Court File and Parties

COURT FILE NO.: 15-2643

DATE: 2019/05/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1353837 ONTARIO INC., Applicant

AND:

DEREK PIGOZZO AS CHIEF BUILDING OFFICIAL FOR THE CITY OF STRATFORD, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: John S. Doherty, Roberto D. Aburto and Jonathan Minnes for the Applicant

Patrick J. Kraemer and Michael van Bodegom for the Respondent, and for the proposed additional respondent Gerald Moore “as Interim Acting CBO for the City of Stratford”

HEARD: February 13, 2019

ENDORSEMENT

Introduction

[1] Before me is a motion by 1353837 Ontario Inc., (“the Applicant”), to amend its notice of application herein, brought pursuant to section 25 of the Building Code Act, 1992, S.O. 1992, c.23, (“the BCA”).

[2] That extant application, brought by the Applicant against the respondent Derek Pigozzo, a former Chief Building Official (or “CBO”) of the City of Stratford, seeks, amongst other things:

• rescission, modification or alteration of an Unsafe Order issued in relation to a specified Stratford property on March 31, 2015, pursuant to s.15.9(4) of the BCA, (“the Unsafe Order”);
• court confirmation of the Applicant’s status as a person “affected” by the said Unsafe Order, e.g., a person “affected” by the Unsafe Order who accordingly should have been entitled to formal service of that order pursuant to s.15.9(5) of the BCA;[^1]
• court confirmation of the Applicant’s status as an “aggrieved” person; e.g., a person who “considers themself aggrieved by an order or decision made by the chief building official … under the BCA”, within the meaning of s.25(1) of the BCA, in relation to the Unsafe Order and CBO determination, pursuant to s.15.9(5) of the BCA, of persons “affected” by the Unsafe Order;[^2] and
• an order restraining demolition of structures on the relevant property and/or disposition of materials therein, pursuant to the Unsafe Order, pending court determination of the Applicant’s rights to such property and/or materials.

[3] The proposed amendments to that existing notice of application are set forth in a draft amended notice of application found at Tab 4 of the Applicant’s amended motion record. I will not replicate them in their entirety here. By way of summary, however:

• the Applicant seeks to add an additional respondent to its application; i.e., Gerald Moore, who assumed the role of Interim Acting CBO of the City of Stratford following Mr Pigozzo’s departure from his CBO position on or about October 31, 2017, and held that position until May of 2018;
• the Applicant proposes to seek, pursuant to section 25 of the BCA, rescission, modification or alteration of what is said to have been a “decision” of Mr Moore on February 22, 2018, that the Applicant was “not an aggrieved person in respect of the Unsafe Order”;
• under the heading “The February 22, 2018 Moore Decision”, the Applicant proposes to add various paragraphs expressing concerns about:
  • how that “decision” of Mr Moore was made;
  • the uncertain nature of the factual and evidentiary basis for that “decision” of Mr Moore;
  • certain developments as between the Applicant and the City of Stratford which the Applicant says Mr Moore should have taken into account in making his “decision”; and
  • the possible precedential value of decisions made by this Court, insofar as they “may be relied upon”, “going forward”, in relation to such matters as “future” BCA and building code orders, so as to affect the rights which the Applicant asserts in relation to the relevant property; and
• the Applicant seeks an order pursuant to Rule 39.03 of the Rules of Civil Procedure, (which contemplates a person being “examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing”), compelling Mr Moore to attend an examination.

Further background

[4] A considerable amount of material and evidence was filed, directly or indirectly by express reference, and by the Applicant in particular, in relation to the Applicant’s motion to amend its pleading.

[5] In my view, much of that material was quite extraneous and irrelevant to the determination of the issues immediately before the court, having regard to the nature of the motion.[^3]

[6] For present purposes, the broader context in which the motion has been brought generally may be summarized as follows:

• This proceeding currently is one of three commenced in this court, in relation to a relatively large property located very near to the centre of the City of Stratford, and identified by its municipal address as 350 Downie Street.

• The property in question was used for industrial purposes that played an important role in the historic growth of the City of Stratford. In particular, from the 1870s to the 1960s, it was used by the Grand Truck railway as a locomotive repair facility which, at its height, employed approximately 40 percent of Stratford’s workforce in its cavernous buildings. In the 1960s, following a decline in the need for steam locomotives, the property and its facilities were transferred to Cooper-Bessemer, (a boiler manufacturer), and thereafter the property has been known locally as “the Cooper site”.

• The Cooper site was abandoned in the 1980s, after which the property has been the subject of a number of transfers and plans for contemplated redevelopment.

• Those transfers included, in 2001, acquisition of the Cooper site by 1353837 Ontario Inc., (i.e., the Applicant), whose president is Mr Lawrence Ryan. The Applicant and Mr Ryan contemplated transformation of the Cooper site into a facility to be known as “Ryan’s Railway Centre”. They say that goal nevertheless was undermined and effectively thwarted improperly by the City of Stratford through direct and indirect means; allegations which the city firmly denies.

• The Cooper site thereafter was the subject of proceedings under the Expropriations Act, R.S.O. 1990, c.E.26, which resulted in the City of Stratford expropriating the property from the Applicant on June 15, 2009. (The Applicant was the registered owner of the Cooper site immediately prior to that date, and the City of Stratford became the registered owner immediately thereafter.) That expropriation and an associated compensation proceeding have proved to be highly contentious, involving protracted proceedings before the Ontario Municipal Board,[^4] and appellate proceedings in the Divisional Court.[^5]

• Additional related disputes between the City of Stratford on the one hand, and the Applicant and Mr Ryan on the other, also are the subject of protracted ongoing civil litigation in this court; i.e., in a proceeding formally identified as Stratford court file no. CV-02-726. Despite its age, that proceeding still has not advanced beyond the pleadings stage, and currently is the subject of a reserved decision relating to whether the Applicant and Mr Ryan should be permitted to make certain desired amendments to their pleading.

• Prominent among the contentious issues being litigated between the City of Stratford, the Applicant and Mr Ryan, in the context of Stratford court file no. CV-02-726, is the legal effect of certain provisions of a Minutes of Settlement (“MOS”) agreement entered into between those parties on January 10, 2010. In particular, section 10 of that agreement, (in which the Applicant is referred to as “135”), reads as follows:

  Possession of the expropriated lands (Parts 13, 14 and 17 on Plan 44R-3154)(the “Lands”) shall be transferred to the City upon payment of the sums payable under paragraphs 5, 6 and 7 above. 135 and Ryan agree that the City shall be free to deal with the Lands and all buildings and structures thereon and the St Patrick Street Lot (Parts 3, 4, 5, 10, 11, 12, 14 and 15 on Plan 44R3154) and all buildings and structures thereon as the City chooses, in its sole and absolute discretion, without any interference or objection whatsoever by 135, Ryan, or any other party acting on his or their behalf, including, without limitation, in respect of any demolition of structures or buildings on the Lands or environmental remediation of the Lands or the Parking Lot lands or the sale and disposition of the Lands or Parking Lot lands to any person. For greater clarity, this section does not affect 135’s rights under section 41 and 42 of the Expropriations Act.[^6] In addition, as of the date of this agreement, 135 and Ryan agree that they, or neither one of them or any other party acting on his or their behalf, shall take any steps to initiate proceedings under the Ontario Heritage Act or any other heritage legislation in respect of the Lands and/or the structures located thereon. [Emphasis added.]

