Court File and Parties

COURT FILE NO.: CV-09-385319 DATE: 201701 25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hampton Securities Limited, Plaintiff AND: Christina Nicole (Niki) Dean, Defendant

BEFORE: Stewart J.

COUNSEL: David Barbaree, for the Plaintiff Chris Somerville, for the Defendant

HEARD: December 8, 2016

Endorsement

[1] The only issues on this motion are whether leave to amend the Amended Defence and Counterclaim of the Defendant Christina Nicole Dean (“Dean”) should be granted under Rule 26.01 and, if so, on what terms.

[2] The Plaintiff Hampton Securities Limited (“Hampton”) resists any amendment of Dean’s Defence and Counterclaim at this stage as the trial of the action is scheduled to begin on March 13, 2017. The Plaintiff says that the amendments constitute an abuse of process and that the granting of any amendments at this point will necessarily delay the final adjudication of this long-standing dispute. They also argue that the unpaid wages claim is a new cause of action barred by the applicable limitation period.

[3] Rule 26.01 provides that leave to amend a pleading shall be granted on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment, or both.

[4] Generally, and in the absence of non-compensable prejudice, leave to amend pleadings must be granted. The burden of showing such non-compensable prejudice lies with the party opposing the amendment. Non-compensable prejudice is presumed when an amendment seeks to add a new cause of action after the expiry of the applicable limitation period.

[5] On August 19, 2009, Hampton issued its Statement of Claim against Dean. Hampton claimed that it had employed Dean as a securities trader and that she breached her employment contract by refusing to pay for alleged trading losses as agreed. As a result, Hampton sought $34,917.32 in damages. Due to the amount claimed, Hampton commenced its action under the Simplified Procedure established by Rule 76.

[6] On September 22, 2009, Dean served her Statement of Defence and Counterclaim. She claimed that Hampton had constructively dismissed her and sought vacation pay, pay in lieu of notice of dismissal, damages for defamation and punitive damages totaling $50,000.00. In her Counterclaim, Dean pleads and relies upon the provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended.

[7] On October 29, 2009, with the consent of Hampton, Dean served an Amended Statement of Defence and Counterclaim which asserted a claim against Hampton for intentional interference with economic relations and increased the total damages sought by her to $175,000.

[8] On January 29, 2010, Hampton served its Statement of Defence to the Amended Counterclaim. Hampton raised no objection to the fact that the amount sought in Dean’s Amended Counterclaim exceeded the Rule 76 limit.

[9] By letter to Dean’s counsel dated January 31, 2011, Hampton sought to confirm that the action would continue under the Simplified Procedure even though Dean had counterclaimed above the monetary limit under Rule 76. Dean agreed.

[10] During the examinations for discovery, it was again confirmed by the parties that the main action and trial of the counterclaim would proceed under the Simplified Procedure notwithstanding that the amount sought in Dean’s Amended Counterclaim exceeded $100,000.

[11] Examinations for discovery were completed on September 14, 2012. The parties attempted to set this matter down for trial on August 27, 2013.

[12] On November 28, 2013, the parties attended a mediation, at which time counsel for Dean indicated to counsel for Hampton that Dean intended to bring a motion to amend her Amended Counterclaim in order to add a claim for unpaid wages. No motion to amend Dean’s pleading was brought.

[13] Due to a deficiency in the trial certification form, the trial coordinator struck the action and counterclaim from the trial list. Upon discovering this fact, both parties agreed to restore the action to the trial list. A pre-trial was scheduled for September 28, 2015, and a five day trial was scheduled to begin on November 16, 2015.

[14] At the scheduled pre-trial, Dean’s counsel requested an adjournment of the scheduled trial date in order to bring a motion to amend its pleading. Further to a history of cooperation between counsel on this matter, Hampton took no position on the motion. The Court allowed Dean’s request and re-scheduled the trial to begin on May 9, 2016.

