Davis v. East Side Mario’s Barrie, 2017 ONSC 6071
CITATION: Davis v. East Side Mario’s Barrie, 2017 ONSC 6071
COURT FILE NO.: CV-12-111241
DATE: 2017-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Katherine Irene Davis, Greg James Davis and Paige Gwen Davis, by her Litigation Guardian Katherine Irene Davis
Plaintiffs
– and –
East Side Mario’s Barrie
Defendant
COUNSEL:
Keenan Sprague, for the Plaintiffs
Robert Love, for the Defendant
HEARD: August 4, 2017
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Defendant has brought a motion for summary judgment alleging that the Plaintiffs’ Amended Statement of Claim (the “Amended Claim”) advances a new cause of action which is now barred by the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B. (the “Limitations Act”). The Plaintiffs, in response, take the position that the Amended Claim has not raised a new cause of action, but rather advances an alternate theory of liability on the same basic facts pleaded in the original Statement of Claim. Accordingly, the Limitations Act does not preclude the amendment.
[2] While I agree with the Plaintiffs on their characterization of the amendments, I do not agree that there is a genuine issue remaining for trial on the Amended Claim. Accordingly, I will grant the Defendant’s motion for summary judgment and dismiss the Amended Claim. My reasons are outlined below.
The Facts
[3] On September 20, 2010, the Plaintiff Katherine Davis (“Ms. Davis”) fell on the stairs at the Defendant East Side Mario’s Barrie (the “Restaurant”) while descending the stairs to the lower level washroom.
[4] The Plaintiffs commenced an action on September 19, 2012. The Statement of Claim alleged negligence, breach of duty, breach of contract and breach of the Occupiers Liability Act, R.S.O. 1990, c.O.2. (the “OLA”) relating to the condition of the stairs where Ms. Davis fell. The Restaurant delivered a Statement of Defence on March 28, 2013 and examinations for discovery proceeded on October 1 and 2, 2013. A three week trial was scheduled for November 16, 2016.
[5] The Restaurant brought a motion for summary judgment on February 24, 2016 before Justice Sutherland. The Restaurant sought to have the action dismissed as disclosing no cause of action. As part of their response, the Plaintiffs also advanced a new argument based on the alleged failure of the Restaurant to advise Ms. Davis of the existence of a main floor washroom pursuant to the OLA and the CPA. The Plaintiffs took the position that the Restaurant had a “duty” to advise Ms. Davis of the existence of a main floor washroom, which flows from the general duty of care imposed in law and from Section 9 of the CPA. In considering the Plaintiff’s position, Justice Sutherland stated:
Before embarking on analyzing the arguments of plaintiff’s counsel, the Statement of Claim does not plead such a duty of care as against the [Restaurant] nor does it cite section 9 or any provision of the CPA.
In effect, the plaintiffs are making arguments to fend off the summary judgment of the defendant but have not pleaded those novel claims of liability against the defendant. [Emphasis added.]
[6] Justice Sutherland found that the Statement of Claim as pleaded was not broad enough to encompass the new arguments and allegations advanced by the Plaintiffs in respect of the failure to advise Ms. Davis about the main floor washroom. He explained:
Paragraph 8 of the Statement of Claim pleads claims of negligence, breach of contract and breach of duty of care. The paragraph, however, does not allege that the defendant breached a duty of care or breached the contract for service by failing to advise Katherine of the existence of a main floor washroom.
Further, I do not agree, as submitted by plaintiffs’ counsel, that the pleading is broad enough to encompass the allegations of breach of contract or breach of a duty of care by the defendant not advising Katherine of the existence of the main floor washroom. [Emphasis added.]
[7] The Plaintiffs’ Statement of Claim was struck in its entirety by Justice Sutherland on April 27, 2016 for failing to disclose a genuine issue requiring a trial, without prejudice to the Plaintiffs’ right to make a motion to amend the Statement of Claim to plead “novel questions of law” within 30 days. In dismissing the action, Sutherland J. explained:
[T]he plaintiffs have not provided any evidence to pinpoint some act or failure to act on the part of the defendant. The opinion of Mr. Cockburn does not pinpoint an act or failure to act of the defendant. The evidence of Katherine in her transcripts does not pinpoint some act or failure to act by the defendant. Katherine suspects that there was a substance on the floor but does not know. Mr. Cockburn opines on the description of the incident by Katherine and the dirt on her clothing “is consistent with a dry lubricant on the tread”. Even if I accept this description, what did the defendant do or not do that caused Katherine to slip and fall down the stairs?
The plaintiffs must put “their best foot forward”. The plaintiffs must provide cogent evidence that supports their claims against the defendant.