• Relying on the provisions of section 10 of the MOS agreement indicating that the Applicant’s “rights under section 41 and 42 of the Expropriations Act” were not to be affected, the Applicant and Mr Ryan contend that the Applicant has a right to return of the property, and therefore an ongoing interest in the property and the buildings on it. In particular, (and at the risk of over-simplification), the Applicant and Mr Ryan assert that the property was expropriated by the City of Stratford for the purpose of creating a University of Waterloo campus, that subsequent developments have made it clear the entire property was not required for that purpose, that use of the property for any other purpose will constitute abandonment within the meaning of sections 41 and 42 of the Expropriations Act, supra, and that operation of those legislative provisions should result in the property and its buildings being returned to the Applicant.

• For its part, the City of Stratford contends that the Applicant and Mr Ryan do not have a proper understanding of the circumstances, or of the true meaning and operation of sections 41 and 42 of the Expropriations Act, supra, and that the Applicant and Mr Ryan in fact have no rights of return in relation to the property, nor any interest in the property. Relying on the provisions of section 10 of the MOS agreement ostensibly giving the city unfettered discretion over the property, (including matters relating to demolition, environmental remediation and/or sale and disposition), the City of Stratford contends that the Applicant and Mr Ryan have persisted for years in wrongful attempts to interfere with the city’s efforts to redevelop the property, some of which has since been devoted to a satellite campus of the University of Waterloo, and the remainder of which is the subject of ongoing discussion and planning.

• It was in that environment of ongoing and highly contentious litigation that the Unsafe Order was issued, in relation to the Cooper site, on March 31, 2015. In that regard:

  • The relevant order indicates that it was issued pursuant to s.15.9 of the BCA to address the condition of the Cooper site at 350 Downie Street. In particular:
    • The order noted that specified engineering reports had identified a number of observed unsafe conditions at the property in relation to “roof systems, wall systems, floor systems and floor slabs within and outside the remaining large structure”, including “falling debris dangers”, exacerbated by the fact that persons were not prevented from accessing the face of the structure around the majority of the structure’s perimeter.
    • The order specified remedial action that had to be completed by May 31, 2015, including the installation of fencing reviewed and accepted by the CBO prior to installation, and the removal of any loose materials that could fall beyond the fencing.
    • The order bears a signature that, on its face at least, seems consistent with the name David Carroll; i.e., a former CBO of the City of Stratford, who retired shortly after March 31, 2015.
  • The Unsafe Order was promptly served on the City of Stratford, (the registered owner of the property), and was posted at the Cooper site, pursuant to s.15.9(5) of the BCA. It apparently was not formally served on the Applicant, although it came to the attention of the Applicant and Mr Ryan shortly thereafter.
  • It is the position of Mr Pigozzo that the Unsafe Order was indeed issued by Mr Carroll, in a proper and valid manner, and that matters concerning the relevant Unsafe Order thereafter were dealt with by Mr Pigozzo, who assumed the role of CBO for the City of Stratford in April of 2015, after Mr Carroll’s retirement.
  • It is also the position of Mr Pigozzo that the Unsafe Order had nothing whatsoever to do with the litigious dispute between the City of Stratford, the Applicant and Mr Ryan, but was prompted instead by legitimate CBO concerns about unsafe conditions at the Cooper Site. In that regard, counsel for Mr Pigozzo have emphasized the recognized duty of a CBO to act in an independent manner, (e.g., without direction from the municipality appointing him or her), in the execution of his or her enforcement duties imposed directly by the Legislature.[^7]

• For their part, Mr Ryan and the Applicant viewed the issuing of the Unsafe Order with suspicion and alarm. In that regard:

  • Doubts were expressed as to the validity of the Unsafe Order; e.g., with the Applicant and Mr Ryan questioning whether it actually had been signed by Mr Carroll, (and retaining handwriting experts in that regard), and suggesting that it had been issued under a regulation that was no longer in force.
  • Doubts were expressed as to whether the Unsafe Order had been justified; e.g., with the Applicant and Mr Ryan questioning whether there were inspections carried out by qualified individuals, and/or whether there were sufficient and proper grounds to issue the Unsafe Order.
  • Doubts were expressed about whether Mr Pigozzo had the required qualifications to address the Unsafe Order.
  • More generally, the Applicant and Mr Ryan were very concerned that the Unsafe Order was in fact part of an inappropriate strategy on the part of the city to advance its litigious position vis-à-vis the Applicant and Mr Ryan by indirect means. For example, it was said that the Unsafe Order was issued for one or more collateral purposes, such as:
    • devaluing the property and buildings to the benefit of the city, in the ongoing expropriation proceedings;
    • facilitating demolition of buildings on the property and/or sale of the property to private developers without the involvement of the Applicant and Mr Ryan; and/or
    • reinforcing a legal position that the Applicant had no legal interest in the property so as to make it a person “affected” by the Unsafe Order, and thereby entitled to formal service of the order pursuant to s.15.9(5) of the BCA.
  • In relation to that last example of a suggested collateral purpose behind the Unsafe Order, the Applicant and Mr Ryan had concerns that, if the CBO’s failure to provide the Applicant with formal service of the Unsafe Order on that occasion went unchallenged, the Applicant might similarly receive no timely notice of any further orders or directions issued by the CBO in relation to the Cooper site.
  • The Applicant accordingly issued its aforesaid notice of application herein on or about April 28, 2015.

• On September 30, 2015, Mr Pigozzo formally rescinded the Unsafe Order, effective immediately, “without prejudice to the issuance of further orders or such steps as may be required or necessary in the future” pursuant to the BCA. He did so by way of a letter sent to the City of Stratford, (still the registered owner of the property), noting that the Unsafe Order was being rescinded in consideration of:

  • subsequent inspections;
  • the opinion of the city’s consultant;
  • the current condition of the site; and
  • the remedial actions that had been taken, including the construction of a perimeter fence and the securing of loose material on the roof.

• This proceeding, (not formally involving Mr Ryan or the City of Stratford as parties), and the proceeding having Stratford court file no. CV-02-726, thereafter apparently lingered, without any notable progress, into 2017.

• On January 4, 2017, Regional Senior Justice Heeney then made an order pursuant to Rule 37.15, at the request of the parties to both proceedings, so that both proceedings and motions therein could thereafter be case managed by the Local Administrative Judge (“LAJ”) for Stratford.

• In my capacity as the LAJ for Stratford, I thereafter conducted a number of case management conferences in relation to both proceedings to discuss contemplated motions and the manner in which they would proceed, having regard to the reality that all such motions were likely to require lengthy special appointment hearings, and such motions realistically can be heard in Stratford, (where the Superior Court does not sit constantly), only during allocated trial sittings. In that regard:

  • It was determined that this proceeding would be addressed initially by a motion brought by Mr Pigozzo, (and opposed by the Applicant), to have the application dismissed or stayed on the grounds that it is now moot, having regard to the fact that the Unsafe Order has been rescinded and no longer exists.
  • Prior to hearing that motion, a preliminary issue nevertheless developed as to whether the Applicant was entitled to numerous desired productions, (including various consulting reports, inspection reports and other documents said to have been attached to the Unsafe Order), as well as a desired examination of Mr Pigozzo under oath. In that regard, the Applicant took the position that it was entitled to such measures as of right, to defend the motion asking to have the application dismissed on the grounds it was moot. Mr Pigozzo took the position that such measures were not needed to address the narrow basis on which the application was said to be moot, (i.e., rescission of the Unsafe Order giving rise to the application pursuant to s.25 of the BCA), and that the Applicant’s continued insistence on productions and examination in this proceeding was in fact an abuse of process by the Applicant to obtain documents and information it had been unable to secure directly from the city in the context of Stratford court file no. CV-02-726.
  • In the result, I directed, in my role as the case management judge, that before hearing Mr Pigozzo’s “mootness motion”, the court would hear a preliminary motion, brought by the Applicant, to determine whether or not it was entitled to the productions and examination it sought in advance of that mootness motion being heard.
  • Before that preliminary motion to determine the Applicant’s entitlement to productions and an examination before the mootness motion could be heard in its entirety, matters then took further complicating turns that postponed the hearing of that motion. In particular:

    • As noted above, Mr Pigozzo left his position as CBO for the City of Stratford on or about October 31, 2017, to take up another position with the City of Vaughan. At or about that time, Mr Moore became acting CBO for the City of Stratford.