[15] No motion to amend was brought between September 28, 2015 and May 9, 2016. Dean’s counsel requested yet another adjournment of the trial date on April 18, 2016 at a To Be Spoken To appearance. Counsel for Dean indicated that she was leaving the practice of law and could no longer represent Dean. Hampton consented to this adjournment. The trial was rescheduled to begin on November 21, 2016.

[16] On September 29, 2016, Hampton received Dean’s answers to undertakings which included an answer to an undertaking to provide itemized details with respect to the damages claimed in the Amended Counterclaim. The answer included claims for losses with respect to unpaid wages, loss of reputation, loss of income after 2012 and emotional distress and disclosed a significantly increased amount of damages.

[17] On October 19, 2016, several proposed amendments to Dean’s Statement of Defence and Counterclaim were served by Dean on counsel for Hampton. These proposed amendments included the following:

(a) claims that certain statements made by Hampton were false and impaired Dean’s ability to make advancements in the financial services industry; (b) additional relief in connection with Dean’s claim for defamation in the form of a mandatory order that Hampton correct statements it allegedly made regarding Dean’s dismissal; (c) particularization of the quantum of damages claimed to have resulted from claims pleaded; and (d) a claim for unpaid wages pursuant to the Employment Standards Act.

[18] Dean’s proposed amendments now also include a specific defence to Hampton’s claim which alleges that Hampton relies on an interpretation of the employment contract between the parties that should not be enforced as to do so would contravene the Employment Standards Act.

[19] Hampton resists the granting of leave to make any of these amendments. Hampton argues that the increased claim for damages takes the action well out of the amount prescribed by Rule 76 and the Simplified Procedure. Granting these amendments will necessarily delay the trial of the action presently scheduled to commence in mid-March, 2017.

[20] Hampton also argues that the pleading of the Employment Standards Act defence to its claim and the increased wage claim based on it are statute-barred.

[21] Despite the arguments raised by Hampton and the various delays in the progress of the action, I am of the view that the proposed amendments should be granted.

[22] Dean’s claim for amounts owing to her pursuant provisions of the Employment Standards Act has been pleaded since Dean first served the Statement of Defence and Counterclaim on Hampton on September 22, 2009.

[23] At Dean’s examination for discovery, Hampton had an opportunity to ask for particulars regarding Dean’s claims under the Employment Standards Act but did not do so. When Hampton asked Dean for particulars of the damages she sought, Dean provided particulars of the damages she was seeking in accordance with her alleged rights under the Employment Standards Act.

[24] It is difficult for Hampton to assert any prejudice to Dean’s claim for unpaid wages under the Employment Standards Act since Hampton’s Statement of Claim puts Dean’s wages and the nature of her employment contract and compensation arrangement squarely in issue. It would be unjust to deprive Dean of the right to plead her full case.

[25] As a result, I grant leave to Dean to amend her Defence as suggested. There is no clear limitation period issue at this stage that should prevent granting leave to Dean to amend her Counterclaim as well. Hampton may plead the limitation period, if it so chooses, both to the wage claim and the relief sought in order that the trial judge may determine the validity of either or both arguments on a full record.

[26] The other concerns raised by Hampton may be addressed by the imposition of terms on the granting of leave to make the amendments and, if necessary, an order for costs thrown away in its favour as a result of the bringing of this motion and its impact on the trial process.

[27] One of the terms proposed by Hampton is an order severing the trial of its claim from the Counterclaim. This will enable the main action to proceed as scheduled March, 2017.

[28] At Hampton’s election, its claim may proceed as scheduled and the Counterclaim will be severed and scheduled to proceed on a date to be scheduled following completion of all relevant production and any further examinations for discovery. It may be that a proposal from Dean to cap her damages claim to $175,000.00 will eliminate the need for any delay in the hearing of the Counterclaim, but that determination must be at Hampton’s election. If any further direction from the court is required, I may be spoken to.

[29] If the parties cannot agree on the subject of costs, submissions may be delivered in writing within 20 days of the date of this endorsement.

Stewart J. Date: January 25, 2017