Villeneuve v. A.G. Canada, 2016 ONSC 6490
CITATION: Villeneuve v. A.G. Canada, 2016 ONSC 6490
COURT FILE NO.: CV-10-0182-00
DATE: 2016/10/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JODY VILLENEUVE and
MADISON ASHLEY VILLENEUVE BY HER LITIGATION GAURDIAN JODY VILLENEUVE
Plaintiffs
AND
ATTORNEY GENERAL OF CANADA
Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Joel Levine, for the defendant (moving party)
Christopher Robertson, for the plaintiffs (responding parties)
HEARD: October 3, 2016
ENDORSEMENT
[1] This action was set down for trial by the plaintiffs in August 2015 with the consent of the defendant. It is one year later and the defendant seeks leave to bring (a) a motion for leave to amend its statement of defence and (b) a motion for summary judgment. The trial date is three months away, with the trial scheduled to proceed in early January 2017 for ten days before a judge alone.
[2] In July 2008, Stephane Villeneuve, a correctional officer employed at the Warkworth Institution, fatally shot himself at his place of employment using an institutional firearm. The plaintiffs are his wife and daughter. Their claims are advanced pursuant to s. 61 of the Family Law Act (“FLA”).[^1]
[3] The action has a lengthy history. Pleadings were closed in October 2010. Documentary discovery issues resulted in a motion brought by the defendant in October 2013 for production of documents from a non-party, the Ontario Provincial Police. The motion was allowed on consent in February 2014.
[4] The action was dismissed for delay in April 2014. Based on the evidence before me, I infer that the dismissal was administrative and not the result of a motion on behalf of the defendant. The dismissal order was set aside in May 2014. At that time, the parties agreed to a timetable for the balance of the steps in the action. That timetable was not met and an amended timetable was agreed upon. The deadline by which the action was to be set down for trial was extended from March to August 2015. In the latter month, and with the consent of the defendant, the plaintiff set the action down for trial.
[5] A pre-trial conference was held in May 2016. The report from that conference identifies that the plaintiffs, collectively, and the defendant each anticipate calling eight to ten witnesses at trial − a total of 16 to 20 witnesses. The January 2017 trial date was set at the pre-trial conference.
Positions of the Parties
[6] The defendant’s current counsel has been counsel of record since late 2013 or early 2014. She was not counsel of record when the defendant’s pleading was prepared and served. She was, however, counsel of record when the examinations for discovery were conducted in 2014 and 2015. She was also counsel of record as of the date of the pre-trial conference.
[7] Counsel for the defendant is candid in her admission as to the timing of her discovery of the proposed defences to the plaintiffs’ claims. It was not until July 2016, when she was preparing for trial, that counsel for the defendant became aware of the potential defences that are the subject of this motion. It is the opinion of counsel for the defendant that the proposed defences constitute a complete bar to the plaintiffs’ claims. The defendant seeks leave to amend its pleading and, if the pleading is amended, to rely upon the amendments in support of a motion for summary judgment.
[8] Counsel’s evidence is that she believes it is her duty, as an officer of the court, to raise the proposed defences prior to trial. It is not disputed that upon identifying the potential defences, counsel for the defendant proceeded expeditiously with this motion for leave to initiate further motions.
[9] The summary judgment motion is tentatively scheduled for February 2017. If the defendant is granted leave to proceed with the motion for summary judgment, the trial will have to be adjourned from January 2017. The earliest date to which the trial can be adjourned is May 2017, assuming all counsel, parties, and witnesses are available to proceed at that time.
[10] In response to the motion for leave to bring a motion for leave to amend the statement of defence, the plaintiffs question the substantive merit of the proposed defences. Counsel for the plaintiffs indicated that if the only relief requested on behalf of the defendant was for leave to initiate a motion for leave to amend the statement of defence as proposed, the plaintiffs would consent to leave being granted to bring the motion and to the defendant’s pleading being amended as proposed. The plaintiffs’ consent in that regard would be conditional on them being able to deliver a reply. However, given that the defendant also seeks leave to proceed with a motion for summary judgment, the plaintiffs oppose all aspects of the relief sought on behalf of the defendant.
[11] The plaintiffs emphasize the difficulties and delay that may be encountered in re-scheduling the trial if it is adjourned from the January 2017 date to allow the motion for summary judgment to be heard. The plaintiffs point out that it has been more than eight years since the incident giving rise to this action. They want their “day in court” and to see the matter brought to a conclusion.
[12] The evidence on behalf of the plaintiffs is that the two lawyers by whom they will be represented at trial are each already scheduled to participate in other trials in May 2017. Senior counsel is scheduled for trials in two other matters and associate counsel is scheduled for one trial in another matter.