    • On February 14, 2018, Mr Ryan communicated directly with Mr Moore by telephone and by email, expressing his continued concern “with respect to permits and orders for the Cooper site”, and pressing Mr Moore “to address [Mr Ryan’s] status as an aggrieved party, resulting from [his alleged] rights of return and rights pursuant to the Minutes of Settlement which the city and …Chief Building Official for the city [were] obliged to deal with”. In that regard, Mr Ryan indicated that he would be satisfied that day with a statement from Mr Moore confirming that Mr Ryan would be considered, on the basis of his being an aggrieved party, without prejudice, to be “kept in the loop prior to any new orders being issued either under the Building Code Act or the Code or site work being done”.[^8]

    • The aforesaid email from Mr Ryan to Mr Moore prompted a series of further communications on February 20, 2018. In particular:

      • At 8:56am, Mr Moore sent a responding email to Mr Ryan, indicating that, as the CBO for the city, he had legal representation as he took part in the execution of his independent statutory duties, and that any correspondence regarding the Cooper site would have to “go through them”. Mr Moore also expressed an intention to speak with his legal representative before responding.
      • At 9:55am, Mr Ryan sent Mr Moore a further email, asking Mr Moore to identify his lawyer.
      • At 9:56am, Mr Moore sent Mr Ryan a further email, asking Mr Ryan to direct his inquiry to Patrick Kraemer, as Mr Moore’s legal representative.[^9]
      • At 10:07am, Mr Ryan sent Mr Moore a further email asserting that Mr Kraemer was “not the CBO for Stratford”, that Mr Kraemer “cannot deal with [Mr Ryan’s] concerns”, and that “only [Mr Moore] can do that”. Mr Ryan noted that Mr Moore already had indicated a willingness to respond after speaking with his lawyer, and pressed Mr Moore for an indication of when the two men could meet. Mr Ryan also indicated that, in the meantime, he took no issue with Mr Moore’s lawyer being at the contemplated meeting, or writing to Mr Ryan on Mr Moore’s behalf, although Mr Ryan also indicated that he could not understand why that would be necessary.

    • The aforesaid email communications between Mr Ryan and Mr Moore led to the sending of a letter, on February 22, 2018, from Mr Moore’s lawyers to the lawyers representing the Applicant and Mr Ryan in relation to litigation concerning the Cooper site. That particular letter and its attachment, (i.e., a copy of the chain of emails exchanged between Mr Ryan and Moore on February 14, 2018, and the email sent by Mr Moore at 8:56 am on February 20, 2018), lie at the heart of the Applicant’s current motion to amend its notice of application herein, in the manner outlined above. The substantive paragraphs of the relevant letter read in their entirety as follows:

      We enclose an exchange of email between your client and Gerald Moore, the City’s Chief Building Official. We are retained to act for Mr Moore in respect of the Cooper site and the outstanding appeal of the Unsafe Order relating to that property.

      In response to your client’s inquiry, we can advise that it is Mr Moore’s position that 1353837 Ontario Inc. is not an aggrieved person in respect of the Unsafe Order.

      [Emphasis added.]

    • The Applicant has taken the position that the aforesaid correspondence sent by Mr Moore’s lawyers on February 22, 2018, constitutes a “decision” by Mr Moore as CBO for the City of Stratford under the BCA, in respect of which the Applicant is entitled to pursue an appeal pursuant to s.25(1) of the BCA. Again, (for ease of reference), s.25(1) of the BCA reads as follows:

      25. (1) A person who considers themselves aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

      [Emphasis added.]

    • When the preliminary motion to determine the Applicant’s entitlement to productions and an examination of Mr Pigozzo came on for hearing on March 1, 2018, (in advance of Mr Pigozzo’s motion to have this proceeding dismissed or stayed on the grounds of mootness), counsel for the Applicant indicated an intention to request leave to amend the Applicant’s pleadings herein to address “new and recent developments”. I was told that, if the amendments were permitted, that might necessitate reconsideration of:

      • whether the mootness motion would continue, and if it did, further reconsideration of the material needed to be filed in relation to that motion; and
      • in turn, whether the material on the preliminary evidence motion would need to be changed or supplemented.[^10]

    • On consent of the parties, hearing of the preliminary motion accordingly was adjourned sine die, to allow for further party discussion of those issues, and the possibility of a new timetable to address such issues.

  • On March 13, 2018, the Applicant then filed its original notice of motion, in relation to the motion now before me, seeking leave to amend its notice of application herein in the manner outlined above.
  • On March 15, 2018, 1353837 Ontario Inc. also then commenced a third proceeding relating to the Cooper site; i.e., Stratford court file no. 2896/18. In that proceeding, (commenced by way of a notice of application naming “Gerald Moore, as Interim Acting Chief Building Official for the City of Stratford” as the sole respondent), the relief sought by 1353837 Ontario Inc. against Mr Moore, pursuant to section 25 of the BCA, included the following:
    • an order rescinding, modifying or altering the “decision of Interim Acting Chief Building Official Gerald Moore dated February 22, 2018, that 135 is not an aggrieved party (the ‘Moore decision’) with respect to the March 31, 2015 Unsafe Order, currently the subject of an outstanding application (the ‘Unsafe Order’) (Court File No. 15-2643)”;
    • an order that Mr Moore “provide his rationale for his decision”;
    • an order that “1353837 Ontario Inc. be confirmed as an aggrieved party or affected party, as the property and building thereon, the Cooper site, was expropriated from the Applicant by the City of Stratford and the compensation remains involved”, and that “pursuant to Minutes of Settlement dated January 10, 2010, entered into between the Applicant and the City of Stratford in proceedings in connection with the expropriation, including an environmental protocol, the Applicant shall participate in preparation of plans and specification relating to the intended work/demolition to be done on site, … including environmental investigations”;
    • an order pursuant to s.25(7) of the BCA “that demolition of any part of the structure not be done, until [the] appeal was disposed of”;
    • in the alternative, “an order that, if demolition is determined by this court, to be permitted, the steel superstructure of the 1907 and 1949 annex, including all reclaimable cladding and other materials be dismantled in a way that permits the steel frame and materials to be reinstalled on another site and delivered to the Applicant or, in the alternative, stored until a determination can be made as to the Applicant’s ownership rights pursuant to section 41 and 42 of the Expropriations Act”; and
    • an order pursuant to Rule 39.03 of the Rules of Civil Procedure, compelling Gerald Moore to attend for an examination by the Applicant’s counsel.
  • On April 26, 2018, the Applicant amended its notice of motion herein, but solely for the purpose, (apart from indicating the date of the amendment), of including an indication of a further supporting affidavit of Mr Ryan upon which the Applicant intended to rely.
  • On October 22, 2018, Regional Senior Justice Thomas made a further order pursuant to Rule 37.15, bringing the new proceeding by the Applicant against Mr Moore under unified case management with the other two proceedings relating to the Cooper site.

