Court File and Parties

COURT FILE NO.: 12-54440 DATE: 2017/03/17 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Francine Cyr, Plaintiff/Moving Party AND: Calypso Park Inc. (Ontario Corp. Number 1756128) c.o.b as Calypso Park and Calypso Waterpark and Calypso, Defendant/Moving Party

BEFORE: Madam Justice L. Sheard

COUNSEL: Richard Auger and Hilary Chung, for the Plaintiff/Moving Party Sally Gomery and Mark Gallagher, for the Defendant/Respondent Party

HEARD: In writing

Endorsement

Madam Justice L. Sheard

Introduction

[1]

Introduction

The plaintiff seeks leave to appeal from the Order of Justice Corthorn dated December 9, 2016. In that Order, the motion judge overturned the Master’s Order of May 11, 2016 which had granted leave to the plaintiff to amend her statement of claim and ordered disclosure of the investigation file of the Technical Standards and Safety Authority (the “TSSA”) relating to investigations and regulatory hearings of the defendant respecting incidents at the defendant’s waterpark (the “Waterpark”).

2The plaintiff’s claim arises from an incident that occurred in the Waterpark in August 2010 while the plaintiff was riding the Canyon Rafting slide. The claim was issued in May 2012. Examinations for discovery took place in 2014 and the plaintiff set the action down for trial in October 2014.

3The trial had been scheduled to be heard by a judge and jury in April 2016. The trial was adjourned on consent to allow the plaintiff to move to amend her pleading. The motion judge characterized the proposed amendments under three general categories:

i. To add additional particulars of the defendant’s alleged negligence; ii. To refer to charges and convictions of the defendant under the Technical Standards and Safety Act and Regulation (S.O. 2000, c.16 and O. Reg. 221/01) (the “Act”) that occurred after August 2010 and related to incidents that occurred with respect to the Canyon Rafting slide in 2011, 2012 and 2013; and iii. To add allegations of patterns of behaviour, consistent with the negligence particularized in the statement of claim, but which made specific reference to the charges, convictions, and incidents alleged to be similar to the incident in which the plaintiff was injured.

4The plaintiff asserted that the additional particulars of alleged negligence were based upon incident reports relating to other individuals who were injured at the Waterpark in 2010 and 2011. However, the motion judge concluded that there was nothing to tie those incidents in any way to the proposed amendments. In the absence of any evidence to explain the basis to add the additional particulars, the motion judge denied the plaintiff leave to amend the claim.

5In refusing to allow these amendments, the motion judge concluded that the proposed amendments referring to incidents that occurred between 1 to 2 years after the incident involving the plaintiff did not relate to the Canyon Rafting ride. She determined that these “similar fact” allegations, intended to support the plaintiff’s negligence claim against the defendant, were neither material nor relevant to the negligence claim. Among other things, the motion judge relied upon the statement made by Murray J. in Woods v. Jackiewicz et al, 2013 ONSC 519, para 13, that: “Subsequent negligence is irrelevant to the proof of prior negligence.”

6The motion judge did not allow the third category of proposed amendments, which she concluded were intended to support a claim for punitive damages. The plaintiff had not claimed punitive damages in the prayer for relief and asserted that she could advance a claim for punitive damages without specifically pleading it. The trial judge disagreed and determined Whitten v. Pilot Insurance Co., [2002] SCC 18, made it clear that punitive damages must be expressly pleaded.

Test for Leave to Appeal

7The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

8Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

9Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the Order is open to “very serious debate”, Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

10For the reasons set out below, the motion for leave to appeal is dismissed.

Analysis

[11]

Analysis

The moving party argues that there is reason to doubt the correctness of the Order of the motion judge in that she focused only on the timing of the similar fact evidence (after the incident involving the plaintiff) but failed to conduct “a contextual analysis and a careful consideration of the features of the proposed amendments.” The plaintiff specifically relies upon Sandhu (Litigation guardian of) v. Wellington Place Apartments, 2008 ONCA 215, [2008] O.J No. 1148 (ONCA) in which the Court cited with approval from the decision in Cominco Ltd. v. Westinghouse Canada Ltd., [1979] B.C.J. No. 1963 (BCCA).

12I conclude that those cases are distinguishable on their facts from this case.

13Unlike here, in those cases, the issue before the court was the scope of examinations for discovery, not pleadings. Also, the questions in issue related not to alleged negligent acts of the defendant but to the remedial measures taken by the defendant after the incident that gave rise to the claim. Further, in neither case did the court conclude that remedial measures taken after the incident could or were intended to be used as evidence of negligence.

14In Cominco, the court determined that questions could be asked on discovery about the defendant’s remediation following a fire for the purposes of determining the defendant’s state of mind and state of knowledge at the time of the fire that gave rise to the claim. In Sandhu, the court held that the remedial measures taken by the defendant could not be used as an admission of liability but were relevant only to the issue of the nature of the steps that could have been taken to reduce the risk of harm to the plaintiff; as evidence of what was reasonable in the circumstances; and whether the defendant had taken reasonable care.

15In her analysis, the motion judge did undertake a contextual analysis. She concluded that the events documented in TSSA files and that formed the basis of the similar fact amendments, related to a different ride than the one in which the plaintiff had been involved and occurred between one and two years after the incident giving rise to the plaintiff’s claim.

16The motion judge also reviewed the elements of negligence that the plaintiff had to prove and correctly concluded that the proposed similar fact amendments were not relevant to establishing those elements.

17The moving party also relies on Divisional Court decision in Williams v. Wai-Ping, [2005] O.J. 6186. That case is distinguishable on its facts from the case here. In Wai-Ping, the issue before the court was whether to strike the paragraphs in the amended statement of claim which contained similar fact evidence intended to establish that the defendant doctor engaged in a pattern of repetitive negligence. The Divisional Court upheld the decision of the motion judge not to strike out the similar fact paragraphs from the statement of claim. The Court quoted paragraph 17 of the motion judge’s reasons, which made it clear that the purpose of the challenged paragraphs was not to prove the defendant’s negligence by evidence of specific prior negligence. Rather, the allegations were intended “to support allegations of breach of fiduciary duty and punitive damages claimed. This is a most important distinction. ...”

18In this case, there are no allegations of breach of fiduciary duty or claims for punitive damages; the challenged paragraphs purporting to prove the defendant’s subsequent negligent acts, were intended to support the allegation that the defendant had been negligent in the earlier incident involving the plaintiff.

19In her reasons, the motion judge applied the principles applicable to similar fact evidence in Canadian law and followed the approach to proposed pleadings of similar fact evidence set out by (then) Master MacLeod in Toronto (City) v. MFP Financial Services Ltd., 2005 CarswellOnt 3324.

20I conclude that the moving party has failed to establish that there is reason to doubt the correctness of the Order in question. Furthermore, the moving party has failed to meet the second part of that two-part test by failing to advance any basis on which this Court could conclude that the proposed appeal involves matters of such importance that leave to appeal should be granted.

21With respect to the first branch of Rule 62.02(4)(a), for the reasons discussed above, I conclude that the cases referred to by the moving party cannot be seen as conflicting decisions of another judge or court in Ontario or elsewhere.

22The motion to grant leave to appeal is therefore dismissed.

[23]

Costs

The defendant/responding party is entitled to its costs of this motion. The parties did not include submissions respecting costs. If they cannot agree on costs, within 15 days of the date of the release of this decision the defendant/responding party shall serve and file its costs submissions and within 15 days thereafter the plaintiff/moving party shall serve and file her responding submissions. Submissions are not to exceed three pages in length plus Bills of Costs and any offers to settle.