[13] The plaintiffs rely on what will be a delay of four months, at a minimum, as prejudice they will suffer and for which they cannot be compensated by costs should the defendant be granted leave to proceed with a motion for summary judgment.
[14] A critical element of the defendant’s position with respect to the proposed motion for summary judgment is that the motion, if permitted, will not prejudice the plaintiffs with respect to costs in any way. Specifically, the defendant’s position is as follows:
• The costs incurred by the parties for a summary judgment motion will be significantly less than the costs of a ten-day trial.
• The potential adverse costs award that the plaintiffs face will be less if the motion for summary judgment is successful than if the action is dismissed after a ten-day or longer trial.
• If the defendant is not successful on the motion for summary judgment the plaintiffs will be entitled to their costs of the motion.
[15] In the supporting affidavit of counsel for the defendant (“the Laldin Affidavit”), counsel expresses her opinion that a summary judgment motion would provide the most just, expeditious, and least expensive determination of the action. The evidence of counsel for the defendant is that the proposed motion for summary judgment would involve “limited evidence” in comparison to a ten-day trial involving 16 to 20 witnesses.
[16] There is no evidence on behalf of the defendant as to the costs the defendant anticipates will be incurred by the parties for the motion for summary judgment or for the ten-day trial. The plaintiff did not filed any evidence on the motion in response to the opinion of counsel for the defendant with respect to the expeditiousness and cost-effectiveness of the proposed motion for summary judgment.
The Issues
[17] The primary issue to be determined is whether the defendant is entitled to leave to bring (a) a motion for leave to amend its statement of defence and (b) in turn, a motion for summary judgment.
[18] Counsel for the parties are in agreement that if the answer to (a) is “yes”, I am to determine the motion for leave to amend the statement of defence. They are also in agreement that if the answer to (b) is “yes”, then the trial is to be adjourned and the motion for summary judgment is to proceed in February 2017.
Issue No. 1: Leave to Initiate the Motions
a) Leave to Amend the Statement of Defence
[19] The consequence of consenting, as did the defendant in this matter, to an action being set down for trial is that the party so consenting “shall not initiate or continue any motion or form of discovery without leave of the court.”[^2] However, where that party seeks to initiate a motion for leave to amend its pleading, consideration must be given to rule 26.01 of the Rules of Civil Procedure. Rule 26.01 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.”
[20] The defendant’s position is that the mandatory wording of rule 26.01 is paramount, even when leave to amend a pleading is sought on the eve of trial and may result in delay through an adjournment of the trial. The defendant acknowledges that balanced against the mandatory wording is the consideration to be given to prejudice to the responding party and whether that prejudice can be compensated for in costs.
[21] The defendant argues that the plaintiffs will not be prejudiced in any way for which they cannot be compensated in costs if the defendant is granted leave to amend its pleading.
[22] The plaintiffs’ position is that the defendant should not be granted leave to bring a motion for leave to amend its pleading unless the defendant is able to demonstrate a substantial and unexpected change of circumstances. The submissions made on behalf of the defendant include an acknowledgement that there has not been such a change of circumstances. As a result, the defendant should not be granted leave to bring a motion for leave to amend its pleading.
[23] I find that the acknowledgement made on behalf of the defendant as to the lack of a substantial or unexpected change of circumstances was made with respect to the test to be met in seeking leave to proceed with a motion for summary judgment. As a result, that acknowledgement is not relevant for the purpose of the defendant’s motion for leave to proceed with a motion for leave to amend its pleading.
[24] In Plante v. Industrial Alliance Life Insurance Co.,[^3] Master MacLeod (as he then was) reviewed the history of the test set out in rule 26.01 and the manner in which that test is to be applied in conjunction with rule 48.04. He concluded that the prejudice referred to in rule 26.01 is something more than having to respond to an additional defence or incur additional costs. Prejudice that cannot be compensated for in costs is “such that it would be unfair to now have to respond to the [defence] even if it would have been legitimate in the first instance.”[^4] The prejudice must be “irremediable”.[^5]
[25] On a motion for leave to amend, the court is not required to conduct a detailed examination of the merits of the proposed amendment. The court is, however, required to scrutinize the proposed amendment to ensure that it is meritorious in as much as it raises a tenable plea. Amendments are to be granted unless the proposed pleading is “clearly impossible of success”.[^6]
[26] In summary, Master MacLeod concludes, at paras. 22 to 24, that rule 26.01 is to be applied as set out below. This is so even when the motion for leave to amend a pleading is brought after the action has been set down for trial:
In short, Rule 26.01 requires that a properly framed proposed amendment that is tenable at law will be allowed providing it does not result in prejudice that cannot be addressed in costs. This brings a logical consistency to the rules ...
