Superior Court of Justice - Ontario

CITATION: Cameron v. Mylrea, 2017 ONSC 6387

COURT FILE NO.: CV-12-464285

MOTION HEARD: 20171017

RE: Jamie Cameron, Plaintiff

AND:

William Norman Mylrea, the Corporation of the City of Mississauga, Wei Zhao, Mary Amendola, Defendants

BEFORE: Master B. McAfee

COUNSEL: Sara Nagalingam, Counsel for the Moving Party, the Plaintiff Odette Fraser, Counsel for the Responding Party, the Defendant Mary Amendola

HEARD: October 17, 2017

REASONS FOR DECISION

[1] This is a motion brought by the plaintiff for leave to amend the statement of claim and for an order that questions refused on the examination for discovery of the defendant, Mary Amendola (Amendola) be answered.

[2] For the reasons that follow, the motion is granted.

[3] The action arises as a result of two motor vehicle accidents. Amendola was involved in the second motor vehicle accident of February 10, 2011. Amendola was the owner and operator of a motor vehicle that collided with the rear of the plaintiff’s motor vehicle.

[4] As a result of the second motor vehicle accident Amendola was convicted pursuant to section 253(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-43. Amendola paid a fine in the amount of $1,500.00 and Amendola’s driver’s licence was suspended from February 10, 2011 to April 20, 2012. Amendola also paid approximately $500.00 for a mandatory court ordered alcohol remedial program.

[5] The proposed amendments at paragraph 1(a) of the proposed amended statement of claim are not opposed. The balance of the proposed amendments at paragraph 1(a1), A1 and 14a to d of the proposed amended statement of claim are opposed. The parties agree that if leave is granted with respect to the proposed amendments, the refusals ought to be answered.

[6] Amendola opposes the contested proposed amendments for three reasons. Amendola argues that she has already paid her debt to society as a result of the above noted conviction and the amendments are therefore not permitted. Amendola also argues that the plaintiff has not satisfied his burden regarding presumed prejudice. Amendola also argues that the amendments will delay the action and frustrate the process.

[7] The contested proposed amendments are as follows:

1.(a1) Punitive damages in the amount of $100,000.00 against the Defendant, Mary Amendola;

9A1. As against the Defendant, Mary Amendola, in addition to the allegations above:

(a) She permitted herself to arrive at such a condition from drinking alcoholic beverages, such that her normal faculties, perception, will, and judgment were so affected that she no longer had the capacity to operate her vehicle with the caution characteristic of a reasonably careful driver who had not consumed such beverages;

14a. The Plaintiff pleads that the Defendant, Mary Amendola, has acted without regard to the health and financial well-being of the Plaintiff or the public in general. In particular, the Defendant Amendola, drove a vehicle while intoxicated and/or impaired by alcohol or drugs and attempted to flee the scene of the accident.

14b. The Plaintiff further pleads that the actions of the Defendant Amendola, as hereinbefore described above at paragraph 14a, constitute criminal, callous, wanton, depraved, and malicious, and represent a marked departure from the standards of decency that members of the public expect of law abiding individuals.

14c. The Plaintiff further pleads that the actions of the Defendant Amendola, as hereinbefore described above at paragraph 14a, constitute such offensive and unacceptable behavior as to give rise to punitive damages.

14d. The Plaintiff further pleads that an award of punitive damages is warranted to censure the conduct of the Defendant Amendola and to demonstrate to her, and to others who may otherwise participate in similar conduct, that such conduct is not tolerated in society.

[8] Rule 26.01 of the Rules of Civil Procedure 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.

[9] As stated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 69, in Canada there is no bar to a claim for punitive damages in circumstances where punishment has been imposed by a criminal court arising out of substantially the same facts:

…there is recognition that the primary vehicle of punishment is the criminal law (and regulatory offences) and that punitive damages should be resorted to only in exceptional cases and with restraint. Where punishment has actually been imposed by a criminal court for an offence arising out of substantially the same facts, some jurisdictions, such as Australia and New Zealand, bar punitive damages in certain contexts (Gray, supra; Daniels, supra), but the dominant approach in other jurisdictions, including Canada, is to treat it an another factor, albeit a factor of potentially great importance. (Buxbaum (Litigation guardian of) v. Buxbaum, [1997] O.J. No. 5166 (QL) (C.A.); Glendale v. Drozdzik (1993), 1993 CanLII 6867 (BC CA), 77 B.C.L.R. (2d) 106 (C.A.); Pollard v. Gibson (1986), 1 Y.R. 167 (S.C.); Joanisse v. Y. (D.) (1995), 1995 CanLII 2783 (BC SC), 15 B.C.L.R. (3d) 224 (S.C.); Canada v. Lukasik (1985), 1985 CanLII 1146 (AB QB), 18 D.L.R. (4^th) 245 (Alta. Q.B.); Wittig v. Wittig (1986), 1986 CanLII 3081 (SK QB), 53 Sask. R. 138 (Q.B.)) The Ontario Law Reform Commission, supra, recommended that the “court should be entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant” (p. 46).

