Court File and Parties

COURT FILE NO.: CV-99-CV166817

MOTION HEARD: 20180501

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.V. Mark Inc., Plaintiff

AND:

Ontario Hydro, Defendant

BEFORE: Master B. McAfee

COUNSEL: Gwendolyn L. Adrian, Counsel for the Moving Party, the Plaintiff

Monica E. Caceres, Counsel for the Responding Party, the Defendant

HEARD: May 1, 2018

REASONS FOR DECISION

[1] This is a motion brought by the plaintiff for leave to amend the statement of claim. The opposed proposed amendments are found at paragraphs 12, 14 and the words “…a significant departure and/or in breach of prevailing practices in Ontario in relation to public procurement…” at paragraph 50 of the draft proposed amended statement of claim. The balance of the proposed amendments are not opposed.

[2] Leave is granted to amend the statement of claim with respect to the unopposed amendments. For the reasons below, leave is also granted to amend the statement of claim with respect to the opposed amendments.

[3] This proceeding was initially commenced by application on March 31, 1991. By consent order dated September 18, 2008, the application was converted to an action. A statement of claim and statement of defence were subsequently delivered.

[4] The plaintiff carries on business as an electrical contractor specializing in the installation of high-voltage cable systems. In this action the plaintiff claims, inter alia, damages in an amount equal to the plaintiff’s alleged lost profit due to the defendant’s refusal to allow the plaintiff to bid on, and/or award two projects to the plaintiff. The two projects are known as the Windsor Project and the Destec to Destec Junction Project (the Destec Project).

[5] The impugned paragraphs of the proposed amended statement of claim are as follows:

12. The Destec Project was to go to the lowest qualified bidder.

13. MVM was initially invited by Hydro to bid and did submit a bid on the Destec Project. After MVM submitted its bid, it was advised by Hydro personnel that Hydro was going to award the Destec Project to MVM but had put that decision on hold because MVM was being un-cooperative with respect to work and an account issued by MVM on another project.

14. The Plaintiff MVM therefore states that Hydro has made decisions, specifically with respect to the Windsor Project and the Destec Project, that were unfair, arbitrary, lacked transparency, groundless, a significant departure and/or in breach of prevailing practices in Ontario in relation to public procurement and made in violation of the Agreement and the principles of fairness and natural justice when it decided, in particular, since 1995, that the Plaintiff MVM would not be permitted to bid on the Defendant Hydro’s projects and/or were not qualified for their projects. (Only bolded portion opposed.)

[6] Rule 26.01 of the Rules of Civil Procedure provides:

26.01 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.

[7] On a motion for leave to amend a pleading, the court is not to engage in an assessment of the merits of the proposed amendments. Evidence to support the merits of the proposed amendments is not required.

[8] If the proposed amendments constitute a new cause of action and would allow a plaintiff to avoid an otherwise applicable limitation period, leave to amend will not be granted.

[9] As cited in Laski v. Moncarz, 2017 ONSC 3368 (Master) at para. 17 (see also National Industries Inc. v. Kirkwood, 2017 ONSC 4196 (Master) at para.14):

A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded, and no new facts are relied upon, amount simply to different legal conclusions drawn from the same set of facts, and/or simply provide particulars of an allegation already pled, or additional facts upon which the original right of action is based.

[10] If the proposed amendments arise out of the same facts, or the factual matrix that was originally pleaded, the amendments should be permitted. If the proposed amendments do not arise out of the same facts or the factual matrix that was originally pleaded, and a limitation period has expired, the proposed amendments should not be permitted (Farmers Oil and Gas Inc. v. Ontario (Ministry of Natural Resources), 2016 ONSC 6359 (S.C.J.) at para. 22)

[11] In considering the impugned pleadings, the original statement of claim must be read generously and with allowance for drafting deficiencies (Farmers Oil at para. 23).

[12] At paragraph 1(d) of the original statement of claim, the plaintiff claims damages for lost profit due to the defendant’s refusal to award to the plaintiff and refusal to allow the plaintiff to bid on the Windsor Project and the Destec Project in breach of the defendant’s duties of good faith and fairness owed to the plaintiff.

[13] At paragraph 4 of the original statement of claim the plaintiff pleads that the defendant is required to observe the principles of fairness and natural justice and to act in a fair and unbiased manner when it makes decisions to use the resources of the public and Crown to purchase goods and services on behalf of the public.

[14] At paragraph 40 of the original statement of claim the plaintiff pleads that the defendant made decisions that were unfair, arbitrary, groundless and in violation of an agreement and the principles of fairness and natural justice when it decided, in particular, since 1995, that the plaintiff would not be permitted to bid on the defendant’s projects.

[15] The proposed amendments at paragraphs 12 and 14 simply provide additional facts upon which the original right of action is based with respect to the bid on the Destec Project.

[16] With respect to the opposed proposed amendments at paragraph 50, I am satisfied that a new cause of action is not asserted. The plaintiff’s original statement of claim at paragraph 1(d) claims for lost profit as a result of the defendant’s breach of its duties of good faith and fairness with respect to the Windsor and Destec Projects. Paragraph 4 of the original statement of claim pleads that the defendant is required to observe the principles of fairness and natural justice and to act in a fair and unbiased manner. Paragraph 40 of the original statement of claim pleads that the defendant made decisions that were unfair and in violation of the principles of fairness and natural justice. The opposed proposed amendments at paragraph 50 arise out of the same factual matrix as originally pleaded and are additional particulars of the alleged violation of the principles of fairness and natural justice.

[17] As no new cause of action is asserted, there is no issue of prejudice as a result of the expiry of an applicable limitation period. I was not referred to evidence of actual prejudice.

[18] There is no issue that this action has been outstanding for some time. When the parties attended before me on March 7, 2018, they advised that they consent to attending a mediation prior to any pre-trial conference. The plaintiff is currently in the process of setting the action down for trial based on a set down date that has been consented to. The granting of leave will not delay a fixed trial date.

[19] For these reasons, leave is also granted to amend the statement of claim with respect to the opposed amendments at paragraphs 12, 14 and 50 of the proposed amended statement of claim.

[20] If further discovery or costs thrown away are sought with respect to the amendments, and if the parties are unable to resolve the issue of any terms sought, the parties may re-attend before me to address terms of the amendments. In addition, if any party seeks costs of the motion, and if after reasonable attempts to agree on costs the parties are unable to agree, the parties may make arrangements to re-attend before me to speak to the issue of costs. Any re-attendance shall be scheduled on one of my regular motions lists where sufficient time is available by contacting the civil motions scheduling unit. Any re-attendance shall be booked, not necessarily take place, within 60 days of today’s date.

[21] Summary of order granted:

1. Leave is granted to amend the statement of claim in the form of the draft amended statement of claim attached as schedule “A” to the amended notice of motion, tab 1 of the plaintiff’s motion record.

Master B. McAfee

Date: May 7, 2018