Court File and Parties
COURT FILE NO.: 15-63611 DATE: 20181029 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: SURANIKA DIAS Plaintiffs – and – CAPITAL SPORTS PORPERTIES INC., ARAMARK ENTERTAINMENT SERVICES (CANADA) INC., and JOHN DOE Defendants
Counsel: Patrick J. Poupore, for the Plaintiff Patrick Simon, for David Kealey Ginger Warner, for the Capital Sports Properties
HEARD: October 26, 2018
Reasons for Decision
BEAUDOIN J.
[1] The Plaintiff (“Dias”) brings this motion to further amend the Amended Statement of Claim to substitute the name David Kealey (“Kealey”) for John Doe and to plead particulars of negligence. David Kealey agrees with the substitution of his name and there is no argument that his name could have been discovered sooner. He argues that the proposed amendments plead a new cause of action and that this cause of action is prescribed by the provisions of the Limitations Act, S.O. 2002, c. 24, Sched. B. Accordingly, it is necessary to decide if the original pleading disclosed a cause of action.
Background
[2] Dias was attending an event at the Canadian Tire Centre on December 30, 2013. The Defendant, Capital Sports Properties Inc. (“Capital Sports”), was the owner and operator of the premises. The Defendant, Aramark Entertainment Services (Canada) Inc. (“Aramark”), was the operator of the food concession responsible for serving food and beverages at the premises. It is alleged that Kealey was a patron at all material times.
[3] The Statement of Claim goes on to state: 6. On or about December 30, 2013, the defendant, John Doe, stood up and fell onto the plaintiff who was seated in front of him. The plaintiff, who had been standing, broke his fall. The plaintiff then fell forward down three rows of seating and struck her head and face on the back of the chair. 7. The plaintiff states and the fact is that she sustained a head injury, a dislocation to her hip and her jaw, sprained her left wrist, injured both knees, and chronic headaches.
[4] Dias then pleads that the Defendants, Capital Sports and Aramark, are liable for the damages arising from Doe’s fall upon the Plaintiff.
[5] Paragraph 11 targets the Defendant, Aramark, and pleads that it possessed a license issued pursuant to the Liquor License Act, R.S.O. 1990, c. L.19 and further pleads that Kealey became intoxicated on the premises of the Defendant, Aramark, and “as a result of his consumption of liquor sold and provided to him by Aramark, he became intoxicated to the extent that he became dangerous to himself and to others.”
[6] Kealey argues that no cause of action is pled in that claim. He concedes that it is trite law that a Statement of Claim should not be struck unless it is plain and obvious that the claim discloses no reasonable cause of action. He acknowledges that the allegations in the Statement of Claim are taken to be as true, and the Statement of Claim is to be read generously.
[7] Kealey submits that Dias alleges only that he fell on her and that this is an insufficient factual matrix to support the tort of negligence. If it were sufficient, then Kealey submits that Dias would have no need to amend her claim to add the particulars of negligence proposed in paragraph 11 of the Fresh as Amended Statement of Claim. Kealey submits that even with a generous reading of the claim, the necessary elements of the tort of negligence are lacking.
[8] Dias points out that she has pled that Kealey fell on her and that she suffered injuries as a result of the fall. She has pled the Defendant Kealey became intoxicated to the point of being a danger to himself and others, and further, that she has pled the Negligence Act, R.S.O. 1990, c. N.1.
[9] According Dias, Kealey has failed to demonstrate that it is plain and obvious, and beyond doubt that her claim discloses no cause of action.
[10] Dias submits that the proposed amendments to the Statements of Claim simply particularize allegations of negligence already pled. She also submits that the amendments are not necessary to prosecute the claim as such, but merely set out the scope of questions to be asked at Kealey’s proposed Examinations for Discovery.
The Legal Framework
[11] Rule 21 provides: 21 .01 (1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg.194, r. 21.01 (1) .
[12] The test governing the application of the motion to strike a pleading was set up by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 where it considered a similar rule in British Columbia. Thus, the test in Canada governing the application of provisions like rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the Statement of Claim can be proved, is it “plain and obvious” that the Plaintiff's Statement of Claim discloses no reasonable cause of action? As in England, if there is a chance that the Plaintiff might succeed, then the Plaintiff should not be “driven from the judgment seat.” Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the Defendant to present a strong defence should prevent the Plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in rule 19(24) of the British Columbia Rules of Court should the relevant portions of a Plaintiff's Statement of Claim be struck out under rule 19(24)(a).
[13] As set out by the Divisional Court in Abdool v. Anaheim Management Ltd., 21 O.R. (3d) 453, I am required to give the Statement of Claim as generous a reading as possible, with a view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies. The Court of Appeal held more recently in Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691 at para. 95: 95 In determining whether pleadings disclose a cause of action, the focus must be on the substance of the pleading, not its form: Courts have refused to strike pleadings even in cases in which the plaintiff has not specifically pleaded all elements of the cause of action, so long as those elements are implicit in the rest of the pleadings: As Lauwers J. (as he then was) emphasized, as long as the existing pleading “raises the factual matrix of concern to the plaintiff and within which [the defendant’s] possible liability is to be located[,] it successfully asserts a cause of action within the meaning of rule 21.01(1) (b).” Thus, even if the plaintiff does not explicitly set out the technical cause of action on which it relies, if the facts as pleaded implicitly advance such a claim, the court ought not to strike the pleadings. (internal citations omitted)
[14] In applying these principles to this case, I conclude that the Amended Statement of Claim could have been pleaded more clearly but that it contains a factual matrix necessary to support a negligence claim against Mr. Kealey. A plaintiff is not required to name or specify the technical cause of action. 1309489 Ontario Inc. v. BMO Bank of Montreal, et al, 2011 ONSC 5505, 107 O.R. (3d) 384 at para. 27.
[15] There is an allegation that Kealey was a patron of the venue where Dias was injured. A formulaic expression of a duty of care is not necessary to find that there is a duty to avoid falling on others. Falling on another patron is implicitly a breach of that duty of care. Moreover, in this case, it is alleged that Kealey became so intoxicated that he became a danger to himself and to others. Simply because this allegation is made in a paragraph targeting Aramark does not take it out of the factual matrix.
[16] For these reasons, Defendant, Kealey’s motion to strike the Amended Statement of Claim is dismissed and the Plaintiff’s motion to further amend the Amended Statement of Claim is granted. The parties may make brief submissions as to costs (not exceeding 3 pages) within 10 days of the release of this Decision.