• In the course of further case management conference discussions, concerns were expressed about multiplicity of proceedings. Concerns also were expressed about perceptions by Mr Pigozzo, Mr Moore and the City of Stratford that the Applicant and Mr Ryan seemed intent on using or abusing BCA applications against the city’s independent CBOs, (to which the city was not a party), to indirectly obtain productions, examinations and other substantive relief, (e.g., a court finding that the Applicant retained an interest in the Cooper site pursuant to section 10 of the Minutes of Settlement described above), that the Applicant and Mr Ryan had been unable to obtain directly in their litigation with the City of Stratford; concerns which prompted the city to indicate that it contemplated seeking leave to intervene in the proceedings against Mr Pigozzo and Mr Moore. Such allegations were firmly denied by the Applicant and Mr Ryan.

• In the result, it was agreed and decided that the proceeding in Stratford court file no. 2896/18, (i.e., the Applicant’s new appeal pursuant to section 25 of the BCA, in relation to what the Applicant characterized as a “decision” by Mr Moore on February 22, 2018), would be “parked” voluntarily, at least until the court had an opportunity to address the Applicant’s motion herein to amend its pleading in a manner that raised issues which, on their face at least, substantially overlapped with those raised in Stratford court file no. 2896/18.

• The motion herein was then argued before me on February 13, 2019.

[7] With that background and context in mind, I turn next to a consideration of the law governing motions of this nature.

Motions for leave to amend pleadings and add parties – General principles

[8] By the time of the hearing before me, it was agreed by the parties that the Applicant’s motion herein was not governed strictly by Rule 26.01, (which mandates amendments subject to certain conditions), but also by Rule 5.04; a rule which effectively incorporates elements of Rule 26.01, but also addresses the joinder of parties and grants the court a measure of discretion as to whether amendments joining a party to an original proceeding should be permitted.

[9] General principles in that regard include the following:

• Rule 26.01 reads as follows: “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 an adjournment”. [Emphasis added.] However:

  • as expressly noted in the rule, the amendments must not result in irremediable prejudice;
  • the amended pleading must be legally tenable; and
  • the proposed amendments must otherwise comply with the rules of pleading.[^11]

• As far as prejudice is concerned:

  • The onus of proving prejudice lies on the party alleging it unless a limitation period has expired, in which case the onus shifts and the party seeking the amendment must lead evidence to explain the delay and displace the presumption of prejudice.[^12]
  • Where there is an allegation of actual prejudice, (i.e., that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment, such as death of a material witness or destruction of essential files), specific details and evidence must be provided, allowing the court to take a “hard look” at the merits of the allegation.[^13]
  • However, at some point a delay in seeking an amendment will be so lengthy and the justification so inadequate that prejudice to the responding party will be presumed.[^14]
  • The “prejudice” contemplated by Rule 26.01 does not include prejudice resulting from possible success of the plea on its merits, or the fact that the amended plea may increase the length or complexity of the trial; e.g., such that parties have to produce additional documents, or incur additional expense.[^15]
  • There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendment and not from some other source.[^16]

• In relation to the requirement that the amended pleading be legally tenable:

  • Whether or not proposed amendments are legally tenable is determined through application of the principles developed under Rule 21.01(1)(b) to determine if a pleading discloses no reasonable cause of action.[^17]
  • In that regard, the court has regard to the facts alleged in the proposed amendments, (including documents incorporated into the proposed amendments by way of reference),[^18] and those alleged facts are taken to be true, provable and accepted, unless they are patently ridiculous, based on assumptive or speculative conclusions, or otherwise manifestly incapable of being proven.[^19]
  • The test for determining whether a pleading discloses a reasonable cause of action is whether it is plain and obvious that the claim has no reasonable prospect of success. If there is a chance that the claim might succeed, then the claimant should not be driven from the judgment seat. Neither the length and complexity of the issues, the novelty of the claim, nor the potential for the respondent to present a strong defence should prevent the claimant from proceeding with his or her case. Pleadings disclose no reasonable cause of action only if the claim therein is certain to fail because it contains a radical defect. The purpose of the test is to eliminate claims that are hopeless.[^20]
  • While a pleading amendment must be reviewed to ensure it would withstand scrutiny under Rule 21.01(1)(b) and the other general rules of pleading, consideration of proposed amendments does not engage a Rule 20 summary judgment merits analysis.[^21]

• As for whether proposed amendments otherwise comply with the rules of pleading, there are many such rules, but they include the following:

  • Pleadings are to contain a concise statement of the material facts on which the parties relies for a claim, but not the evidence by which those facts are to be proved.[^22]
  • A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.[^23]
  • A pleading should not contain argument.[^24]
  • A pleading should not contain allegations of fact that are irrelevant, or facts which have marginal probative value outweighed by prejudicial effect.[^25]
  • A court should not permit pleadings which may prejudice or delay the fair trial of an action, pleadings which are scandalous, frivolous or vexatious, or pleadings which constitute an abuse of the process of the court.[^26]

• Where proposed amendments seek to add a party to existing proceedings, the most applicable rule is not Rule 26.01 but Rule 5 of the Rules of Civil Procedure.[^27] Rule 5 reads in part as follows:

  5.02 (2) Two or more persons may be joined as … respondents where,

  (a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

  (b) a common question of law or fact may arise in the proceeding;

  (c) there is doubt as to the person or persons from whom the … applicant is entitled to relief;

  (d) damage or loss has been caused to the same … applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the … applicant, and there is doubt as to the person or persons from whom the … applicant is entitled to relief …; or

  (e) it appears that their being joined in the same proceeding may promote the convenient administration of justice. …

  5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding. …

  5.03 (4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party. …

  5.03 (6) The court may by order relieve against the requirement of joinder under this rule. …

  5.04 (2) At any stage of a proceeding the court may by order add … a party … on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. …

  5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

  (a) order separate hearings;

  (b) require one or more of the claims to be asserted, if at all, in another proceeding; …

  (d) stay the proceeding against a … respondent, pending the hearing of the proceeding against another … respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other … respondent; or

  (e) make such other order as is just.

  [Emphasis added.]

• Addition of a party engages a slightly different analysis because Rule 5.04(2) is discretionary and not mandatory. In particular, as the wording is similar to Rule 26.01, it therefore is subject to the same tests applicable to motions to amend pleadings pursuant to Rule 26.01. However, even when those tests have been met, the court retains a discretion to refuse the addition of a party. Such discretion is not whimsical, but based on principles of fairness and judicial efficiency. For example, it would be appropriate to withhold consent to proposed amendments if contemplated joinder will unduly complicate or delay the proceeding, if any circumstances exist which would justify relief against joinder, and/or if the addition of a party appears to be an abuse of process.[^28]

• In determining whether or not to permit amendments that would add a party to a proceeding, pursuant to Rule 5.04(2), the applicable considerations and tests may be summarized as follows:[^29]

  • the proposed amendments must satisfy all tests applicable to Rule 26.01 of the Rules of Civil Procedure;[^30]
  • joinder should be appropriate under Rule 5.02(2), or be required under Rule 5.03;
  • joinder should not be inappropriate under Rule 5.03(6) or 5.05;[^31] and
  • the addition of a party will not be permitted if it is shown to be an abuse of process.[^32]

[10] With the above principles in mind, I turn to their application in the particular circumstances of this case.

Analysis

[11] In that regard, I turn first to the fundamental prerequisites for proposed amendments that are common to Rule 26.01 and Rule 5.04(2) of the Rules of Civil Procedure.

