Court File and Parties
COURT FILE NO.: CV-15-4612 DATE: 2018 11 16 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sandy Sukhdeo, Plaintiff AND: McDonald’s Restaurant of Canada Limited, Defendant
BEFORE: Barnes J.
COUNSEL: Stacey Stevens, for the Plaintiff Jennifer Matic, for the Defendant
HEARD: June 15, 2018
Endorsement
Introduction
[1] This action has been set down for trial. Sandy Sukhdeo (the plaintiff) seeks leave to bring a motion to amend her Statement of Claim. Pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F.3 (Family Law Act), she seeks to add her daughters, Trisha Sukhdeo (Trisha) and Sasha Sukhdeo (Sasha), as plaintiffs to this action.
[2] The plaintiff’s motion for leave to bring a motion to amend her Statement of Claim is granted. Her motion to amend her Statement of Claim is denied.
Background Facts
[3] On June 10, 2015, the plaintiff went to the drive through window of a restaurant of McDonald’s Restaurant of Canada Limited. She ordered green tea. The plaintiff alleges that the defendant’s employee failed to close the lid on the cup containing the green tea. The tea spilled and caused serious burns to her hand, forearm, elbow and hip.
[4] Pleadings have been completed. On March 22, 2016, Justice Trimble issued an Order setting a timetable for this litigation. A pre-trial conference has been completed. The trial is scheduled for the January 7, 2019 sittings.
a) Leave to bring a motion to amend the Statement of Claim
[5] The plaintiff is granted leave to bring a motion seeking leave to amend her Statement of Claim to add Trisha and Sasha as plaintiffs.
[6] At any stage of a proceeding, a court, may “add, delete or substitute a party…” Ontario Rules of Civil Procedure (Rules), Rule 5(2). An amendment to a pleading shall be granted by the court on request. This is subject only to circumstances “where prejudice would result that could not be compensated by costs or an adjournment”: Rule 26.01.
[7] A party “who has set an action down for trial and any party who has consented to the action being placed on the trial list shall not initiate or continue any motion or form of discovery without leave of the court”: Rule 48.04.
[8] The Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: Rule 1.04(1). The court may make any amendments that are just in the circumstances and as necessary in the interest of justice: Rule 2.01(1).
[9] When a party, who has set an action down for trial or agreed to set the action down for trial, seeks to amend a Statement of Claim, Rules 48.04 and 26.01 are engaged. In such circumstances, I prefer an analytical frame work which is framed and applied in the context of Rules 1.04(1) and 2.01(1).
[10] Under such a framework, the question to be answered is whether in all the circumstances of the case it is just to make the amendment requested. Such an approach is consistent with Rules 1.04(1) and 2.01(1). This approach is described by Master Muir in BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, 126 O.R. (3d) 154 at paragraphs 11 to 14 and referred to with approval in Kaur v. Blue Cross, 2018 ONSC 3303, at para. 23.
[11] A non-exhaustive list of factors to consider in an assessment of “what is just in all the circumstances” includes: whether there has been a substantial and unexpected change in circumstances or whether any resulting prejudice cannot be “compensated by costs or an adjournment”.
[12] The plaintiff was injured on June 10, 2015. She issued her Statement of Claim on October 9, 2015. The Statement of Defence was delivered on November 13, 2015. Examinations for discovery were completed on April 13, 2016. The Trial Record was filed on November 14, 2016. It is unclear when she retained her first counsel. She retained new counsel on December 1, 2017. On January 16, 2018, new counsel’s representative informed the defendant of the plaintiff’s intention to amend the Statement of Claim to add Trisha and Sasha as co-plaintiffs.
[13] The plaintiff submits that an amendment will cause the defendant no non-compensable prejudice and thus, the request for leave should be granted. The defendant submits that there has been no “substantial and unexpected change in circumstances” warranting granting leave.
[14] According to the plaintiff’s new counsel, upon an early review of the file he determined that Trisha and Sasha should be added as plaintiffs. He said he promptly informed defendant’s counsel and brought this motion to seek leave to bring a motion to amend.
b) Discussion
[15] The record reveals that there has been no substantial and unexpected change in circumstances which warrants granting leave to bring a motion to amend the Statement of Claim.
[16] The addition of Trisha and Sasha as co-plaintiffs does not introduce new facts or create a new cause of action; all examinations for discovery have been completed; the additional plaintiffs will expand the length of the trial; additional discoveries will be required and the proposed plaintiffs are children (dependants) with a statutory right to be parties to this action.
[17] The addition of new plaintiffs at this stage of the action may require an adjournment of the trial date. The defendant will incur additional costs, however, such prejudice can be compensated by a costs award and/or an adjournment. On balance, I conclude that it is just in all the circumstances to grant leave to bring the motion seeking leave to amend the Statement of Claim.
c) Leave to Amend the Statement of Claim
[18] The plaintiff seeks to amend the Statement of Claim to add Trisha and Sasha pursuant to s. 61 of the Family Law Act. Leave to amend the Statement of Claim is denied.
