CITATION: Schellings v. DTE Industries Limited, 2016 ONSC 687
COURT FILE NO.: 12-55685
DATE: 2016/01/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT SCHELLINGS and CATHERINE SCHELLINGS, Plaintiffs
AND
DTE INDUSTRIES LIMITED and W.O. STINSON & SON LIMITED, Defendants
BEFORE: Aitken J.
COUNSEL: Pierre Champagne and Julie Paquette, Counsel for the Defendant, W.O. Stinson & Son Limited
Shane D’Souza and Jagtaran Singh, Counsel for the Plaintiffs
HEARD: January 27, 2016 (at Ottawa)
ENDORSEMENT
Nature of Motion
[1] The Defendant, W.O. Stinson & Son Limited (“Stinson”), seeks leave to appeal to the Divisional Court from the order of Roger, J., dated October 21, 2015. The order of Roger J. granted the Plaintiffs (the “Schellings”) leave to amend their Statement of Claim and required Stinson to answer questions improperly refused at the examination for discovery of its representative.
[2] The grounds for Stinson’s motion are that there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 62.02(4)(b)).
Background Facts
[3] The action arises as a result of an oil leak at the Schellings’ property on June 1, 2011. The oil leaked onto the Schellings’ property from a tank that had been manufactured by the Defendant, DTE Industries Limited (“DTE”), and installed on the Schellings’ property and serviced periodically by Stinson. The action was commenced by Statement of Claim on October 5, 2012. The initial claim against Stinson was for negligence and breach of contract in relation to the installation, inspection, and servicing of the oil tank as well as the supply of oil to the tank. The initial Statement of Claim did not specifically state that Stinson had sold the oil tank to the Schellings in 2002 and did not specifically allege that Stinson contravened the Sale of Goods Act, R.S.O. 1990, c. S-1, s. 2 (Sale of Goods Act).
[4] On June 5, 2015, the Schellings served a Notice of Motion seeking leave to amend their Statement of Claim to advance allegations against Stinson relating to its sale of the tank to the Schellings. The Schellings argued that the proposed amendments to the Statement of Claim were part of the factual matrix already pleaded in the original Statement of Claim or, alternatively, that if any amendment pleaded new facts or new claims, they were not discoverable prior to the examination for discovery of a representative of Stinson. Stinson argued that the proposed amendments constituted a new cause of action for breach of the Sale of Goods Act, and that the Plaintiffs were seeking to add this new cause of action after the expiry of the limitation period.
Analysis
Is there good reason to doubt the correctness of the decision?
[5] The test for granting leave to appeal an interlocutory order is an onerous one (Sutherland v. Via Rail Canada Inc., 2012 ONSC 6014 (Div. Ct.), at para. 4). The court will not grant leave where the decision sought to be appealed is well-reasoned and the correct principles have been applied (Bell Expressvu Limited Partnership v. Morgan (2008), 2008 CanLII 63136 (ON SCDC), 67 C.P.C. (6th) 263 (Ont. Div. Ct.), at para. 2). For there to be “good reason to doubt the correctness of the decision”, the decision must be open to serious debate that warrants resolution by a higher level of court (Sutherland, at para. 4; Judson v. Mitchele, 2011 ONSC 6004, 108 O.R. (3d) 129, at para. 15; and Brownhall v. Canada (Minister of Defence) (2006), 2006 CanLII 7505 (ON SC), 80 O.R. (3d) 91 (S.C.), at para. 30).
Amendment to Statement of Claim
[6] Under r. 26.01 of the Rules of Civil Procedure:
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.
[7] This provision is mandatory. As long as the amendment can be made without causing injustice to the other party that could not be compensated for by costs or an adjournment, leave should be granted regardless of when the request to amend is made. Pleading a new cause of action after the expiry of a limitation period gives rise to a presumption of prejudice resulting from the loss of the limitation period. The onus regarding prejudice then shifts to the moving party to show that the new cause of action could not have been discovered before a date that would mean that the limitation period had not expired. See Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.).
[8] The motions judge went on to explain that a new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded, give rise to different legal conclusions from those facts, provide particulars of earlier allegations already pled, or provide additional facts upon which the original right of action is based (Ascent Inc. v. Fox 40 International Inc., 2009 CanLII 36994 (Ont. S.C.), at para. 3; 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505, 107 O.R. (3d) 384, at paras. 20, 26-28).
[9] Stinson takes no dispute with the summary of the law provided by the motions judge.