[10] In McIntyre v. Grigg, 2006 CanLII 37326 (Ont.C.A.) the Court of Appeal held that punitive damages could be awarded against a defendant driver who was driving while his blood alcohol level exceeded the legal limit and who was convicted of careless driving and fined $500.00. At para. 76, the following is stated:

Counsel for the appellants Grigg argued that punitive damages would be inappropriate in this case, as Andrew Grigg’s conduct had already been punished by his conviction for careless [page 186] driving and the imposition of a $500 fine. We agree that a factor of significant importance in assessing whether it would be appropriate to award punitive damages is whether punishment has already been imposed in a separate proceeding for the same misconduct. Binnie J. noted at para. 69 in Whiten, supra, that the Ontario Law Reform Commission, in its Report on Exemplary Damages (Toronto: The Commission, 1991) had recommended that the “court should be entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant” (at p. 46). At para. 123 of Whiten, Binnie J. made the following comments:

In Canada, unlike some other common law jurisdictions, such “other” punishment is relevant but it is not necessarily a bar to the award of punitive damages. The prescribed fine, for example, may be disproportionately small to the level of outrage the jury wishes to express. The misconduct in question may be broader than the misconduct proven in evidence in the criminal or regulatory proceeding. The legislative judgment fixing the amount of the potential fine may be based on policy considerations other than pure punishment. The key point is that punitive damages are awarded “if, but only if” all other penalties have been taken into account and found to be inadequate to accomplish the objectives of retribution, deterrence, and denunciation.

[11] Whether punitive damages will ultimately be awarded in the particular circumstances of this case is a determination to be made at trial, not on a motion to for leave to amend the statement of claim.

[12] The decision relied on by Amendola of Rioux v. Smith, 1983 CanLII 544 (BC CA), is not binding authority and was decided prior to the Supreme Court of Canada’s decision in Whiten and the Ontario Court of Appeal’s decision in McIntyre. The decision of Fleury v. Fleury, 2001 CanLII 294 (ON CA), [2001] O.J. No. 1720 (C.A.) also relied on by Amendola was an appeal from a decision at trial, not from a pleadings motion and was also decided prior to Whiten and McIntyre.

[13] I am satisfied that there is no non-compensable prejudice to the defendant Amendola if the contested amendments are granted. At paragraph 28 of the affidavit of Fatima Drennan, there is the statement that she verily believes that the defendants will not be subject to any non-compensable prejudice. There was no cross-examination on the affidavit. On consent of the Attornery General, a production order of the crown file/police report has been made (see my order dated July 28, 2017). To the extent that there may be any presumed prejudice, the presumption has been rebutted. There is no evidence of actual prejudice.

[14] To the extent that Amendola argues that there is prejudice because the proposed contested amendments will increase the damages and her potential personal liability, this is not prejudice contemplated by Rule 26.01 (see Jalowiec v. Duchene, 2016 ONSC 5970 (S.C.J.) at para. 48).

[15] The action has not be set down for trial. No trial date has been set. Unlike the circumstances in Froese v. Complex Services Inc., 2016 ONSC 6251 (S.C.J.) relied by Amendola, there will not be a lengthy delay in trial.

[16] This is also not a case of effectively starting the action over. Questions relevant to the proposed amendments were asked and refused on Amendola’s examination for discovery. As agreed by the parties, if leave to amend is granted with respect to the contested proposed amendments, the refusals will be answered.

[17] For these reasons, leave is granted to amend the statement of claim and the refusals shall be answered.

[18] Although the plaintiff was successful on the motion, I agree with the submissions of Amendola that there should be no costs of the motion. After receiving responding motion material, the plaintiff chose not to pursue a number of the proposed amendments. There shall be no costs of the motion.

[19] Order to go as follows:

1. On an unopposed basis, leave is granted to amend the statement of claim with respect to the proposed amendments at paragraph 1a of the proposed amended statement of claim;
2. Leave is granted to amend the statement of claim with respect to the proposed amendments at paragraph 1(a1), A1 and 14a-d of the proposed amended statement of claim;
3. The questions refused on Amendola’s examination for discovery as listed at tab “G” of the plaintiff’s motion record shall be answered within 30 days;
4. There shall be no costs of the motion.

Master B. McAfee

Date: November 8, 2017