Charles v. Begum, 2017 ONSC 4690

CITATION: Charles v. Begum, 2017 ONSC 4690

COURT FILE NO.: CV-16-543853

MOTION HEARD: 20170731

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jill Marie Charles, Plaintiff, Moving Party

AND:

Rahima Begum and Adbul Choudhury, Responding Party Defendants

BEFORE: Master Jolley

COUNSEL: A. Somogyi, Counsel for the Moving Party Plaintiff

S. Setrakian, Counsel for the Responding Party Defendants

HEARD: 31 July 2017

REASONS FOR DECISION

[1] The plaintiff brings a motion to amend her statement of claim to add a claim for punitive damages. She also seeks an order to compel the defendants to answer their undertakings and refusals.

[2] The defendants purported to bring a cross motion in their responding motion record for an order that the plaintiff answer her undertakings and refusals. No time was booked for that motion and no transcript of the plaintiff was filed. Therefore that motion was adjourned sine die.

Issue One: Amendment to claim punitive damages

[3] The plaintiff seeks to add one paragraph to her statement of claim, namely the addition of a claim for punitive damages to her prayer for relief as follows: “1(f) punitive damages in the amount of $150,000 for the defendants’ conduct in relation to falsifying the Lease Agreement and Lease Application”.

[4] The defendants take a number of positions with respect to this proposed amendment. First, they argue that it is barred by the Limitations Act, 2002, c.24. Second, they argue that the pleading does not disclose a cause of action. Third, they argue that no material facts are pleaded in support of this new claim so the amendment does not meet the pleadings test, even if it were not out of time.

(a) Limitations Act

[5] The parties agree that on 18 August 2014 the plaintiff was provided with the Lease Agreement and Lease Application that allegedly contained the fraudulent date alterations. The defendants argue that the plaintiff knew or with any reasonable due diligence would have known at that date of her position that the documents she signed had subsequently been altered. While the plaintiff does not necessarily disagree that she knew that the documents were altered when she received them from the defendants’ adjuster in August 2014, she takes the position that she did not know and could not have known that it was the defendants who altered the documents until she examined them for discovery. Further she argues that she was not aware that the defendants would be relying on the documents until she received the defendants’ unsworn affidavit of documents with the allegedly altered documents on 1 April 2016.

[6] Plaintiff’s counsel argued that he had to be sure that it was the defendants who altered the documents before he leveled an allegation of fraud or forgery against the defendants. On the record, it is not clear what new information the plaintiff obtained during the defendants’ examination for discovery to support this position. She knew in August 2014 that it was not her writing on the allegedly altered documents. Neither defendant admitted altering the Lease Agreement or the Loan Agreement on examination for discovery. Unlike Sawah v. Strategy Insurance Ltd. [2014] O.J. No. 784, this plaintiff did not obtain new information at the examinations for discovery that would have caused her to form the opinion that the defendants had perpetrated a fraud. The evidence was the same before the examination for discovery as after.

[7] While it may be true that the plaintiff was not sure whether the defendants would attempt to rely on the allegedly altered Lease Agreement and Loan Agreement, their intended use cannot alter the limitation period.

[8] I find that the plaintiff knew or with reasonable due diligence could have known shortly after 18 August 2014 that the Lease Agreement and the Lease Application that she signed in 2014 had been altered to make it appear that she signed them in 2013. Accordingly, her claim for damages in relation to those alleged alterations is statute barred and the motion for leave to amend the claim is dismissed.

[9] That being said, if the defendants do attempt to rely on the allegedly altered Lease Agreement and Lease Application to defend the action, the plaintiff remains at liberty to challenge the authenticity of the documents at trial and to claim solicitor and client costs or seek any other appropriate remedy if she succeeds in proving that the defendants forged the documents in an attempt to bolster their defence of this action.

(b) Alternative Arguments on the Proposed Amendment

[10] Had the cause of action been permitted to proceed, it could not have proceeded as pleaded. In order to ground a claim for punitive damages, there needs to be an independent actionable wrong (Whiten v. Pilot 2002 SCC 18, [2002] 1 S.C.R. 595 at paragraph 79) and the “facts said to justify punitive damages are to be pleaded with some particularity” (Whiten v. Pilot, supra at paragraph 87). In the proposed amended claim, no material facts were pleaded in support of any independent wrong or in justification of punitive damages. The amendment does not even allege which parts of the Lease Agreement and Lease Amendment were altered by the defendants.

