Court File and Parties
COURT FILE NO.: CV-12-0312 DATE: 2017-05-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KATHERINE TANCREDI-MURPHY, on her own behalf and in her capacity as Executrix of the Estate of MICHEL MURPHY Plaintiff
Counsel: Mr. D. Bellin, for the Plaintiff
- and -
MITRUX SERVICES LTD. and VISHAL VADEHRA Defendants
Counsel: Ms. S. Smith, for the Defendant, MITRUX SERVICES LTD. and the Statutory Third Party
HEARD: April 6, 2017, at Thunder Bay, Ontario
Before: Madam Justice H.M. Pierce
Reasons on Plaintiff’s Motion to Amend Statement of Claim
Introduction
[1] The plaintiff’s husband, Michel Murphy, was driving her car when the defendant, Vadehra, lost control of his tractor-trailer and fatally injured him in a collision. The collision took place on February 20, 2011 near Marathon, Ontario. The plaintiff’s vehicle was destroyed in the collision.
[2] Because the defendant was not insured with an Ontario policy, Ms. Tancredi-Murphy applied to her insurer to be paid for her property loss. She accepted the amount tendered and was duly paid. Although it has been requested, the plaintiff has not yet produced any release she may have signed in connection with payment for her vehicle. Her insurer’s release to the subrogated insurer, I.C.B.C. is, however, in evidence.
[3] Ms. Tancredi-Murphy commenced an action against the defendants on July 25, 2012, claiming personally for loss of financial support, care, guidance and companionship, and for special damages pursuant to s. 61 (2) of the Family Law Act, R.S.O. 1990, c. F. 3, as am. In addition, she claimed exemplary and/or aggravated damages, punitive damages, and ancillary relief. Her original claim for special damages did not include a claim for damage to the vehicle.
[4] In her capacity as executrix for her husband’s estate, she also claimed damages for pain and suffering, special damages, exemplary and/or aggravated damages, punitive damages, and ancillary relief.
[5] The plaintiff now moves to amend her statement of claim to claim damages for the destruction of her vehicle, together with particulars that she says justifies an additional claim for punitive and aggravated damages with respect to the property damage.
[6] Mitrux and the statutory third party object to the amendment on the grounds that:
- a punitive damage claim is not a stand-alone claim;
- because there was originally no claim for damage to the vehicle, there is no independent, actionable wrong on which to base a claim for punitive, aggravated or exemplary damages relating to the property damage; and
- it would be an abuse of process to allow the plaintiff to claim twice for the loss of the same vehicle.
[7] The plaintiff counters that the amendments:
- do not represent a new cause of action;
- are tenable at law; and
- do not cause prejudice to the defendants.
Discussion
[8] The Rules of Civil Procedure provide wide latitude to amend pleadings at any stage of an action. Rule 26.01 requires the court to give leave to amend a pleading at any stage of an action unless the amendment causes the opposing party prejudice that cannot be compensated for by costs or an adjournment.
[9] That is not to say that every amendment will be granted. A proposed claim must be tenable as though scrutinized under Rule 21.01(1)(b) to see whether it discloses a cause of action. Necessarily, the court must consider whether the proposed amendment has any chance of success at trial (see: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2015 ONSC 4658 at para. 26).
[10] In this case, the plaintiff submits that the amendment does not expand the claim but simply adds particulars because punitive damages were sought in the original claim and the claim arises out of facts already pleaded.
[11] Further, the plaintiff argues that punitive damages may be claimed in a motor vehicle negligence case, as the Court of Appeal determined in McIntyre v. Grigg, (2006), 83 O.R. (3d) 161 at para. 62.
[12] Whether punitive damages are available in a motor vehicle action is not the point. In McIntyre, the facts of the case involved an underlying allegation of negligence. The court held that punitive damages were available upon a claim of negligence if the misconduct was extreme and deserving of condemnation and punishment (para. 62).
[13] The plaintiff in McIntyre was injured when the defendant drove while impaired. The jury awarded punitive damages. The defendant argued that there was no evidence of high-handed, malicious or oppressive conduct to support the jury’s award of punitive damages. The Court of Appeal disagreed with that submission and sustained the jury award for punitive damages, although reducing the quantum of the award (paras. 55 – 58).
[14] In my view, the plaintiff’s argument that the amendment to the claim is tenable misconstrues the structure of the action as pleaded to date.
[15] In the first instance, the plaintiff claimed for loss of care, guidance and companionship pursuant to s. 61 (2) of the Family Law Act. However, the courts have determined that punitive damages are not available in fatal accidents to augment such claims (see: Latimer v. Canadian National Railway Company, para. 10).
[16] When the statement of claim was issued on July 25, 2012, the plaintiff did not claim damages for the loss of her vehicle. In fact, she submitted a proof of loss for the vehicle to her own insurer. The defendant vehicle was insured by I.C.B.C. which is not bound by s. 263 of the Insurance Act, R.S.O. 1990, c. I.8. Consequently, her own insurer negotiated a subrogated payment with I.C.B.C. and Ms. Tancredi-Murphy was duly reimbursed for the value of her vehicle in the summer of 2011.
[17] Even if the plaintiff had not already been paid for her vehicle, a new claim for damages for its loss is now statute-barred. The plaintiff cannot now add this claim for property loss after the limitation period has run.
[18] The plaintiff submits that even though the proof of loss compensated her for the loss of her vehicle, she did not release claims for punitive damages.
[19] This argument fails for the following reasons. It is a well-established principle that punitive damages do not exist in the air. They must be tied to an independent actionable wrong. If that independent actionable wrong – property damage – does not exist, there is no basis to ground a claim for punitive or aggravated damages for the loss of the vehicle.
[20] The Court of Appeal applied this principle in Beaird v. Westinghouse Canada Incorporated. In that case, the plaintiff abandoned his claim for wrongful dismissal and settled claims for past disability and other claims before the trial finished. That left only the plaintiff’s claims for aggravated and punitive damages at trial.
[21] The Court of Appeal held that the trial judge failed to appreciate that the claim for wrongful dismissal was no longer the primary cause of action to which a separate actionable cause of action could attach. The court concluded that because there was no actionable wrong to ground claims for punitive or aggravated damages, those claims did not survive (paras. 8, 11, and 13). See also: Geographic Resources Integrated Data Solutions Ltd., paras. 40 and 52, in which the court concluded that because the defendants owed no fiduciary duty to the plaintiffs, there was no independent actionable wrong upon which to base a claim for punitive damages.
[22] In this case, punitive damages cannot attach to the Family Law claims by law and the property damage claim is statute-barred. Therefore, there is no independent actionable wrong upon which to found a claim for punitive damages in relation to the destruction of the vehicle. I therefore conclude that the proposed amendment claiming property damage and aggravated and punitive damages is not tenable.
[23] The motion to amend the statement of claim is dismissed.
Costs
[24] If the parties cannot agree upon costs, either may apply to the trial coordinator within thirty days of the release of these reasons for an appointment to argue costs, failing which costs will be deemed to be settled. Counsel have leave to appear by teleconference at the costs argument. Submissions are not to exceed five pages, exclusive of bills of costs and offers to settle.
__________“original signed by” ___ The Hon. Madam Justice H.M. Pierce
Released: May 1, 2017