Kim v. Home Depot of Canada Inc. et al.

Court File No.: CV-14-513933 Motion Heard: May 11/18 Counsel: N.G Wilson, for the plaintiffs 416-599-7910, f. G. Hall, for the moving defendants 416-862-2793, f.

Before: Master Abrams

Endorsement

[1] The trial herein is scheduled to begin on June 4/18. This motion was heard by me with the knowledge and at the direction of Justice Firestone with whom counsel conferred before the motion was argued.

[2] The timing of the motion and of the trial make it necessary for me to rule on the motion quickly. That being so, and given the constraints of my schedule, my reasons are necessarily brief.

[3] The defendants Green Light Courier and Gholamreza seek to amend their statement of defence on the eve of trial and some 3 1/2 years after this action was commenced to plead, for the first time, that the claims of Mr. Kim arise from the use and operation of an automobile and that the provisions of the Insurance Act, including the threshold and deductible provisions, apply herein.

[4] R. 26.01 provides that on a motion at any stage of an action, the court shall grant leave to amend a pleading—save if non-compensable prejudice would result.

[5] The plaintiffs here submit that to permit the amendment would be to cause unfairness to the plaintiffs—to prejudice them in a manner that cannot be compensated for by way of an adjournment or costs. They say that, as in Family Delicatessen Ltd. v. London (City), 2006 5135 (Ont. C.A.), the not-insubstantial delay in advancing these new pleas (with the discoveries, mediation and pre-trial already having taken place [on a different theory of the case], with the moving defendants’ counsel twice having certified that no amendments of the pleadings are/would here be required, with the statement of defence having already been amended once—with no reference made to the Insurance Act, and with the trial already having been adjourned once before) creates, in the context of this action[^1], presumed prejudice. They posit, further, that though the onus to rebut presumed prejudice lies with the moving parties (Family Delicatessen Ltd. v. London (City), supra, at para. 6), prejudice here has not been rebutted.

[6] I agree. No explanation has been given for the delay and only a generalized statement, made by the moving defendants’ counsel, has been proffered in support of the moving defendants’ contention that no non-compensable prejudice will result if the amendments sought are permitted.

[7] But even if I were to excuse the lack of explanation and the evidentiary lacunae, the plaintiffs argue, I still should not permit the amendments. To do so, they argue further, would be to cause the plaintiffs to suffer actual prejudice.

[8] In this regard, plaintiffs’ counsel persuasively states that to permit reliance on the Insurance Act provisions here suggested would be to alter the complexion of the case—the framework within which it was conceived, prosecuted and defended. Mr. Kim will now be subject to the threshold provision, a provision that eliminates entitlement to general damages for injuries that do not result in ‘permanent serious impairment of an important physical, mental or psychological function’; (the plaintiffs) to the deductible provisions, which provisions reduce general damages by some $37,385 for an injured person and $18,692 for a Family Law Act claimant; and to provisions that will lead to a reduction in any damages awarded Mr. Kim for loss of income and rehabilitation expenses by such amounts as would have been available to him under the Statutory Accident Benefits Schedule.

[9] The plaintiffs did not prosecute their claims with these provisions in mind--relying on the specific defences advanced (and the characterization of this case as other than a motor vehicle case). In this regard, and further, Mr. Kim made a decision not to apply for statutory accident benefits. The plaintiffs say that it is likely too late for him to do so (and while that statement may not be definitive, there is nothing from the moving defendants to negate the notion that it may indeed be too late). While I accept that this latter point may be speculative, the fact that threshold was not an issue within the plaintiffs’ contemplation when Mr. Kim’s injuries were assessed is not. Indeed, the plaintiffs’ experts’ reports do not address the issue. Further, the issue of potential reduction of rehabilitation expenses and income loss has not been addressed by the parties, at all, in preparation for trial (with no calculations or expert report having been prepared).

[10] Also, the proposed amendments raise new factual issues relating to liability, including in respect of the apportionment of liability among the three defendants and the nature of Mr. Gholamreza’s relationship/employment status with Green Light Courier Inc. There is nothing before me to suggest that evidence on these issues is still available--Mr. Gholamreza not having worked for Green Light Courier Inc. since 2015.

[11] Then too, and in any event, the examination for discovery of the representatives of the Green Light and Home Depot defendants took place by way of written interrogatories. Though there were deficiencies in the answers provided, the plaintiffs say, a decision was made not to move on those deficiencies (including as they relate to the issue of the interconnectedness of the defendants[^2]). I accept that that the plaintiffs’ decision was context-specific and was taken with a view to the defendants’ potential liability being joint and several.

[12] Mr. Wilson says that, with the entire case having been prosecuted on the basis that it is not a motor vehicle accident case (with only reliance on the Negligence Act and Occupiers’ Liability Act having, before now, been pled) and with strategic decisions having been made accordingly[^3], it is not now possible to “unscramble the egg”. In all of the circumstances, I am inclined to agree.

[13] The amendments now proposed are proposed for the first time; the presumption of prejudice has not been rebutted (no explanation for the delay--a delay that, here, is of “overriding relevancy”[^4]--has been provided; and, an insufficient evidentiary foundation for the bald assertion that no non-compensable prejudice will result from the amendment has been laid); there is evidence of actual prejudice (which has not been addressed even by way of reply evidence); the moving defendants certified twice that no further amendments to their defence were contemplated[^5] and do not, now, explain why that is no longer so, i.e. what changed for them; the trial is scheduled to take place within less than one month; and, the principal plaintiff is of advanced years. These considerations, all, lead to me to agree with the plaintiffs’ position on the motion.

[14] The motion is thus denied. Failing agreement as to the issue of costs, I may be spoken to.

May 17/18

[^1]: Looking at this litigation contextually, they argue, the delay can be said to be inordinate. [^2]: i.e., who might be accorded protected defendant status? [^3]: And with a different view of the plaintiffs’ potential costs exposure. [^4]: Simpson v. Vanderheiden, 1985 CarswellOnt 449 (H.C.J.), at para. 13. [^5]: I note that, in Behm v. Armitage, 1990 6776 (ON SC), [1990] O.J. No. 162 (S.C.O.), “prejudice to the administration of justice” was said to be appropriately considered.