[12] In my view, it has not been established that the proposed amendments would result in irremediable prejudice; i.e., in the sense that the proposed amendments, if permitted, would result in Mr Pigozzo and/or Mr Moore having lost any opportunity in the litigation, such as death of a material witness or destruction of essential files. In that regard:

• There is no suggestion that any applicable limitation period has expired. As noted above, the proposed amendments rely on s.25(1) of the BCA which, in specified circumstances, permits an appeal of an “order or decision” made by a chief building official under the Act “within 20 days after the order or decision is made”. In this case, the alleged “decision” the Applicant seeks to challenge is said to have been made on February 22, 2018, and the applicant served its notice of motion to amend its pleading herein on March 13, 2018; i.e., within 20 days.
• I am mindful of the reality that the motion to amend the Applicant’s pleading comes a number of years after the Applicant initiated this proceeding on April 28, 2015. However, as noted above, there has been very little progress in the formal litigation until recently, and the matter really has not yet moved beyond the pleading stage. In my view, that reality, coupled with the timing of the “new” development upon which the Applicant relies, (i.e., the alleged “decision” of Mr Moore on February 22, 2018), and the lack of any significant delay thereafter in the Applicant seeking to make its proposed amendments, also negates any suggestion that any prejudice should be presumed in the circumstances.
• I think the onus of proving irremediable prejudice, within the meaning of Rule 26.01 and Rule 5.04(2), sufficient to prevent making of the Applicant’s proposed amendments, accordingly lies on Mr Pigozzo and Mr Moore, who oppose the amendments.
• I agree with the Applicant that Mr Pigozzo and Mr Moore have not satisfied their onus in that regard. In particular, while their counsel makes broad reference to the “passage of years” and Mr Pigozzo’s “change of employment”, in my view no specific details or supporting evidence has been provided that would allow the court to take a “hard look” at the merits of any suggestion of prejudice. While I have no doubt that permitting the amendments inherently would increase the length, complexity and costs of this proceeding, such concerns do not constitute irremediable prejudice in the sense required, for the reasons outlined above.

[13] I nevertheless do think that the proposed pleading amendments are not legally tenable, in the sense that, approaching that question in the manner outlined above, it is plain and obvious that the claim the Applicant seeks to advance through the proposed amendments has no reasonable prospect of success. My reasons in that regard include the following:

• As noted above, the Applicant’s proposed amendments are fundamentally premised on an assertion that Mr Moore has made a “decision” which the Applicant is permitted to appeal to this court pursuant to s.25(1) of the BCA.
• The “decision” upon which the Applicant relies, in that regard, is the correspondence, (including its attachment), sent by Mr Moore’s counsel to counsel for Mr Ryan and the Applicant on February 22, 2018. For the reasons outlined above, that documentation forms part of the facts alleged by the Applicant which must be accepted and considered in determining whether the proposed amendments disclose a reasonable cause of action.
• While the court is obliged to accept the facts alleged by the Applicant, it is not obliged to accept the legal characterization of those facts; i.e., that the correspondence is a “decision” falling within the ambit of section 25 of the BCA, so as to enable the Applicant to appeal that “decision” to this court and claim related relief. In my view, that suggested characterization is fundamentally mistaken, and constitutes a “radical defect” in the Applicant’s proposed pleading amendments.
• When one reviews the correspondence sent by Mr Moore’s lawyers on February 22, 2019, it obviously suggests the making a “decision” by Mr Moore, (or perhaps more than one “decision”), in the lay sense of that term; i.e., “a conclusion or resolution reached after consideration”.[^33] In particular:
  • Mr Moore “decided” to respond to recent telephone and email communications from Mr Ryan, pressing Mr Moore to address Mr Ryan’s status as an aggrieved party;
  • Mr Moore “decided” to respond to Mr Ryan’s communications through his lawyers; and
  • Mr Moore “decided” to express his position that 1353837 Ontario Inc. was not an “aggrieved person” in respect of the Unsafe Order; i.e., the order which, on its face at least, was expressly issued pursuant to s.15.9 of the BCA by one or more CBOs for the City of Stratford who held that position prior to Mr Moore.
• However, for present purposes, the meaning and ambit of the word “decision” obviously is not defined solely by its lay definition. Whether or not what the Applicant seeks to characterize as a “decision” is one giving rise to rights of appeal pursuant to s.25(1) of the BCA is a matter of statutory interpretation applied to the relevant circumstances alleged by the Applicant.
• As emphasized by the Supreme Court of Canada, today there is only one principle or approach to statutory interpretation; i.e., that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. That preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute.[^34]
• In my view, regard to context is particularly important in interpreting provisions of the BCA, which was intended by the Legislature to be a complete code regarding the regulation of construction, maintenance and demolition of buildings, or any material part thereof.[^35]
• As noted above, s.25(1) of the BCA, upon which the Applicant fundamentally relies for its proposed amendments, reads as follows: “A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit), may appeal the order or decision to the Superior Court of Justice within 20 days.” [Emphasis added.]
• Read in context, s.25(1) accordingly was not intended to give a wide-ranging legislative right to challenge any possible type of “order or decision”. To the contrary, the plain and ordinary meaning of the words used by Legislature, read in context, carry numerous limitations and implications.
• First, the right of appeal extended by s.25(1) of the BCA obviously was limited to one in respect of an “order or decision” made by a “chief building official”, a “registered code agency” or an “inspector”, each of which is expressly defined in s.1(1) of the BCA. Section 25(1) of the BCA accordingly does not speak to an appeal from an “order or decision” to be made by the court under the scheme enacted by the Legislature. That has significance in the present case, insofar as the Applicant purports to exercise a right of appeal, pursuant to s.25(1) of the BCA, relating to Mr Moore’s purported “decision” as to whether the Applicant should be considered an “aggrieved person” in relation to the Unsafe Order issued on March 31, 2015. In that regard:

  • The Legislature uses the term “aggrieved” only once in the BCA, and that is in the provisions of s.25(1) of the BCA which effectively indicate and define who has standing to bring an appeal to this court pursuant to those provisions.

  • However, the question of who has standing pursuant to s.25(1) of the BCA is not a decision made or to be made by a chief building official, a registered code agency or an inspector, as those officials otherwise effectively would be given the power to immunize their own decisions from any right of appeal, which obviously is not what the Legislature intended.

  • The question of who has standing pursuant to s.25(1) of the BCA is instead a decision to be made by the court, which effectively is called upon by the Legislature to make a determination as to whether a would-be appellant’s subjective belief that he or she is a person “aggrieved” by an order or decision made by a CBO, registered code agency or inspector under the BCA is objectively reasonable. In particular, while the test for appellate standing pursuant to s.25(1) of the BCA is framed in a subjective manner, on its face, courts have read in an objective element, the satisfaction of which is to be decided by the court:

    Though the section appears on its face to express a purely subjective test, the court requires some threshold to be applied in order to maintain the integrity of the process, focus scarce judicial resources, and ensure that the appeal procedure is not open to misuse by those who simply have some personal axe to grind and “feel” aggrieved without any nexus of interest or effect to the decision.[^36]

  • Anyone, including a chief building official, obviously may form a view as to how the court should decide questions of standing for the purposes of s.25(1) of the BCA. A chief building official may go so far as to express what essentially is a legal opinion in that regard, (i.e., as to how that issue should be decided by the court), and do so in writing. In my view, however, a CBO who does so has not made a “decision” capable of being appealed pursuant to s.25(1) of the BCA. A determination of standing, for the purposes of s.25(1) of the BCA, is simply not a decision for the CBO to make, or which the CBO may make. Again, the contemplated and proper decision maker in that regard is the court.

  • In my view, that conclusion is reinforced by the manner in which the relevant legislation is structured. In particular, it seems clear to me that s.25(1) of the BCA was enacted to permit appeals of decisions made pursuant to other provisions of the Act. It is non-sensical to think that s.25(1) was intended to create rights of appeal in relation to decisions made under the subsection itself.