Amendments must be permitted even if sought on the eve of trial and even if it results in delay through adjournment of the trial …
Leave is required under Rule 48.04 for a motion to amend after setting the action down for trial but such leave is generally to be granted or Rule 26.01 would be meaningless.
[27] Applying the test as summarized by Master MacLeod, I grant the defendant leave to proceed with the motion for leave to amend its statement of defence. In the section which follows, I turn to the substance of the proposed amendments and the application of the test for leave to amend a pleading.
b) The Substance of the Proposed Amendments
[28] Applying the principles from Plante to the motion before me, consideration must be given to whether the proposed amendments are tenable at law. The merits of the proposed amendments were addressed in argument before me in greater detail than would be the norm on a motion for leave to amend. Greater attention was given to the merits because of the requirement, on a motion for leave to bring a motion for summary judgment, to consider the likelihood of success of the proposed motion for summary judgment (i.e. assuming leave to amend the pleading is granted).
[29] The defendant seeks leave to add to its statement of defence a section titled “No Right of Action”, and to include the following paragraphs in that section of the amended pleading:
The defendant pleads that in accordance with s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, this derivative action cannot proceed as Mr. Villeneuve would not have been entitled to bring this claim had he not been killed.
Mr. Villeneuve was a unionized employee in accordance with Agreement Between Treasury Board and the Union of Correctional Officers, Expiry Date May 31, 2010 (“collective agreement”). The defendant pleads that the within action is barred pursuant to s. 236 of the Public Service Labour Relations Act S.C. 2003, c. 22, s. 2, and common law.
[30] The defendant also seeks leave to add to its pleading a section titled “General Pleadings”, and to make reference as follows to various statutes and other documents:
- The defendant pleads and relies on:
a) Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50
b) Family Law Act, R.S.O. 1990, c. F.3
c) Agreement Between the Treasury Board and the Union of Correctional Officers, Expiry Date May 31, 2010
d) Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2
e) Canadian Human Rights Act, R.S.C. 1985, c. H-6
f) Corrections and Conditional Release Act, S.C. 1992, c. 20
g) Commissioner’s Directive 001 – Mission, Values, and Ethics Framework of the Correctional Service of Canada
h) Commissioner’s Directive 60 – Code of Discipline
i) Any other policy, directive, statue, and regulation that counsel may advise.
[31] In the Laldin Affidavit, reference is made to the derivative nature of the plaintiffs’ claims and to s. 236 of the Public Service Labour Relations Act (“PSLRA”). Several pages of the collective agreement referred to in proposed paragraph 41(c) are included as an exhibit to the Laldin affidavit.
[32] I shall deal first with proposed paragraphs 41(e) to (i). Proposed paragraphs 29, 30, and 41(a) to (d) are addressed further below.
[33] With respect to proposed paragraphs 41(e) to (i), I take into consideration the following factors:
• There is no reference in the substantive portion of the Laldin Affidavit, or in the exhibits to that affidavit, to the statutes listed in proposed paragraphs 41(e) to (f) or to the documents listed at proposed paragraphs 41(g) to (h), above.
• Copies of several sections of the Canadian Human Rights Act (proposed paragraph 41 (e), above) are included at Appendix ‘B’ to the defendant’s factum. There is, however, no explanation in the factum as to how those statutory provisions are relevant to the defence of the action.
• No particulars are provided of the documents referred to in proposed paragraph 41(i).
[34] Absent any evidence as to the relevance of the statutes listed in proposed paragraphs 41(e) to (f), I am unable to find that the reference to the statutes alone raises a tenable defence. Absent any evidence as to the relevance of the documents listed at proposed paragraphs 41(g) to (h), I am unable to find that the reference to the documents alone raises a tenable defence. The general description of documents in proposed paragraph 41(i) is so broad and vague as to also be untenable.
[35] Paragraphs 29, 30, and 41(a) to (d) of the proposed amended pleading are referred to hereinafter as “the Proposed Amendments”. The defendant’s position is that, when the Proposed Amendments are considered in their entirety, they establish a complete bar to the plaintiffs’ claims. In summary, the defendant’s submissions with respect to the Proposed Amendments are as follows:
• As a correctional officer at Warkworth Institution, Mr. Villeneuve was subject to the Agreement Between the Treasury Board and the Union of Correctional Officers (“the Collective Agreement”).
