Court File and Parties

COURT FILE NO.: CV-15-00525439 MOTION HEARD: 20180817 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria Plaitis, Chryssoula Plaitis and Nikolaos Plaitis, Plaintiffs AND: Balls of Fun Inc., The Great-West Life Assurance Company, London Life Insurance Company and John Doe, Defendants

BEFORE: Master B. McAfee

COUNSEL: Boris Goryayev, Counsel for the Moving Parties, the Plaintiffs Jessica L. Kuredjian, Counsel for the Responding Party, the Defendant Balls of Fun Inc.

HEARD: August 17, 2018

REASONS FOR DECISION

[1] The plaintiffs bring a motion for leave to amend the statement of claim. The defendant Balls of Fun Inc. (the defendant) opposes the proposed amendments at paragraphs 1(c), 12, 13, 21 (last two sentences only), 22, 23 (words “after the stoppage of her LTD payments” only) and 24 (words “after the stoppage of her LTD payments” only). The balance of the proposed amendments are not opposed and leave shall be granted with respect to the unopposed proposed amendments.

[2] By order dated June 1, 2018, the action was dismissed against the defendants the Great-West Life Assurance Company and London Life Insurance Company.

[3] 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.

[4] The Court of Appeal in Marks v. Ottawa (City), 2011 ONCA 248 at paragraph 19 states:

[19] Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 1999 CanLII 19921 (ON SCDC), 45 O.R. (3d) 498 (Div.Ct.) at paras. 11-15. Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (H.C.J. Master) at p. 721, aff’d at p. 723 (H.C.J.), and quoted with approval in Vaiman v. Yates (1987), 1987 CanLII 4345 (ON SC), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

• An amendment should be allowed unless it would cause an injustice not compensable in costs.

• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.

• No amendment should be allowed which, if originally pleaded, would have been struck.

• The proposed amendment must contain sufficient particulars.

[5] There is no evidence of prejudice.

[6] The proposed amendment at paragraph 1(c), is an addition of an alternative claim for damages for spoliation. The defendant argues that there can be no claim for damages due to spoliation. The defendant argues that spoliation is a rule of evidence only that a rule of evidence should not be pleaded. The defendant relies on Spasic Estate v. Imperial Tobacco Ltd., 2000 CanLII 17170 (Ont.C.A.) at para. 25.

[7] The plaintiffs are not seeking leave to amend to plead a rule of evidence. The plaintiffs are seeking leave to amend to plead an independent tort of spoliation. In Spasic Estate, the plaintiff’s claim based on the tort of spoliation was permitted to proceed to trial (see paras. 21 and 22). The tort of spoliation is an open question in Ontario. Leave is granted with respect to the proposed amendment at paragraph 1(c).

[8] The proposed amendments at paragraphs 12 and 13 provide particulars of the alternative claim for damages for spoliation. While these paragraphs refer in part to the defendant’s insurer, insurance agent and a computer technician who are not parties, the reference to these non-parties are material facts relied upon by the plaintiffs in support of the alternative claim for damages at paragraph 1(c). Reading the proposed pleading generously, the plaintiffs appear to be alleging that the defendant is in law responsible for the acts and/or omissions of its insurer, insurance agent and/or computer technician, although this is not explicitly stated. For clarity, such a statement ought to be included if this is alleged by the plaintiffs.

[9] If the plaintiffs are alleging that the defendant is in law responsible for the acts and/or omissions of its insurer, insurance agent and/or computer technician, on the condition that such a statement be included, leave shall also be granted with respect to the proposed amendments at paragraphs 12 and 13. If the plaintiffs are not alleging that the defendant is in law responsible for the acts/omissions of the non-parties, leave is not granted with respect to those portions of paragraphs 12 and 13 that reference acts/omissions of the non-parties.

[10] The contested proposed amendments at paragraph 21 are statements of the status of the receipt of long term disability benefits and Canada Pension Plan disability benefits by the plaintiff, Maria Plaitis. There is often not a bright line between pleadings of fact and evidence. In my view, the proposed pleading in this regard is a permissible pleading of material fact concerning benefits. The defendant pleads entitlement to a credit for any benefits paid or available to the plaintiff from any source whatsoever at paragraph 14 of the statement of defence. Leave is granted with respect to the contested proposed amendments at paragraph 21.

[11] The proposed amendments at paragraph 22 are particulars of a claim against the defendant for the loss of long term disability benefits and their lifetime valuation. It is alleged that long term disability benefits were wrongfully terminated by the group health benefits insurer of the plaintiff, Maria Plaitis. On the basis of the record before me, I am not satisfied that there is a tenable claim against the tort defendant for damages as a result of a long term disability insurer’s denial of long term disability benefits. I was not referred to any authority in support of such a claim. On the motion the plaintiffs confirmed that the plaintiff Maria Plaitis has brought a separate action against her group health benefits insurer. Leave is not granted with respect to the proposed amendments at paragraph 22.

[12] The contested proposed amendments at paragraphs 23 and 24 are relevant, material facts. It is alleged that the plaintiff Maria Plaitis has been unable to earn any income after the stoppage of her LTD payments. The impugned proposed amendments at paragraphs 23 and 24 plead the timing of the plaintiff’s alleged inability to earn any income. Leave is granted with respect to the contested proposed amendments at paragraphs 23 and 24.

[13] There was divided success on the motion. Responding motion material was served approximately 3 months after service of the moving motion material. After receiving the responding material, the proposed amended pleading contained in the original motion material was revised. To the extent that the defendant relies on the letter from defendant’s counsel dated April 2, 2018, the defendant did not achieve an outcome as favourable as or more favourable than the terms set forth in the letter. In all of the circumstances of this motion the parties shall bear their own costs of the motion including the attendance on June 1, 2018.

[14] Summary of order granted:

1. Leave is granted to amend the statement of claim in the form of the proposed amended statement of claim at exhibit B to the affidavit of Li Ming Lin sworn May 31, 2018, on the following terms and conditions:

(a) With respect to the proposed amendments at paragraphs 12 and 13, if the plaintiff is alleging that the defendant is in law responsible for the acts/omissions of the non-parties referred to therein, such a statement shall be included. If the plaintiff is not alleging that the defendant is in law responsible for the acts/omissions of the non-parties, leave is not granted with respect to those portions of paragraphs 12 and 13 that reference acts/omissions of non-parties.

(b) The proposed amendment at paragraph 22, for which leave is not granted, be removed.

2. There shall be no costs of the motion.

Master B. McAfee

Date: September 4, 2018