the defendants, there is prejudice to the plaintiffs in not being able to proceed to a trial at the earliest date possible. This prejudice cannot be compensated by an award of costs.
74 The Court of Appeal stated in R. v. Stanley, [2001] O.J. No. 669 (Ont. C.A.) at para 6:
…While delay is not in and of itself a basis for refusing an amendment, there must come a point where the delay is so long and the justification so inadequate that some prejudice to the defendants will be presumed absent a demonstration by the party seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay.
[51] I find there is further prejudice to the defendant in that the medical disability issue was raised by the plaintiff’s counsel at the discovery in May 2015. The plaintiff brought no motions once the issue arose at the discovery. In fact, in correspondence dated December 4, 2015 the defendant understood that no amendments were being sought by the plaintiff. The plaintiff clearly advised the defendant that she was not proceeding with amending the statement of claim. Then, at the trial of this matter, scheduled for August 2016, a motion was brought on the day of the trial for the same amendment.
Re: Bad Faith Claim
[52] The proposed statement of claim seeks to add a claim for bad faith.
[53] In my view, the claim dealing with bad faith is statute-barred. There is no acceptable reasonable explanation why such a claim would be raised more than six years after the termination of the plaintiff’s employment.
[54] The plaintiff has stated mere “inadvertence” as the reason. I find that this is not sufficient.
[55] The plaintiff states this is not a new cause of action and, therefore, the Limitation Act does not apply. I do not agree, but even if that is correct, the order of the Trial Judge granting the plaintiff leave to bring her motion to amend was only “with respect to her ability to mitigate due to medical reasons”. Pleading bad faith is not referenced in the order of the Trial Judge.
Conclusion
[56] I find that the request by the plaintiff for the proposed amendments is prejudicial to the defendant to the extent that prejudice cannot be compensated by an adjournment or costs.
Order Made
[57] The motion of the plaintiff is dismissed.
Costs
[58] Costs submissions are limited to two pages, plus any bill of costs, and/or offers to settle. The defendant’s submissions are due October 19, 2016. The plaintiff’s submissions are due November 2, 2016.
Maddalena J.