• The Collective Agreement required the employer to “make reasonable provisions for the occupational safety and health of employees.”[^7]
• In the statement of claim, the acts and omissions alleged on the part of the defendant are, in essence, that as Mr. Villeneuve’s employer, the defendant:
➢ Failed to address Mr. Villeneuve’s mental health condition (paragraphs 17(a), (b), and (e) of the amended statement of claim); and
➢ Permitted Mr. Villeneuve to have access to a restricted firearm (paragraphs 17(c), (d), and (f) of the amended statement of claim).
• These allegations relate to the occupational safety and health of Mr. Villeneuve and as a result were subject to the grievance procedure provided in the Collective Agreement.[^8]
• Subsection 236(1) of the PSLRA is given the marginal note descriptor “Disputes relating to employment”. The subsection provides that “[t]he right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.” This section applies whether or not the employee chose to file a grievance and whether or not the grievance could be referred to arbitration.[^9]
• The essential character of the allegations set out in paragraphs 17(a) to (f) of the amended statement of claim is such that they fall within the scope of the matters for which Mr. Villeneuve, as an employee of the defendant, had the right to present an individual grievance. Those matters are identified in paragraphs 208(1)(a) and (b) of the PSLRA.
• The plaintiffs’ claims are derivative of Mr. Villeneuve’s. Given that he had the right to grieve issues of occupational safety and health, and regardless of the fact that he did not do so prior to his death, the plaintiffs’ claims are barred by virtue of the operation of the Collective Agreement and ss. 208 and 236 of the PSLRA.
[36] The plaintiffs’ position is that ss. 208 and 236 of the PSLRA require a closer examination than given by the defendant, in particular so as to identify the rights of employees specified in those sections and, by extension, the Collective Agreement. Subsection 208(1) is given the marginal note descriptor “Right of employee” and provides as follows:
(1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of an occurrence or matter affecting his or her terms and conditions of employment.
[37] The plaintiffs and the defendant agree that the essential character of the plaintiffs’ claims is to be determined on the basis of the guidelines established by the Supreme Court of Canada in Weber v. Ontario Hydro.[^10] Those guidelines are as follows:
• The facts giving rise to the dispute are to be considered; not the legal characterization of the wrong said to be manifested by those facts;
• By way of corollary, the language chosen by the parties to the collective agreement must clearly create rights and obligations that extend, either expressly or by implication, to the facts giving rise to the dispute; and
• The arbitration process provided in the collective agreement must furnish an effective remedy for the dispute.[^11]
[38] The plaintiffs submit that the essential character of their litigation does not arise from the interpretation, application, administration, or violation of the Collective Agreement. The remedy which the plaintiffs seek is not one which may be granted by an arbitrator. As a result, the jurisdiction of this Court is not ousted by virtue of ss. 208 and 236 of the PSLRA. The plaintiffs submit that they are entitled to pursue their remedy in this Court.
[39] The defendant relies on a number of cases, in addition to Weber, in support of its position that the essential character of the plaintiffs’ claims fall within the scope of the provisions of the Collective Agreement and ss. 208 and 236 of the PSLRA. In my view, none of those cases is relevant to the matter before me. In each of those cases, an action was commenced by an employee either alone or together with family members, the latter advancing derivative claims pursuant to s. 61 of the FLA or the equivalent statute in another province. None of the cases relates to physical injury suffered by or the death of an employee in the workplace.