  • In the present case, to the extent the Applicant wishes to appeal a purported “decision” made pursuant to s.25(1) of the BCA, that is not a decision that was made or could be made by Mr Moore as a CBO under the Act, and in any event is not a type of “decision” capable of being appealed pursuant to s.25(1) of the BCA.

• Second, the rights of appeal provided in s.25(1) of the BCA are expressly limited to a decision “made” by a CBO, registered code agency or an inspector; i.e., an extant decision, relating to an established set of facts, in respect of which an official actually was called upon to make a determination pursuant to the BCA and did so. In that regard:
  • No rights of appeal are granted in relation to possible or prospective future decisions, even when a CBO, registered code agency or an inspector goes so far as to indicate, in writing, his or her intentions as to how he or she is likely to decide if and when formally called upon to make such a decision.
  • A useful illustration of that fundamental point is provided by this court’s decision in Caisse populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), supra, wherein a landowner contemplated the removal of certain encroachments, (i.e., an open steel staircase and other items), that extended onto his remaining property from adjacent property he had sold. The landowner entered into direct discussions with a city representative to ascertain whether the city’s CBO would issue a demolition permit permitting the landowner’s removal of the relevant encroachments. Those discussions led to the city’s solicitor sending the landowner a letter, indicating that no approval for the contemplated demolition would be given without a replacement stairway in place. Without making any formal application in the prescribed form for a demolition permit pursuant to section 8 of the BCA, calling upon the CBO to make a formal decision under s.8(2.2) of the legislation as to whether such a demolition permit should be issued, the landowner sought to appeal the alleged “decision” communicated to him in the city solicitor’s correspondence. This court held that, in such circumstances, there had been no “decision” by the CBO which could be the subject of an appeal pursuant to s.25(1) of the BCA, and therefore no basis upon which an order could be made by the court to make such a decision in the landowner’s favour; i.e., a decision to issue the desired demolition permit. A mere indication by legal counsel of how a CBO intended to make a decision, if and when called upon to do so, was not a “decision” under the BCA giving rise to any right of appeal pursuant to s.25(1) of the BCA.[^37]
  • In my view, such an approach is eminently sensible, accords with the relevant legislative scheme and purpose, and is also consistent with the approach taken by our courts to appellate review of decisions made pursuant to the BCA pursuant to s.25(1) of the legislation. In that regard:
    • The BCA is replete with indications that officials acting thereunder were expected to address situations that are both varied and inherently variable.[^38] Whatever course of action an official may be contemplating in relation to a formal determination to be made in the future, he or she accordingly has and should have the ability to revisit his or her initial thoughts when making a formal determination based on the precise facts prevailing at the time a formal decision needs to be made. Were it otherwise, the ability of such officials to take changing circumstances and all information relevant to their decisions into account would be constrained, and frustrate the purpose of the Act to make decisions appropriate to evolving circumstances.
    • Our courts have emphasized that the standard of appellate review applied to decisions taken by officials under the BCA is very much dependent on the nature of the particular decision in question. In some cases, the decision will simply involve a question of law, in which case the decision will be reviewed on a standard of correctness. However, many decisions will involve questions of mixed fact and law within the official’s area of expertise, and therefore are reviewed on a standard of reasonableness.[^39] The reasonableness of an official’s exercise of statutory discretion self-evidently cannot be decided in a factual vacuum, based on various hypotheticals situations that depend on facts which may or may not exist in the future. It therefore makes sense to limit appeals to decisions that have been made under the Act, in relation to precise and prevailing fact situations that effectively crystallized at the time officials were called upon to consider specific situations, and make formal determinations pursuant to the BCA.
    • More generally, as emphasized by our court of appeal, courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems.[^40]
  • In short, the right of appeal conferred by s.25(1) of the BCA does not permit appeals in relation to decisions that may or may not be made by a CBO in the future, even if a CBO provides an indication of what he or she may contemplate doing in that regard.
  • That has obvious significance in the present case, to the extent the Applicant and Mr Ryan are concerned about such matters as:
    • whether Mr Moore or other CBOs of the City of Stratford will make determinations in the future recognizing Mr Ryan and/or the Applicant as persons “affected” by any future orders or decision made under the BCA in relation to the Cooper site, which in turn would lead to them being given formal notice of any such orders or decisions; and/or
    • whether Mr Moore or other CBOs of the City of Stratford will, in the future, regard Mr Ryan and/or the Applicant as “aggrieved” persons in respect of any future orders or decisions made under the BCA in relation to the Cooper site – although, for the reasons already outlined, in my view that is not a determination for Mr Moore or other CBOs of the City of Stratford to make.
  • Moreover, as a matter of fact, (accepting the truth of the facts pleaded by the Applicant in its proposed pleading, including the relevant “decision” correspondence sent on February 22, 2018, incorporated into the Applicant’s proposed amendments by reference), Mr Moore did not purport to make a decision of any kind relating to the future. He instead communicated, through his lawyers, only a view that the Applicant was “not an aggrieved person in respect of the Unsafe Order”. [Emphasis added.] The reference accordingly was only to a specific past decision, made by one or more former CBOs of the City of Stratford. On its face, at least, the relevant correspondence contains no expression of any intention by Mr Moore to make any future orders or decisions under the BCA relating to the Cooper site in any particular manner.
  • In the circumstances, no relevant decision has been “made” in relation to the future, and no relevant decision has been “made” by Mr Moore. There accordingly is no “decision” made by Mr Moore capable of being appealed pursuant to s.25(1) of the BCA, and this court has no ability, pursuant to s.25(1), to render an appellate decision as to how any future decisions under the BCA should be made by Mr Moore.
• Third, the rights of appeal granted by s.25(1) of the BCA are expressly limited to appeals of an order or decision made by a chief building official “under the Act”; i.e., to an order or decision a chief building official is empowered and directed to make pursuant to the provisions of the legislation, and only to such orders and decisions. In that regard:
  • Read in context, I think the plain and ordinary meaning of the words “order or decision”, used by the Legislature in s.25(1) of the BCA, refers to the specified types of orders and determinations, expressly identified within the Act, wherein a chief building official is specifically empowered and called upon to make various but clearly identified types of orders or determinations.[^41]
  • Indeed, a chief building official only exercises his or her role as such pursuant to the BCA, and he or she can only exercise powers and perform duties in accordance with the BCA and building code.[^42]
  • That limitation is reinforced by the provisions of s.25(4), which reads as follows: “On an appeal, [i.e., an appeal pursuant to s.25(1) of the BCA], a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official … ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official. …” [Emphasis added.] As our Divisional Court has emphasized, a judge exercising appellate jurisdiction pursuant to s.25(1) of the BCA has no powers other than those which were possessed by a CBO or inspector, and no discretion if that discretion was not enjoyed by the CBO or inspector.[^43]
  • As noted above, the particular legislative authority an official exercises, in making an “order or decision” under the BCA, is also vitally important to a determination of the standard of review to be applied by the court in any review of that decision. Depending on the nature of the particular BCA authority or power being exercised, the standard may be one of correctness, or the more deferential standard of reasonableness, having regard to the special expertise of officials entrusted with the exercise of the specific regulatory authority entrusted to them by the Legislature pursuant to the BCA.
  • In my view, for all such reasons it therefore is important if not essential for an appeal commenced pursuant to s.25(1) of the BCA to identify, with precision, the particular legislative authority underlying the alleged “decision” a party seeks to appeal.
  • That has relevance in this case, as the Applicant has not, in its proposed amendments, indicated the relevant authority said to have been exercised by Mr Moore in making his alleged “decision” which the Applicant seeks to appeal. In that regard:
    • To the extent the Applicant relies on an alleged decision by Mr Moore that the Applicant is “not an aggrieved party”, reference presumably is being made to s.25(1) of the BCA which, again, is the only instance in which the Legislature makes use of the term “aggrieved” anywhere in the BCA. However, for the reasons outlined above, the authority to make such standing decisions is not that of a chief building official, registered code agency or an inspector under the Act. It is a decision making authority possessed by the court.
    • Reading the Applicant’s proposed pleading generously, it might be argued - particularly since the proposed amendments are to be added to existing pleadings requesting a confirmation that the Applicant be confirmed as “an aggrieved or affected party”, (emphasis added) - that the Applicant was intending to appeal a decision that it was not determined to be a person “affected” by the Unsafe Order”, pursuant to s.15.9(5) of the BCA, so as to entitle it to service of the Unsafe Order. However, any determination or decision in that regard clearly was made by Mr Carroll and/or Mr Pigozzo, well before Mr Moore assumed his position as interim CBO for the City of Stratford. There accordingly would seem to be no logical rationale for adding Mr Moore as a respondent to answer for that determination, particularly when the claim, (if indeed such a claim is being made), already has been formally advanced against Mr Pigozzo in the Applicant’s current pleadings.
  • In the particular circumstances of this case, there accordingly has been no identified and relevant decision made by Mr Moore “under [the] Act” on which to base an appeal pursuant to s.25(1) of the BCA.

