Court File and Parties

Court File No.: CV-10-431-SR Date: 2017-04-11 Superior Court of Justice - Ontario

Re: Reginald Cyr and Linda Cyr, Plaintiffs And: The Cataraqui Cemetery Company, Defendant

Before: Mr. Justice Graeme Mew

Counsel: Andrew Lister, for the Plaintiffs Michael D. Swindley, for the Defendant

Heard: 10 April 2017, at Kingston

Endorsement

[1] On the sixth and penultimate day of the trial of two simplified rules actions, Reginald Cyr and Linda Cyr sought leave to amend their statement of claim in one of those actions.

[2] Both actions arise from the acquisition by the Cyrs of certain rights to the use of grave spaces and a garden area in the Cataraqui Cemetery in Kingston and from issues arising from the time that they were trustees and officers of the defendant.

[3] The proposed amendments seek to add claims of punitive damages in the amount of $10,000 and aggravated damages in a similar amount. The existing relief sought in the action is declaratory in nature.

[4] The other action being tried is between the same parties. However, in that proceeding, bearing court file number CV–10–403–SR, Cataraqui is the plaintiff and the Cyrs are the defendants. In that action, Cataraqui claims damages for personal and allegedly unauthorised benefits said to have been obtained or received by the Cyrs while they were trustees of the Company.

[5] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

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.

[6] The proposed amended statement of claim includes not only the additional relief indicated above but, also, particulars supporting the claims for punitive and aggravated damages.

[7] The Cyrs say that it was only during the course of evidence given on the fourth day of trial by Graeme Ross, an accountant called by Cataraqui, that the true nature and extent of the instructions given by the defendant’s representatives - in essence to come up with a report that would bring about the resignation of the Cyrs as trustees - became apparent.

[8] Cataraqui opposes the motion. Its principal ground for doing so is that the proposed amendments are statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4. It argues that at this late stage of the proceedings, the Cyrs are now seeking to add claims for damages based on facts which were known to the Cyrs as long ago as 2010, and in any event more than two years ago.

[9] The addition of new heads of damages to an action which was started within the applicable limitation period will be permitted if the facts as already pleaded can support the additional relief sought by the amendment: Casey v Halton Board of Education (1991), 2012 ONSC 5455, 112 O.R. (3d) 620 (S.C.J.); Dee Ferraro Ltd. v Pellizzari (2012), 2012 ONCA 55, 346 D.L.R. (4th) 624 (ON CA).

[10] Furthermore, proposed amendments which do not change the factual matrix, even though they contain additional particulars of causes of action already pleaded, may also be permitted: Silveira v York (Regional Municipality), 2010 ONSC 969.

[11] The particulars pleaded by the Cyrs in support of the proposed amended claims for punitive and aggravated damages make reference to the allegedly reprehensible conduct of Cataraqui; to the defendant’s threat to disturb the resting place of the Cyrs’ family members; to the trumping up of additional charges against them; to the advancement of meritless claims against the Cyrs; and, to the arbitrary application of the Cemetery’s bylaws and policies in a manner detrimental to the Cyrs.

[12] Even a cursory review of the existing (unamended) pleadings in this action discloses similar allegations. For example, reference is made in the statement of claim to Cataraqui notifying the Cyrs of its intention to repossess the interment rights and portions of the plot area owned by the Cyrs. The reply filed by the Cyrs describes Cataraqui’s allegations of self-dealing and wilful concealment as “false, malicious, vindictive”. Indeed, paragraph 61 of the reply encapsulates most, if not all, of the issues between the parties, as seen from the perspective of the Cyrs:

The entirety of the allegations as made against the Cyrs are baseless and malicious. As a result, the Cyrs are no longer Trustees nor Officers of the Cemetery which roles they have served faithfully and to the benefit of the Cemetery. They have been left in a situation where they are concerned that family members and loved ones may be dislocated from their resting places and that there long-term family plans for a common burial area and garden may have been irreparably damaged.

[13] In my view, paragraphs 37 to 39 of the proposed amended statement of claim are embellishments on facts already pleaded. The proposed amendments do not fundamentally change the nature of the action.

[14] An analogous scenario arose in Shubaly v Coachman Insurance (2012), 2012 ONSC 5455, 112 O.R. (3d) 620 (S.C.J.). In that case, insureds were given leave to amend their statement of claim, notwithstanding the expiry of the limitation period, to advance a claim that their homeowners’ insurer had breached its duty of good faith, and to add claims for punitive, aggravated and exemplary damages. Shaw J. observed that the insurer had been put on notice by the existing pleadings that the manner in which it handled the plaintiff’s claim under its policy of insurance was a central issue.

[15] In the present case, there is nothing genuinely new which is raised by the proposed amendments, and nothing which, in my view, would take Cataraqui by surprise or prejudice Cataraqui’s ability to defend the Cyrs’ claims, as amended.

[16] The motion to amend is therefore granted.

[17] Any issues of costs arising from this motion should be addressed following the completion of the trial.

Mew J Date: 11 April 2017