[40] So as to distinguish the essential character of the cases relied upon by the defendant from the essential character of the matter before me, the nature and outcome of the cases are summarized below:
• An employee of Public Works Canada chose not to grieve the denial of entitlement to an early retirement incentive and instead chose to pursue a lawsuit against his employer. The Supreme Court of Canada upheld the decision of the Federal Court of Canada to strike the employee’s action. In doing so, the Court relied on the provisions in the Public Service Staff Relations Act[^12] (the predecessor to the PSLRA). The majority of the Court concluded that the legislative scheme should not be jeopardized by permitting parallel access to the courts. The employee’s rights could not be pursued in court by “dressing up” his claim as one in negligence.[^13]
• An employee of Air Canada pursued a grievance alleging that he had been unjustly accused and unfairly treated in the course of an investigation into the improper activation of a fire alarm. The grievance was pursued to arbitration and dismissed. The employee and his family members then commenced an action in which they alleged various torts and breaches of the Canadian Charter of Rights and Freedoms by Air Canada. The Ontario Court of Appeal held that the employee’s claims were grounded in conduct in the workplace and the disciplinary investigations surrounding that conduct. As a result, the claims were in their essential character governed by the Collective Agreement. The claims of the family members were derivative of the employee’s claims, had the same essential character, and therefore fell within the exclusive jurisdiction of the arbitrator.[^14]
• An employee of the Provincial Crown, who was a member of a bargaining unit, filed a grievance with respect to the manner in which she had been treated by a colleague. The grievance was ultimately settled. The employee then commenced an action in which she claimed damages for defamation as a result of a document written by the colleague and which had been addressed in the context of the grievance procedure. The Ontario Court of Appeal held that the facts of the dispute were workplace related and the essential character of the conduct complained of by the employee was covered by the collective agreement.[^15]
• Correctional officers employed at the Kingston Penitentiary brought an action against their employer. The employees alleged that they were targeted during an investigation of the methods by which inmates of the penitentiary obtained alcohol and illegal narcotics. The correctional officers sought (a) damages for the intentional infliction of emotional distress, breaches of good faith, and breaches of the Charter and (b) punitive damages. The Ontario Court of Appeal concluded that the jurisdiction of the court was ousted by virtue of the PSSRA and the collective agreement in place at the time.[^16]
• A former employee of Transport Canada left his employment without filing any internal grievances regarding treatment he considered to be harassment on the part of a Director within the department. The employee commenced an action against his former employer. The Ontario Court of Appeal concluded that the employee’s concerns were properly subject to the internal grievance procedures and, as a result, the court had no jurisdiction over the matter.[^17]
[41] The case involving correctional officers at the Kingston Penitentiary (Gaignard) is of interest for a number of reasons. First, it involved correctional officers employed at a federal penitentiary who were subject to a collective agreement similar in wording to the Collective Agreement in the matter before me. Second, in the appellate level decision, consideration is given to the impact of exclusive jurisdiction on the availability of a remedy for an alleged wrong. Third, in the decision at first instance, reference is made to the Government Employees Compensation Act.[^18] Neither the defendant nor the plaintiffs in the matter before me raised this statute as potentially relevant to the plaintiffs’ claims.
[42] At the appellate level in Gaignard, Goudge J. spoke of a “holistic” approach to the combined effect of a collective agreement and the governing legislation when considering the potential application of the principle of exclusive jurisdiction:
To apply the principle of exclusive jurisdiction if the result is that there is no ultimate remedy available either at arbitration or in court risks having a right without an effective remedy. In my view the legislature should be presumed to have effected such a result only if it has said so very clearly. Parliament has not done so in the PSSRA.
These considerations can in effect be consolidated by asking whether, considering the facts of the dispute, the language of the collective agreement, and the effectiveness of the remedy provided by the arbitration mechanism, this is the kind of dispute that the parties intended to be finally resolved there. If so, the principle of exclusive jurisdiction applies to exclude court action. Determining the essential character of the dispute in this way is consistent with the reality that the terms of the collective agreement both as to substance and as to dispute resolution reflect the shared intention of the parties. It provides some assurance that the disputes to be exclusively resolved by arbitration are ones that the process was designed to deal with.[^19]
[43] Taking a “holistic” approach to the PSLRA and the Collective Agreement, in my view it would be illogical to conclude that s. 236 of the PSLRA ousts the jurisdiction of this Court as it relates to the claims of family members of Mr. Villeneuve. Such a conclusion would support the following broader conclusions, applicable regardless of whether workplace safety and health issues were the subject of a grievance prior to the incident giving rise to a claim:
a) No correctional officer injured on the job could ever advance a claim for compensation for his or her injuries arising from the alleged failure of the employer to provide a safe and healthy workplace;
b) Similarly, the family members of a correctional officer injured on the job would also be precluded from advancing derivative claims for compensation; and
c) No family member of a correctional officer killed on the job could ever advance a claim for compensation stemming from the death of the employee arising from the failure of the employer to provide a safe and healthy workplace.
[44] In my view, the fact that Gaignard was decided on the basis of the PSSRA (and not the PSLRA) does not detract from the application of the decision to the matter before me.
[45] The copy of the Collective Agreement included as an exhibit to the Laldin Affidavit is incomplete. However, the exhibit includes a copy of Article 1 of the Collective Agreement. Article 1 is titled “Purpose and Scope of Agreement” and provides as follows:
1.01 The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Union and the employees and to set forth herein certain terms and conditions of employment for all employees described in the certificates issued by the Public Service Labour Relations Board on March 13, 2001 covering employees in the Correctional Group.
1.02 The purpose of this collective agreement is to establish, within the framework provided by law, orderly and efficient labour relations between the Employer, the Union and employees and to define working conditions aimed at promoting the safety and well-being of employees.