[14] Again, for such reasons, I think the pleading amendments proposed by the Applicant are not legally tenable. In my view, they suffer from a “radical defect” that makes it plain and obvious they have no reasonable prospect of success. In particular, the “decision” the Applicant wishes to appeal is not an appealable “decision” within the meaning of s.25(1) of the BCA, and/or was not a decision made by Mr Moore.

[15] The claims for consequential relief based on that purported “decision” are similarly untenable, insofar as they depend on that faulty premise. For example, there is no legal basis for this court to compel disclosure of the factual or evidentiary basis for a “decision” that is not a decision capable of being appealed to this court pursuant to s.25(1), or for this court to fault Mr Moore for any alleged failure to take certain matters into account in making any such alleged decision.

[16] My finding that the proposed pleadings amendments are not legally tenable is a sufficient basis on which to deny the Applicant permission to make the proposed amendments.

[17] However, I also have additional concerns, in any event, about compliance of the proposed amendments with the rules of pleading. My concerns in that regard include the following:

• In my view, it is neither necessary nor appropriate for a party to include, in its pleading, a request for procedural relief, (such as an order pursuant to Rule 39.03 of the Rules of Civil Procedure), which may or may not be required during the course of the litigation. As noted above, the purpose of a pleading is to assert a substantive claim, and the material facts relied upon in support of that claim. The Rules of Civil Procedure thereafter govern how that substantive claim and its underlying factual allegations are tested and brought to trial. Because those rules exist and are available to parties regardless of whether or not they are mentioned in a pleading, the pleading of such rules not only clutters a pleading unnecessarily but is inherently irrelevant.
• The proposed amended pleading inserts seven new paragraphs between the original pleading’s paragraphs 47 and 48, and thereafter effectively renumbers what originally were paragraphs 48, 49 and 50 of the original pleading without indicating the renumbering via appropriate underlining, in accordance with Rule 26.03 of the Rules of Civil Procedure. The proposed amended pleading similarly alters, without appropriate underlining indications, the lettering of sub-paragraphs within what was originally paragraph 50 of the initial pleading, and what is paragraph 57 in the proposed amended pleading. While obviously a formality, such failures do make it more difficult to track and comment upon, with clarity, proposed amendments.
• In my view, paragraphs 51 and 52 of the proposed pleading, in addition to having questionable relevance, clearly include the pleading of evidence as well as argument, neither of which belongs in a pleading.
• In my view, the proposed pleading’s paragraph 53 reference to alleged conduct of the city has no apparent relevance to the Applicant’s proposed claim against Mr Moore.
• In my view, paragraph 54 of the proposed amended pleading is also argument that does not properly belong in a pleading.

[18] Moreover, beyond the concerns already noted, there are additional considerations which would incline me, if necessary, to refuse the Applicant’s desired amendments pursuant to my residual discretion in applying Rule 5.04(2) of the Rules of Civil Procedure. In that regard:

• It seems abundantly clear that the Applicant’s fundamental concern is a desire for affirmation that it still has an interest in the Cooper site property, based on the arguments noted above; i.e., reliance on provisions of section 10 of the Minutes of Settlement reached between the Applicant, Mr Ryan and the City of Stratford, and the suggested operation of sections 41 and 42 of the Expropriations Act, supra. A secondary but related concern, of importance to the Applicant and Mr Ryan, is a desire for notice in relation to each and every order or decision, (such as the Unsafe Order), made by a CBO of the City of Stratford in relation to the Cooper site.
• However, the reality is that those issues already are being litigated in proceedings before the court; i.e., in the extant proceeding herein against Mr Pigozzo, and vis-à-vis the City of Stratford in Stratford court file no. CV-02-726. In other words, while the Applicant’s claim against Mr Pigozzo and desired claim against Mr Moore request relief arising out of the same transaction or occurrence, and raise common questions of fact and/or law, joinder of claims against Mr Moore to this existing proceeding is simply not necessary for the effective adjudication of the issues the Applicant is raising.
• In my view, expanding the existing litigation to assert essentially duplicative claims against Mr Moore, in relation to the Unsafe Order, accomplishes nothing whatsoever apart from possible expansion of the Applicant’s rights of examination to Mr Moore as an additional party. As noted above, where the addition of a party effectively is for the sole purpose of obtaining discovery from that party, that is an abuse of process which militates against the granting of discretionary relief pursuant to Rule 5.04(2).
• Beyond such concerns, the simple reality is that the proposed amendments, (which in my view add nothing substantive to the broader litigation exercise between the parties for the reasons outlined above), already have disrupted and no doubt would continue to disrupt the progress of the discussed and contemplated schedule and plan for finally moving these case managed proceedings forward to a conclusion. In my view, that too militates against the granting of discretionary relief permitting the proposed amendments pursuant to Rule 5.04(2). The proposed joinder of the Applicant’s existing claim against Mr Pigozzo and desired claim against Mr Moore would not promote the convenient administration of justice.
• Having regard to such considerations and the particular circumstances of this case, I accordingly would exercise my discretion to relieve against the joinder contemplated by the Applicant’s proposed amendments.

[19] For such reasons, I think the proposed amendments not only cannot be permitted, but also should not be permitted.

Conclusion

[20] For the reasons outlined above, the Applicant’s motion to amend its pleading in the proposed manner is dismissed.

[21] I am mindful that the same reasons arguably might warrant a dismissal or stay of the Applicant’s separately commenced proceeding against Mr Moore; i.e., the proceeding in Stratford court file no. 2896/18, the nature of which seems duplicative of the proposed amendments in this proceeding, in significant respects.

[22] In my view, however, that would not be a stay contemplated by the provisions of Rule 5.05(d) of the Rules of Civil Procedure. In particular, for the reasons outlined above, I do not think this is a situation where Mr Moore necessarily should be bound by findings made at the hearing of the Applicant’s claims vis-à-vis Mr Pigozzo.

[23] Moreover, the question of whether or not the Applicant’s separately commenced proceeding against Mr Moore should be dismissed or stayed was not the subject of any focused argument during the hearing before me on February 13, 2019.