[19] Section 61 of the Family Law Act gives the dependents of “a person injured or killed by fault or neglect of another under circumstances where the person is entitled to recover damages…” the right to sue in tort. Therefore, Trisha and Sasha’s Family Law Act claim is based on the plaintiff’s entitlement to sue in tort. Once the plaintiff meets the threshold of entitlement the Family Law Act claim can proceed. Thus, the Family Law Act claim is a derivative of the plaintiff’s action: Wilson v. Arseneau 2012 ONSC 2879, 111 O.R. (3d) 56 at paragraphs 16-24; Giroux v Pollesel 2011 ONSC 2259 at paragraph 16 aff’d Giroux v Pollesel 2012 ONSC (Div. Crt.) 2203.
[20] A claim is statute barred 2 years from the day it was discovered by the plaintiff: Limitations Act, 2002, S.O. Chapter 24, Schedule B (Limitations Act) s. 4.
[21] Section 5(1) of the Limitations Act sets out when a claim is discovered as the earlier of:
(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the act or omission was that of the person against whom the claim is made, and (iii) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (iv) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
[22] Section 5(1) is a codification of the common law discoverability principle. Section 5(2) of the Limitations Act creates a presumption that a person with a claim discovered the claim on the day the act or omission, on which the claim is based, took place unless the contrary is proved. Section 21 of the Limitations Act prohibits adding a party to an action after the limitation period for that action has expired.
[23] If the main action is statute barred by the expiration of a limitation period, the derivative Family Law claim is also statute barred by the expiration of the limitation period, the plaintiff’s action and the Family Law claim are both subject to the principle of discoverability: Wilson v. Arseneau 2012 ONSC 2879, 111 O.R. (3d) 56 at paragraphs 18-22 and 25-26.
[24] The plaintiff must lead evidence to demonstrate efforts she made to ascertain the information which forms the subject of the amendment and explain why even with due diligence this information could not have been obtained within the limitation period: Hamilton (City) v. Svedas Koyanagi Architects. Inc. [2009] O.J. No. 1039 at para. 11, Ont. S.C.J. In effect, the plaintiff has the onus to provide an evidentiary record to demonstrate that discoverability is a triable issue; the evidentiary threshold is not an onerous one; and it is only in rare circumstances that the issue of discoverability is resolved on a motion to add a party: Wakelin v. Gourley 2005 23123 (ON SC), [2005] O.J. No. 2746 (Ont. Master) aff’d [2006] O.J. No. 1552 (Ont. Div. Ct.). If the plaintiff fails to demonstrate that discoverability is a triable issue then the amendment will be refused: Wong v. Alder, 2004 8228 (ON SC), [2004] O.J. No. 1575 70 O.R. (3d) 460 (Ont. Master) at paragraph 45-46, aff’d 2004 73251 (ON SCDC), 76 O.R. (3d) 237 (Ont. Div. Ct.). The focus is on the actions of the plaintiff not the actions of counsel: Conflitti et al v Dhaliwal et. Al., 2010 ONSC 3218, [2010] 194 A.C.W.S. (3d) 769, (Ont.Sup. Ct.) at paragraph 33.
d) Discussion
[25] It is not disputed that the plaintiff commenced her action within the limitation period. The defendant objects to the plaintiff’s motion to amend on the basis that the limitation period for bringing the Family Law claim has expired and therefore the amendment is statute barred. The defendant argues that the Family Law claim was discovered or ought to have been discovered prior to the expiration of the limitation period and therefore the amendment should not be permitted.
[26] The plaintiff submits that the amendment does not raise a new cause of action. The plaintiff relies on the discoverability principle to delay the date when the limitation period for commencing the Family Law claim begins to run. The plaintiff submits that the issue of whether she will be successful in the application of discoverability principle is a matter for the trial judge. Therefore, leave to amend should be granted with leave to the defendant to amend the Statement of Defence to plead a discoverability.
[27] There is evidence from the plaintiff’s new counsel of when he discovered that Trisha and Sasha should be added as plaintiffs. Strictly speaking, Trisha and Sasha are the plaintiffs on the Family Law claim. The focus of the analysis is not on what counsel knew or did. The focus is on the plaintiffs’ Trisha and Sasha’s knowledge and actions. Trisha and Sasha may be under age and the plaintiff’s knowledge and actions on the issue may be relevant. There is no evidence from Trisha, Sasha or the plaintiff to satisfy the requisite evidentiary threshold. In fact, there is no evidence from any of them on this motion.
[28] The plaintiff has failed to provide any relevant evidence. This is one of those rare cases where it is plain from the record that discoverability is not a triable issue. Therefore, the plaintiff’s motion to amend is dismissed.
[29] There is another reason to dismiss the motion. A plaintiff seeking to rely on the application of the discoverability principle must plead discoverability in the amended Statement of Claim. Failure to do so is fatal to the motion to amend the Statement of Claim: Parsons et al v. The Estate of Peter Deutscher et al [2008] O.J. No. 3014 (Ont. Sup. Ct. (Div Ct) at para. 5.
[30] The plaintiff has failed to plead discoverability in her proposed amended Statement of Claim. Her motion is also dismissed for this reason.
[31] Should the parties be unable to agree on costs a 3 page costs outline shall be filed within 30 days.