Moreover, the parties to this agreement also share the goal that the people of Canada will be well and efficiently served.
[46] There is no doubt that occupational safety and health of members of the Correctional Group is an element of the Collective Agreement. Article 18.01 of the Collective Agreement provides as follows:
The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Union, and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.
[47] I find that the essential character of the plaintiffs’ claims does not fall within the scope of the Collective Agreement. The plaintiffs’ claims do not arise in the context of labour relations (Article 1.02) or in the context of discussions between the Union and the Employer with respect to occupational safety and health of employees (Article 18.01).
[48] The grievance procedure established by Article 20 of the Collective Agreement gives individual employees rights to address unjust treatment by the Employer or action or lack of action by the employer by which an employee has been aggrieved. However, the right of the employee to follow the grievance procedure is subject to two exceptions including the following: “[W]here there is another administrative procedure provided by or under any Act of Parliament to deal with the employee’s specific complaint, such procedure must be followed.”[^20] In my view, this exception is relevant to the plaintiffs’ claims.
[49] A “holistic” approach to the combined effect of the Collective Agreement and the governing legislation requires consideration of other legislation that may be relevant to the plaintiffs’ claims. As noted above, one of the proposed amendments includes reference to the Crown Liability and Proceedings Act (“CLPA”).[^21] The proposed amendment in that regard does not include the particular sections of the CLPA upon which the defendant seeks to rely. There were no submissions made on behalf of the defendant as to why that legislation may be relevant to the defence of the plaintiffs’ claims.
[50] However, I note that s. 9 of the CLPA states as follows:
No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
[51] In the decision at first instance in Gaignard, reference is made to the Government Employees Compensation Act (“GECA”).[^22] That statute creates for employees in the service of Her Majesty, including correctional officers, the procedure by which employees and their dependants are entitled to obtain compensation for workplace injuries or fatalities. In summary, employees in the service of Her Majesty are compensated as they would be pursuant to the laws of the province in which they are employed.[^23] The compensation, although based on the provincial system, is paid out of the federal Consolidated Revenue Fund.[^24]
[52] The principle of exclusive jurisdiction is addressed in s. 12 of GECA, which provides as follows:
Where an accident happens to an employee in the course of his employment under such circumstances as entitle him or his dependants to compensation under this Act, neither the employee nor any dependant of the employee has any claim against Her Majesty, or any officer, servant or agent of Her Majesty, other than for compensation under this Act.
[53] The potential application of GECA is not before me on the defendant’s motion for leave to amend its pleading. My reference to GECA is not to be taken in any way as determinative of its application to the plaintiffs’ claims. Whether the plaintiffs’ claims fall within the scope of that legislation would be an issue to be determined at the trial of this action only if the defendant seeks leave to amend its pleading to include reference to that Act. The outcome on the issue is, in any event, not obvious. See, for example, the decision of the Public Service Labour Relations Board in Galarneau et al. v. Treasury Board (Correctional Service of Canada).[^25]
[54] However, if the plaintiffs’ claims fall within the parameters of GECA, and they are entitled to compensation pursuant to that Act, then the compensation would be payable out of the Consolidated Revenue Fund. It would then remain to be determined whether the plaintiffs’ claims are barred on the basis of s. 9 of the CLPA. Once again, the outcome of the issue is not obvious.[^26]
[55] The amendment proposed in paragraph 29, referencing the derivative nature of the plaintiffs’ claims pursuant to s. 61 of the FLA, is allowed. There is nothing controversial about that proposed amendment. In their pleading, the plaintiffs acknowledge that their claims are advanced pursuant to Part V of the FLA.
[56] The proposed amendments with respect to the CLPA and the FLA are allowed, subject to the requirement that the defendant include, in the “General Pleadings” section of the amended pleading, the specific sections of the CLPA and the FLA upon which it relies.
[57] In summary:
The defendant is granted leave to amend its pleading to include proposed paragraphs 29 and 41(a) and (b), as set out in the draft pleading included at Tab 2 of its motion record. In the “General Pleadings” section of the amended pleading, the defendant shall include the specific sections of the CLPA and the FLA upon which it relies.
The balance of the defendant’s motion for leave to amend its pleading is dismissed.
The dismissal of the defendant’s motion for leave to amend its pleading is without prejudice to the defendant again seeking leave pursuant to rule 48.04 of the Rules of Civil Procedure to bring a motion for leave to amend its pleading to address the GECA.
If the defendant seeks and is granted leave to bring a motion for leave to further amend its pleading, it shall include in the proposed amendments the specific sections of each statute upon which it seeks to rely.