I do not find the plaintiffs have shown, on the balance of probabilities, that there is a genuine issue requiring a trial concerning whether the defendant did not take such care in doing an act or failed to do an act that did not make Katherine reasonably safe. It is unfortunate that Katherine fell down the stairs with her newly born daughter, Paige. But a fall in itself does not translate into a breach of duty of reasonable care by the defendant. [Emphasis added.]
[8] The parties agreed to an order amending the Statement of Claim “without prejudice to any of the Defendant’s rights, including but not necessarily limited to the Defendant’s right to bring a future motion for procedural/substantive relief on the grounds that the amendments do not disclose a cause of action, are barred by the Limitations Act, and otherwise do not disclose a genuine issue requiring a trial.”
[9] Within 30 days, the Plaintiffs delivered an Amended Statement of Claim (the “Amended Claim”) alleging liability as against the Restaurant for failing to advise Ms. Davis of the existence of a main floor washroom under the OLA and the Consumer Protection Act, 2002, S.O (the “CPA”).
[10] The Plaintiffs also appealed the motion judge’s decision. The Court of Appeal dismissed the Plaintiffs appeal and made an endorsement clarifying the effect of the motion judge’s decision as twofold:
(a) Any argument regarding the condition of the stairs where the accident occurred as a basis for liability is precluded; and
(b) On proper amendments to their pleadings, it is open to the appellants to pursue the second branch of their theory of liability, namely, that the respondent is liable to the appellants in contract or under either or both of the OLA and the CPA by reason of its alleged failure to advise Ms. Davis of the existence of the main floor washroom at the respondent’s premises.
Position of the Parties
[11] The Defendant has now brought a motion for summary judgment seeking that the Amended Claim be struck as being statute barred or in the alternative disclosing no cause of action.
[12] According to the Restaurant (the Moving Party), this Court should grant summary judgment as the action, as advanced in the Amended Claim, has been statute barred. The Restaurant takes the position that the Claim, as amended, constitutes a new cause of action. Accordingly, the time for raising the claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B. (the “Limitations Act”). In the alternative, if the Amended Claim advances the same cause of action, that specific “cause of action” has been dismissed by Justice Sutherland in his ruling of April 27, 2016 and cannot be revived.
[13] The Plaintiffs (Respondents on the motion) in reply, submit that the amendments do not advance a new cause of action, but merely particularize the original allegations. According to the Plaintiffs, the original claim substantially pleaded the material facts which support the new theory of liability now explicitly advanced. Accordingly, the claim is not barred by the Limitations Act, and the motion for summary judgment should be dismissed.
Test: Motion for Summary Judgment
Is there a Genuine Issue Requiring a Trial?
[14] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Animating the interpretation of 20.04(1) is rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.
[15] The judge in deciding whether to grant summary judgment must ask: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial? A trial is not required if the judge on the motion can 1) achieve a fair and just adjudication; 2) make the necessary findings of fact; 3) apply the law to those facts; and 4) the motion is a proportionate, more expeditious and less expensive means to achieve a just result rather than going to trial. As the Supreme Court explained in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 50:
These principals are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute. [Emphasis added.]
[16] The issue to be decided on this motion is whether or not there is a genuine issue requiring a trial. While the Plaintiffs frame the issue narrowly as a question of permissible amendments, I agree with the Defendant that I am bound to consider the broader context, including any limits imposed on the Plaintiffs by the prior ruling of Justice Sutherland in making my assessment on this motion.
Does the Amendment Advance a New Cause of Action for the Purposes of the Limitations Act?
[17] A cause of action is “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by the Ontario Court of Appeal in July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.), at para. 23.
[18] A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amounts simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based. The Court of Appeal explained in 1100997 Ontario Ltd. V. North Elgin Centre Inc., 2016 ONCA 848, at paras. 22-23:
[A] proposed amendment will not be permitted where it advances a “fundamentally different claim” after the expiry of a limitation period: Frohlick v. Pinkerton Canada Ltd. In that case, the court did not permit the plaintiff in a wrongful dismissal action to amend the statement of claim to assert a claim for damages for constructive dismissal on the basis that the limitation period had expired. This court dismissed the appeal. The amendment regarding constructive dismissal related to events that occurred prior to the events described in the original statement of claim that were unrelated to that claim. The defendant was unaware of the new allegations prior to the plaintiff seeking the amendments, and the events were not put in issue or encompassed within the original claim.
Based on the foregoing, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a “fundamentally different claim” based on facts not originally pleaded. [Emphasis added.]