Issue Two: Undertakings

Group 1 – Questions for which the defendants advised they had no documentation or information (Defendant Begum Questions 161, 175, 178, 181 and 188; Defendant Choudhury Questions 38, 254 and 261)

[11] These questions sought production of various documents such as receipts and information about other tenants. The plaintiff’s position is that the vast majority of the undertakings were not answered until she served her notice of motion. When the bulk of the undertakings were answered, the answer was consistently that the defendants did not have the documents or the information requested. (This was also the case for Begum refusal Question 70 and Choudhury refusal Questions 38 and 245 where they advised that they did not have the receipts or file and did not have the name or contact information of the owner of the next door property.)

[12] The plaintiff takes the position that those answers are not satisfactory and she is entitled to probe what efforts were made to obtain the information or documentation and why it is not available. The defendants’ position is that the undertakings have been answered, even if it is not the answer the plaintiff wishes. I agree. The plaintiff can always conduct a further examination on questions arising from the answers to those undertakings if she wishes to delve into the questions further. She can also cross examine the defendants at trial on the sufficiency of their attempts to obtain information. But for the purposes of this motion, the undertakings have been answered.

Group 2 – Undertakings Not Answered

[13] The defendant Begum had one outstanding undertaking at Question 184 which was to provide copies of the rental receipts from the premises.

[14] The defendant Choudhury had one outstanding undertaking at Question 94 which was to review his records to determine if there are any other documents related to the rental application and to provide the plaintiff with copies of those documents.

[15] The defendants shall answer those two undertakings within 30 days of this decision.

Issue Three: Refusals

(a) Refusals of the Defendant Begum

[16] Question 140 – I agree that this question was answered during the examination for discovery. Ms. Begum stated at Question 138 that she personally explained to the plaintiff that the plaintiff was responsible for keeping the area from the door to the fence clean. She was not asked when she explained this to the plaintiff so that question was not refused.

[17] Question 158 – This question was properly refused. It requires Ms. Begum to express her opinion on her liability which is both a legal question and irrelevant.

[18] Question 166 – I agree this was answered. At Question 165 Ms. Begum was asked if she specifically recalled looking at the ground and seeing if there was ice and she said yes. The explanation that followed did tend to muddy that answer but the record indicates that she specifically recalled looking at the ground.

[19] Questions 205 and 210 – Questions about handwriting – Ms. Begum was asked to comment on certain handwriting on a document and to give her opinion on whether a number “3” on that document looked more like the handwriting of her husband or the handwriting of the plaintiff. Ms. Begum’s view on these two questions is not relevant and the questions were properly refused.

[20] Question 216 was withdrawn.

(b) Refusals of the defendant Choudhury

[21] Question 38 – Mr. Choudhury has agreed to answer this Question within 30 days of this decision.

[22] Question 77 – Mr. Choudhury has agreed to take a further photograph and mark with an x where the garbage, green bin and recycling were on the date of the loss. This is without prejudice to his position that this may distort or not be exactly representative of the defendants’ evidence. If that proviso is maintained, the plaintiff may examine Mr. Choudhury under Rule 34.15(a) to answer any question arising from the marking of the photograph.

[23] Question 193 – Phone records of calls with the plaintiff. The plaintiff did not establish the relevance of telephone calls between her and Mr. Choudhury after the fall. The question was properly refused.

[24] Questions 126, 127 and 145 - Questions about handwriting – Mr. Choudhury was asked whether a certain number 3 written on a lease agreement looked more like the number 3 that he wrote on the document in another place or more like the number 3 that the plaintiff wrote in a different place on the same document. Mr. Choudhury could have been asked whether he wrote the 3 in question (and perhaps he was) but Mr. Choudhury’s opinion as to whether the disputed 3 was closer to his handwriting or to the handwriting of the plaintiff is not relevant. At Question 145 Mr. Choudhury was asked to cooperate with a handwriting expert. At the motion he was asked to provide three handwriting samples includes one(s) that included the number 3. There is no evidence before the court that a handwriting expert requires these handwriting samples in addition to the handwriting on the Lease Agreement pages to come to an opinion. The basis for this question has not been made out and the question is properly refused.

[25] Question 154 – Mr. Choudhury was asked whether the plaintiff occupied any part of the property other than the basement. He advised on the record that the plaintiff did not rent any other part of the house (Question 155) and that she was allowed to use the back way, backyard and side of the house. The question was answered.

[26] Question 234 – The plaintiff did not establish the relevance of lease agreement that the defendants entered into with the subsequent basement tenant. Based on the record, the question is not relevant and was properly refused.

Costs

[27] If the parties are unable to agree on costs, after a reasonable attempt to do so, they may provide me with costs submissions no more than three pages in length, in addition to a costs outline, by 10 August 2017.

Master Jolley

Date: 2 August 2017