[10] The motions judge provided a careful analysis as to the underlying factual matrix and the claims contained in the existing Statement of Claim before concluding that no new cause of action was being pleaded that would impact a limitation period. His conclusion is in keeping with the decision of Healey J. in Muskoka Fuels v. Hassan Steel Fabricators Limited (2009), 67 B.L.R. (4th) 203 (Ont. S.C.), aff’d 2011 ONCA 355, an action between a distributor of fuel storage tanks and the manufacturer of such tanks, where similar issues to those on this motion were considered.
[11] Paragraph 6 of the Schellings’ original Statement of Claim stated: “In approximately June of 2002, Stinson installed at the Property outside the Plaintiffs’ house a new oil tank (“Tank”), which had been purchased from DTE.” Although this line does not specifically state that Stinson had purchased the tank or had supplied the tank that was installed, this is one interpretation of the sentence. In para. 6 of its Statement of Defence, Stinson stated: “In 2002, Stinson purchased a new ULC approved oil tank from DTE and installed it at the Plaintiffs’ property”. Therefore, there was no confusion or uncertainty about this factual issue. On the contrary, Stinson admitted it and, in its Statement of Defence, relied on the Sale of Goods Act. This undisputed fact is relevant to, and helps to underpin, the Schellings’ claim under that same Act.
[12] Additionally, as noted by the motions judge, at para. 15(x) of the original Statement of Claim, the Schellings alleged that Stinson failed to warn them of the risks related to the tank and the risk of buildup of water in the tank. Most of the amendments that the Schellings seek to make to the Statement of Claim relate to Stinson’s failure to warn them of risks associated with the tank. It cannot be argued and, in fairness to Stinson, it is not arguing, that those amendments add any new cause of action. But also inherent in the allegation in para. 15(x) of the original Statement of Claim is the assertion that Stinson was aware of certain potential defects with the tank and the possibility that it was not up to the task for which it was being installed, and Stinson failed to warn the Schellings about those potential defects. This, as well, challenges Stinson’s argument that no material facts were pled in the original Statement of Claim that would support a claim under the Sale of Goods Act.
[13] These material facts in the original Statement of Claim distinguish this case from McVie v. Lombard Insurance Co., 2010 BCSC 1025, 93 C.L.R. (3d) 231 on which Stinson heavily relies on this leave motion.
[14] I am unable to conclude that the issue of whether the Schellings were entitled to amend their pleadings was open to serious debate justifying referral to a higher court. But even if it were, as explained below, the proposed appeal would not have raised issues of general importance.
Refusals
[15] No issue was raised as to the motions judge’s summary of the relevant rules and legal principles applying to the requirement of answering questions on discovery. In the original pleading, the Schellings alleged that Stinson failed to warn them of risks relating to the tank, of which Stinson was aware. The questions objected to by Stinson were aimed at eliciting evidence as to the knowledge of those risks that Stinson would have had prior to installing the tank and immediately prior to the leak. I have not been provided with any good reason to doubt the correctness of the motions judge’s rulings.
Does the proposed appeal raise matters of general importance?
[16] In order to show that a matter is of general importance, the moving party must show that the matter is of importance to the public, to the development of the law, or to the administration of justice, and that the general importance of the issue transcends its importance to the particular litigants in the case (Judson, at para. 16; Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.), at para. 7).
[17] The issues on this proposed appeal are not matters of sufficient importance that leave to appeal ought to be granted. No general legal principles are in dispute in regard to either issue that Stinson wishes to pursue on appeal. Both parties are satisfied with the summary of the law provided by the motions judge. This leaves for consideration the application of those legal principles to the facts in this case. The motions judge gave careful consideration to those facts and explained the reasons for deciding as he did. In regard to the amendment of pleadings, the conclusion of the motions judge was specific to the wording of the pleadings before him. In regard to the refusal issue, the motions judge decided only whether the documents sought were relevant to this proceeding and were capable of production without undue hardship to Stinson – a determination that is limited to the facts of this case.
[18] While the amendment of pleadings and scope of production are of importance to the immediate parties, the proposed appeal does not raise any issue of general importance that warrants the attention of an appellate court.
Aitken J.
Date: January 29, 2016
CITATION: Schellings v. DTE Industries Limited, 2016 ONSC 687
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ROBERT SCHELLINGS and CATHERINE SCHELLINGS, Plaintiffs
AND
DTE INDUSTRIES LIMITED and W.O. STINSON & SON LIMITED, Defendants
BEFORE: Aitken J.
COUNSEL: Pierre Champagne and Julie Paquette, Counsel for the Defendant, W.O. Stinson & Son Limited
Shane D’Souza and Jagtaran Singh, Counsel, for the Plaintiffs
ENDORSEMENT
Aitken J.
Released: January 29, 2016