Issue No. 2: Motion for Summary Judgment
[58] The proposed motion for summary judgment is based on amendments to the statement of defence which the defendant has not been granted leave to make. As a result, there is no basis for the motion for summary judgment. The defendant’s motion for leave to bring a motion for summary judgment is therefore dismissed.
[59] Given the proximity to the trial date of the defendant’s motion, pursuant to rule 48.04, it is in my view important for the parties to know that, had I granted the balance of the defendant’s motion for leave to amend its pleading, I would not have granted leave to bring a motion for summary judgment. One of the reasons why I would not have done so is because of the lack of evidence in support of the stated belief of counsel for the defendant that a motion for summary judgment is the “most just, expeditious, and least expensive” manner in which to determine the action.
[60] There has, since the decision of the Supreme Court of Canada in Hryniak v. Mauldin,[^27] been a proliferation of motions for summary judgment. Such motions are frequently brought well before an action is set down for trial. Other motions for summary judgment are, like the one proposed by the defendant in the matter before me, pursued after an action has been set down for trial.
[61] The test to be met on a motion for leave to bring a motion for summary judgment, after an action has been set down for trial, has become more pragmatic over time. In Fruitland Juices Inc. v. Custom Farm Service Inc.,[^28] Quinn J. highlighted the benefits of summary judgment motions for the administration of justice. He found that the timing of a motion for summary judgment is not relevant, “[s]o long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial”.[^29] He also determined that there is no particular threshold to be met regarding the merits of the proposed motion.[^30]
[62] Fruitland was decided prior to the decision of the Supreme Court of Canada in Hryniak. Given the culture shift discussed in Hryniak, it is not surprising that the test established in Fruitland has been applied in cases decided subsequent to Hryniak.[^31]
[63] The cost-effectiveness of a motion for summary judgment versus the trial of an action may be more obvious in some cases than in others. Regardless, for a judge or master to determine a motion pursuant to rule 48.04 for leave to bring a motion for summary judgment, it is in my view incumbent upon the moving party to provide the court with evidence addressing the anticipated costs of the proposed motion for summary judgment and comparing those costs to the anticipated costs of the trial. The evidence with respect to costs may be qualitative or quantitative or both.
[64] The costs associated with a motion for summary judgment are frequently in the tens of thousands of dollars. In large and complex litigation the costs of a summary judgment motion can reach six-figures. Over and above those amounts are the costs of an appeal, if pursued, from a decision on a motion for summary judgment.
[65] How do the costs associated with the preparation of supporting affidavits, cross-examinations, transcripts, legal research, preparation of facta, preparation for the hearing, and attendance to argue the proposed motion for summary judgment compare to the costs associated with a trial of the action? In the absence of evidence in that regard, it is difficult to make a finding as to the cost-effectiveness of a motion for summary judgment over a trial of the action.
[66] Had I been required to decide this issue, I would have found that the evidence relied on by the defendant is insufficient to support a finding that the proposed motion for summary judgment would be more cost-effective than a ten-day trial.
Summary
[67] For the reasons set out above, I order as follows:
The motion by the defendant for leave to initiate a motion for leave to amend its statement of defence is granted.
The defendant is granted leave to amend its pleading to include proposed paragraphs 29 and 41(a) and (b), as set out in the draft pleading included at Tab 2 of the defendant’s motion record. In the “General Pleadings” section of the amended pleading, the defendant shall include the specific sections of the Crown Liabilities Proceeding Act, R.S.C. 1985, c. C-50 and the Family Law Act, R.S.O. 1990, c. F.3 upon which it relies.
The balance of the defendant’s motion for leave to amend its pleading is dismissed.
The dismissal of the defendant’s motion for leave to amend its pleading is without prejudice to the defendant again seeking leave pursuant to rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to bring a motion for leave to further amend its pleading to address the Government Employees Compensation Act, R.S.C. 1985, c. G-5.
If the defendant seeks and is granted leave to bring a motion for leave to further amend its pleading, it shall include in the proposed amendments the specific sections of each statute upon which it seeks to rely.
The motion by the defendant for leave to bring a motion for summary judgment is dismissed.
The motion by the defendant for an adjournment of the trial pending disposition of the summary judgment motion is dismissed.
[68] The trial of the action is scheduled to commence approximately 2.5 months subsequent to the date of this endorsement. In granting leave to the defendant to amend its pleading as set out above, it is not my intention that the commencement of the trial is delayed in any way. It is important that the defendant’s pleading is amended and the exchange of pleadings thereafter is completed in a timely manner.
