CITATION: Lue v. TD Bank Financial Group, 2016 ONSC 6710

COURT FILE NO.: 08-CV-348612PD2

DATE: 20161125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Lue, Plaintiff

AND:

TD Bank Financial Group, Defendant

BEFORE: Stewart J.

COUNSEL: Hugh R. Scher, for the Plaintiff

Daniel A. Fiorita, for the Defendant

HEARD: October 5, 2016

ENDORSEMENT

[1] The Plaintiff Richard Lue moves for leave to amend his Statement of Claim and to conduct further discovery of the Defendant TD Bank Financial Group.

[2] The proposed amendments are lengthy. The facts sought to be alleged are designed to support a claim for punitive and aggravated damages.

[3] TD opposes Lue’s motion and argues that he has not sought leave to bring this motion as required by Rule 48.04, and such request should be denied. Further, TD argues that the proposed amendments constitute raising a new cause of action which is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Background

[4] This action arises from injuries allegedly sustained by Lue more than 10 years ago on February 27, 2006 when he was employed by TD.

[5] On February 8 2008, Lue issued his Statement of Claim.

[6] On March 17 2010, TD served and filed its Statement of Defence.

[7] On March 18 2011, Lue served and filed a Trial Record.

[8] On March 19 2013, Lue amended his Statement of Claim to increase the damages sought by him from $1,000,000 to $9,000,000.

[9] On March 28 2014, the parties attended a pre-trial conference before Wilkins, J. The trial of the action was fixed to proceed on June 2, 2014.

[10] On May 6 2014, Lue requested an adjournment of the June 2, 2014 trial. TD agreed to Lue’s request for an adjournment, subject to certain conditions.

[11] On May 15, 2014, a copy of a Human Resources Development Canada Schedule 1 Form (the Accident Investigation Report) filed with HRDC by TD following the incident giving rise to this action was obtained by Lue’s counsel as a result of a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter F.31. This document had not been produced by TD during the litigation up to this point.

[12] The Accident Investigation Report describes the accident and lists the names of persons who were believed to have witnessed it.

[13] On May 27 2014, Lue’s claims proceeded to an attempted mediation. At the mediation, both Lue and his counsel had a copy of the Accident Investigation Report. Mediation failed and the claim did not settle.

[14] On June 4, 2014, the action was fixed for trial on April 18, 2016.

[15] In late 2014, Lue terminated his relationship with his then counsel, Howie Sacks Henry LLP, and appointed Benson Percival as new counsel.

[16] On March 22, 2016, the parties attended a further pre-trial conference before Wilson J. At this time, Lue reported another breakdown in his relationship with counsel. Benson Percival brought a motion to be removed as counsel and the order was granted. This development resulted in a further adjournment of the trial.

[17] The action is now fixed for trial on January 30, 2017. It is a jury trial, expected to take six weeks to be heard.

[18] Lue now claims that the failure of TD to produce this Accident Investigation Report earlier in the proceedings has caused him to question the good faith and fair dealing by TD in responding to the workplace accident in which he was allegedly injured.

[19] Lue seeks leave to amend his original Amended Statement of Claim to pursue a claim for aggravated and punitive damages as a result of this alleged deceitful conduct and bad faith on the part of TD and alleged breaches of the Canada Labour Code and Regulations by it.

[20] Lue also seeks a timetable for further discovery of TD if the amendments are allowed.

Law and Discussion

[21] Should leave to amend the Statement of Claim be granted and, if so, should the amendments be allowed?

[22] Rule 26.01 of the Rules of Civil Procedure provides that at any stage of an action leave shall be granted 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.

[23] Leave to amend will be granted, even on the eve of trial, where the opposing party has failed to demonstrate non-compensable prejudice as a result of the amendment (see: Plante v. Industrial Alliance Life Insurance, 2003 Carswell Ont. 2961; Halls Contracting v. Towland-Hewstson Construction Ltd., 1996 Carswell Ont. 643).

[24] Because Lue served and filed the Trial Record on March 18, 2011, leave under Rule 48.04 is required before the relief sought by him on the motion may be considered. TD argues that Lue has not formally included in his motion a request for such leave, and this motion therefore should be dismissed on that basis alone.

[25] In my view, TD’s approach is overly technical in these circumstances. Accordingly, I am prepared to treat this motion as one for which leave has been sought under Rule 48.04.