[19] In short, it is the “essence” or “substance” of a complaint that defines it as a cause of action. This “substance” is derived from the primary facts which are pleaded to establish the complaint. While the complaint can be characterized in various different legal ways to establish liability, or can be supplemented by additional facts, the “substance” of the complaint or the alleged “wrong” does not change. That “substance” has also been characterized as the “factual matrix” giving rise to a claim for relief. As Justice Lauwers explained at para. 26 in 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505,
If one accepts, as I do, that the broader, factually oriented approach to the meaning of “cause of action” in interpreting and applying rule 26.01 is the correct approach, and one also assumes that a similar definition must be used when applying rule 21.01(1)(b), then the defendant’s basic entitlement is to have notice of the factual matrix of which the claim for relief arises. The plaintiff’s core assertion in the current Statement of Claim is: “Something bad happened here; BMO is in the position to know about it and might have participated in it, but that is not yet known.” [Emphasis added.]
[20] In this case, the “substance” of the complaint is that the Restaurant, through its actions or inaction during the course of the Defendant’s visit on September 20, 2010, caused the Defendant to fall down the stairs. In my view, the Statement of Claim in its original form pleaded facts broad enough to encompass the potential obligation of the Restaurant to point out the existence of the main floor washroom. For example, at paras. 8(a), (b) and (f) of the original Statement of Claim state:
The plaintiffs plead that this casualty was caused by the negligence, breach of duty, breach of contract and breach of the Occupier’s Liability Act, R.S.O. 1990, Chapter O.3…. in that;
(a) it failed to take reasonable or any care to ensure that the plaintiff Katherine Irene Davis would be reasonably safe while walking in or about the Defendant’s premises;
(b) It permitted or allowed the plaintiff Katherine Irene Davis to walk in or about the Defendant’s premises when it knew or ought to have known that it was unsafe and dangerous for the plaintiff to do so;
(f) It failed to give the plaintiff Katherine Irene Davis reasonable or any adequate or effective warning of the dangerous situation which it knew or ought to have known existed;
[21] Whether or not the “wrong” is characterized as a breach of the Defendant’s obligations under the CPA or negligence under the OLA does not change the essential nature of the complaint at issue. Nothing in the Amended Claim suggests that the general nature of the complaint has changed. I agree with the Plaintiffs in their factum at paragraph 49 which states:
The proposed amendments expand upon, buttress and particularize the original material facts pleaded. The original allegations were that the defendant is liable for breach of contract, negligence and the OLA by failing to warn its customer, the plaintiff, of the dangers posed by the stairs to the plaintiff on September 20, 2010 while she attended the restaurant for lunch with her newborn baby Paige. The amendments explicate the plaintiff’s alternative theory of liability that the defendant out to have advised the plaintiff of the upstairs family washroom either expressly or through signage.
[22] In my view, it is essentially an alternative theory of liability for the same complaint that was before Justice Sutherland. I agree with the Plaintiffs that the Amended Claim does not advance a “new cause of action” for the purposes of the Limitations Act and under normal circumstances an amendment would be permissible under Rule 26.01.
[23] However, while the Defendant would clearly be entitled to amend the claim under section 26.01, this is not simply a 26.01 motion. Rather, this is a 20.04(1) motion, and the question to be answered here is whether there remains a genuine issue requiring a trial. I find there is not.
[24] Given that the Amended Claim relates to the same essential complaint, I cannot see how that cause of action can be revived simply by reframing the complaint in different legal terms. If that were permitted, it would render the original decision of Justice Sutherland meaningless. Given that the Plaintiffs have been precluded from relying on the “condition of the stairs” as a basis for liability, there is no residual merit to the cause of action advanced in the Amended Claim. The Plaintiffs cannot simply assert a general duty to advise of the existence of a main floor washroom as a distinct basis for liability. Accordingly, I find that summary judgment is warranted.
[25] If I am incorrect on this point, and the duty to advise of the existence of a main floor washroom somehow constitutes a distinct cause of action, I would hold that the new cause of action is barred by the Limitations Act. This point has been conceded by the Plaintiffs. The applicable limitation period is not in dispute.
[26] Accordingly, the application for summary judgment is granted. The Plaintiffs’ Amended Statement of Claim is dismissed.
[27] I will consider the costs submissions of the parties in writing up to 2 pages in length, to be filed within 3 weeks of the release of this decision.
[28] I thank both counsel for their assistance in this matter.
Justice C.F. de Sa
Released: October 11, 2017
CITATION: Davis v. East Side Mario’s Barrie, 2017 ONSC 6071
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Katherine Irene Davis, Greg James Davis and Paige Gwen Davis, by her Litigation Guardian Katherine Irene Davis
Plaintiffs
– and –
East Side Mario’s Barrie
Defendant
REASONS FOR DECISION
Justice C.F. de Sa
Released: October 11, 2017