[69] It is also important that further examinations for discovery, if any, arising from the amended statement of defence and reply to same are completed in a timely manner.
[70] For those reasons, I include the following deadlines in my order:
The defendant shall no later than November 4, 2016 take the steps necessary to amend its statement of defence and serve the amended pleading on the plaintiffs.
The plaintiffs shall serve their reply, if any, to the amended statement of defence in accordance with rule 25.04(3) of the Rules of Civil Procedure.
Examinations for discovery, if any, arising from the amendments to the statement of defence or from the reply, the latter if any, shall be conducted no later than December 2, 2016.
Costs
[71] In the event the parties are unable to agree upon costs of the defendant’s motions, they may make written submissions as follows:
a) The submissions shall be limited to a maximum of five pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure including that they shall be double-spaced and in the requisite font size;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall be in the requisite font size;
d) Submissions, bills of costs, and case law or other authorities shall be single-sided; and
e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.
Madam Justice Sylvia Corthorn
Date: October 24, 2016
CITATION: Villeneuve v. A.G. Canada, 2016 ONSC 6490
COURT FILE NO.: CV-10-0182-00
DATE: 2016/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JODY VILLENEUVE and
MADISON ASHLEY VILLENEUVE BY HER LITIGATION GAURDIAN JODY VILLENEUVE
Plaintiffs
AND
ATTORNEY GENERAL OF CANADA
Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Joel Levine, for the defendant
(moving party)
Christopher Robertson, for the plaintiffs (responding parties)
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: October 24, 2016
[^1]: R.S.O. 1990, c. F.3. [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 48.04(1). [^3]: (2003), 2003 64295 (ON SC), 66 O.R. (3d) 74. [^4]: Plante, at para. 34. [^5]: Plante, at para. 37. [^6]: Plante, at para. 21, citing Mota v. Hamilton Wentworth Police Services Board (2003), 2003 47526 (ON CA), 63 O.R. (3d) 737 (C.A.) and Atlantic Steel Industries Inc. v. CIGNA Insurance of Canada (1997), 1997 12125 (ON SC), 33 O.R. (3d) 12 (Gen. Div.). [^7]: See Article 18.01 of the Collective Agreement. [^8]: See Article 20.02 of the Collective Agreement. [^9]: PSLRA, s. 236(2). [^10]: 1995 108 (SCC), [1995] 2 S.C.R. 929, per McLachlin J. [^11]: See Gaignard v. Canada (A.G.) (2003), 2003 40299 (ON CA), 67 O.R. (3d) 611 (C.A.) [Gaignard, C.A.], at paras. 16 - 18, per Goudge J.A., summarizing Weber, supra, at paras. 49, 52, and 57. [^12]: R.S.C. 1985, c. P-35, ss. 91 - 92 [PSSRA]. [^13]: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146. [^14]: Andrews v. Air Canada, 2008 ONCA 37, 88 O.R. (3d) 561. [^15]: Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626 (C.A.). [^16]: Gaignard v. Canada (A.G.) (2002), 2002 11495 (ON SC), 218 D.L.R. (4th) 562 (Ont. S.C.), aff’d Gaignard, C.A., supra. [^17]: Bron v. Canada (A.G.), 2010 ONCA 71, 99 O.R. (3d) 749. Note: This is the only case cited by the defendant in which consideration is given to the relevant provisions of the PSLRA instead of to its predecessor legislation, the PSSRA. At para. 20 of its decision, the Court of Appeal highlights that s. 236 of the PSLRA has no counterpart in the predecessor legislation. [^18]: R.S.C. 1985, c. G-5. [^19]: Gaignard, C.A., at paras. 20 - 21. [^20]: See Article 20.01(a) of the Collective Agreement. [^21]: R.S.C. 1985, c. C-50. [^22]: R.S.C. 1985, c. G-5. [^23]: GECA, s. 4(1) - (2). [^24]: GECA, s. 4(6). [^25]: 2009 PSLRB 70, at para. 50. [^26]: The October 11, 2016 decision of Justice Kershman in O’Farrell v. Canada (A.G.), 2016 ONSC 6342, includes a detailed review of cases in which s. 9 of the CLPA has been found to preclude a right of action and those in which it has not been so found. [^27]: 2014 SCC 7, [2014] 1 S.C.R. 87. [^28]: 2012 ONSC 4902, 112 O.R. (3d) 453. [^29]: Fruitland, at para. 28. [^30]: Ibid., n. 3. [^31]: See, for example, Asa v. Sacks, 2014 ONSC 4443.