[26] TD submits that the court should deny any leave to bring this motion. The test for leave includes a variety of factors including what the party knew and whether there has been any substantial or unexpected change in the circumstances since the action was set down for trial.

[27] TD submits that Lue knew, or ought to have known, all of the relevant facts related to this proposed motion for leave to amend prior to each of the three times that he requested and/or consented to this matter being listed for trial. The pre-trial memos filed by Lue certified that the pleadings were in order and that examinations were complete. TD argues that there has been no substantial or unexpected change in the circumstances.

[28] I agree that Lue must be held to have known of the alleged conduct related to the Accident Investigation Report by at least May 15, 2014, when his counsel received a copy of the report from HRDC. Newly appointed counsel now wishes to seek punitive damages based upon additional allegations.

[29] Although much time has passed and witnesses are getting older, no actual prejudice has been identified by TD if the leave and amendments sought are granted.

[30] In Tolbend Construction Ltd. v. Freure Homes Ltd. [1984] O.J. No. 2425, the plaintiff’s request to amend a pleading was denied. The Court observed that the Rules do not require the Court to accede to every change of counsel’s views about the proper course or conduct of the case.

[31] This principle was also articulated in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740. It was noted that the signing of a Certificate of Readiness for Trial is a very serious matter and there must be substantial and unexpected changes in the circumstances to justify an amendment after such certification.

[32] However, I note that Lue’s counsel became involved after the certification of readiness for trial had been provided. Given the nature of these allegations, the claim itself and Rule 26.01, I am prepared to accept that the requisite change in circumstances has been demonstrated here such that leave to bring the motion should be granted. I am prepared to view the discovery of the potential legal implications of the facts pleaded to be sufficiently substantial and unexpected to justify granting leave to bring this motion.

[33] TD further argues that the proposed amendments constitute a new cause of action which is barred by the Limitations Act, 2002. As such, TD submits that leave to amend should not be granted, since the expiry of a limitation period necessarily results in a presumption of prejudice that cannot be compensated for by costs or an adjournment (Frohlick v. Prakerton Canada Ltd. (2008) O.R. (3d)).

[34] As stated, this action is one for damages for negligence causing personal injury as the result of an alleged workplace injury sustained by Lue on February 27, 2006. The issues of liability involve an exploration of how the accident happened, what training was provided to Lue prior to the accident, what steps were taken by TD to avoid such injuries.

[35] Although the proposed amendments are lengthy, when examined and distilled they merely allege certain violations by TD of the Canada Labour Code and the Regulations thereunder with respect to the occurrence of the alleged accident and the reporting of it to regulatory authorities, and “breach of good faith” and “unfair dealing” by TD as a result of its failure to produce the Accident Information Report earlier in the proceedings.

[36] Although TD argues that these new allegations speak to separate and distinct alleged conduct that constitutes a new cause of action, I do not view the allegations as actually raising any new cause of action.

[37] In my view, these amendments do not amount to a fundamentally different claim. They are merely new legal characterizations of the claims that were alleged in the Amended Statement of Claim and arise out of the same factual nexus (see: 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848). Whether or not they can ever be proven or will actually succeed in establishing any entitlement to punitive damages will be for the trial judge to determine.

[38] The principal present concern is to ensure that the fixed date for trial of this action is not disturbed by permitting these amendments so as to result in significant further delay. Counsel for Lue confirmed that he is not seeking, and would not seek, any adjournment of the trial.

[39] As a condition of granting leave to make these amendments, Lue is to be bound by the statement of his counsel and shall not seek any adjournment of the trial for reasons related to them.

[40] Accordingly, leave to amend the Amended Statement of Claim as requested is granted. The Fresh as Amended pleading shall be served immediately. TD shall then have 15 days from such service to deliver its Amended Statement of Defence.

[41] Unless the parties agree otherwise, there will be no further oral examinations for discovery of either party permitted. Any further examination for discovery shall be by way of brief written interrogatories, to be conducted on a timetable to be agreed upon by the parties and completed by no later than January 13, 2017. If that timetable cannot be agreed upon by December 2, 2016, I will set one.

[42] There shall be no further motions arising out of any written interrogatories without leave of the court.

[43] TD shall remain at liberty to seek an adjournment of the trial in Civil Practice Court if it so elects. I observe that I expect this should not be necessary.

Costs

[44] If any party is seeking costs of this motion, submissions in writing shall be delivered by Lue within 10 days of the date of release of this endorsement, and by TD 10 days thereafter.

Stewart J.

Date: November 25, 2016