[24] If the parties cannot agree on the manner in which that separate proceeding should be approached, in the wake of this ruling, one or both obviously may take appropriate measures to bring that matter before the court.

Costs

[25] Because my decision in relation to the Applicant’s motion to amend its pleading in this proceeding was reserved, the parties were unable to make any submissions regarding costs, having regard to the outcome of the motion.

[26] It is always preferable for parties to discuss and agree on cost resolutions acceptable to all concerned.

[27] However, if the parties are unable to reach an agreement on entitlement and/or quantum in relation to such cost issues:

a. The respondent Mr Pigozzo and proposed respondent Mr Moore may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. The Applicant then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the written cost submissions tendered by Mr Pigozzo and Mr Moore; and

c. Mr Pigozzo and Mr Moore then may serve and file, within one week of receiving any responding written cost submissions from the Applicant, reply written cost submissions not exceeding two pages in length.

[28] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

“Justice I.F. Leach”

Justice I.F. Leach

Date: May 8, 2019

[^1]: With the exception of s.15.3(4) of the BCA, which permits further appeals to the court by a person “affected” by specified appeal decisions of a property standards committee, the term “affected” is used consistently throughout the BCA as the standard to be used when determining the appropriate ambit of service of various types of orders made pursuant to the BCA. See, for example:

• subsection 13(2) of the BCA, in relation to service of orders not to cover specified property;
• subsection 14(2) of the BCA, in relation to service of “stop work” orders;
• subsection 15(3) of the BCA, in relation to service of building code (“BC”) non-conformity orders;
• subsection 15.7(7) of the BCA, in relation to service of dangerous BC non-conformity emergency orders;
• subsection 15.9(5), of the BCA, in relation to service of unsafe orders;
• subsection 15.9(6) of the BCA, in relation to service of occupation orders; and
• subsection 15.10(.2) of the BCA, in relation to service of emergency orders.

[^2]: Subsection 25(1) of the BCA, permitting appeals to this court by a “person who considers themselves aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act”, except “a decision under subsection 8(3) not to issue a conditional permit”, is the only provision of the BCA that makes use of the term “aggrieved”.

[^3]: As noted in more detail below, the evidentiary material to be considered by the court on a motion to amend pleadings pursuant to Rule 26.01, or in this case pursuant to Rule 5.04, is constrained. More generally, having regard to considerations of efficiency and proportionality, emphasized by Rules 1.04(1) and 1.04(1.1, not every attendance before the court should be approached as a platform to embark on a wide-ranging account of the extensive history and nature of the highly contentious disputes and resulting litigation, relating to the relevant property, as between the Applicant, its principal Mr Ryan, the City of Stratford and its building officials.

[^4]: See, for example, 1353837 Ontario Inc. v. Stratford (City) (2013), 109 L.C.R. 207 (O.M.B.).

[^5]: See 1353837 Ontario Inc. v. City of Stratford (Corporation), 2018 ONSC 71 (Div.Ct.).

[^6]: Sections 41 and 42 of the Expropriations Act, supra, read as follows:

Abandonment of expropriated land

41 (1) Where, at any time before the compensation upon an expropriation is paid in full, the land or any part thereof is found to be unnecessary for the purposes of the expropriating authority or if it is found that a more limited estate or interest therein only is required, the expropriating authority shall so notify each owner of the abandoned land, or estate or interest, who is served or entitled to be served with the notice of expropriation, who may, by election in writing,

(a) take the land, estate or interest back, in which case the owner has the right to compensation for consequential damages; or

(b) require the expropriating authority to retain the land, estate or interest, in which case the owner has the right to full compensation therefor. R.S.O. 1990, c. E.26, s. 41 (1).

Revesting

(2) Where all the owners elect to take the land, estate or interest back under clause (1) (a), the expropriating authority may, by an instrument signed by it and registered in the proper land registry office and served on each owner, declare that the land or part thereof is not required and is abandoned by the expropriating authority or that it is intended to retain only such limited estate or interest as is mentioned in the instrument, and thereupon,

(a) the land declared to be abandoned revests in the owner from whom it was expropriated and those entitled to claim under the owner; or

(b) in the event of a limited estate or interest only being retained by the expropriating authority, the land so revests subject to such limited estate or interest. R.S.O. 1990, c. E.26, s. 41 (2).

[^7]: See, in that regard, s.1.1(6) of the BCA, wherein the Legislature makes clear the “Role of chief building officials”, including the obligation, expressly set forth in s.1.1(6)(d), “to exercise powers and perform duties in an independent manner and in accordance with the standards established by the applicable code of conduct”. [Emphasis added.]

[^8]: See the email from Mr Ryan to Mr Moore, sent on February 14, 2018, at 9:30am, also indicating that it was being sent further to a discussion between the two men that morning, during which Mr Moore expressed a willingness to meet with Mr Ryan.

[^9]: As noted in the indications of representation set forth at the outset of this endorsement, Mr Kraemer is one of the lawyers representing both Mr Pigozzo and Mr Moore in relation to these matters.

[^10]: See my handwritten endorsement dated March 1, 2018.

[^11]: See, for example: Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576 (C.A.), at paragraph 37; Plante v. Industrial Life Alliance Life Insurance Co., 2003 CanLII 64295 (ON SC), [2003] O.J. No. 3034 (Master), at paragraph 21; and 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, [2017] O.J. No. 241 (C.A.), at paragraph 25.

[^12]: See, for example: Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (C.A.), at p.748.

[^13]: See King’s Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841 (C.A.), at paragraphs 5-7; and 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., supra, at paragraphs 25 and 31-32.

[^14]: See Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (ON CA), [2006] O.J. No. 669 (C.A.), at paragraph 6; and 1588444 Ontario Ltd. v. State Farm and Casualty Co., supra, at paragraph 25.

[^15]: See Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049 (C.A.), at paragraph 2; and Andersen Consulting v. Canada (Attorney General), supra, at paragraphs 36-37.

[^16]: See Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517, [2009] O.J. No. 2642 (C.A.), at paragraphs 20-21; Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.), at paragraph 65; and 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., supra, at paragraph 25.

[^17]: See Plante v. Industrial Alliance Life Insurance co., supra, at paragraphs 21-22; and Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc. (2012), 2012 ONSC 3818, 111 O.R. (3d) 580 (S.C.J.), at paragraph 24.

[^18]: See Rule 25.06(7) of the Rules of Civil Procedure; Montreal Trust Co. of Canada v. Toronto-Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont.Gen.Div.), at paragraph 3; and Web Offset Publications Ltd. v. Vickery (1999), 1999 CanLII 4462 (ON CA), 43 O.R. (3d) 802 (C.A.), at paragraph 3, leave to appeal refused [1999] S.C.C.A. No. 460..

[^19]: See Plante v. Industrial Alliance Life Insurance Co., supra, at paragraphs 17-18; Schembri v. Way, 2012 ONCA 620, [2012] O.J. No. 4356 (C.A.), at paragraphs 27 and 33; and Paton Estate v. Ontario Lottery and Gaming Corp. (2016), 2016 ONCA 458, 131 O.R. (3d) 273 (C.A.), at paragraph 12.

[^20]: See Hunt v. T & N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at paragraph 36; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paragraph 19; Paton Estate v. Ontario Lottery and Gaming Corp., supra, at paragraphs 12, 30 and 44.

[^21]: See Plante v. Industrial Alliance Life Insurance Co., supra, at paragraphs 17, 19 and 22.

[^22]: See Rule 25.06(1) of the Rules of Civil Procedure.

[^23]: See Rule 25.06(2) of the Rules of Civil Procedure.

[^24]: See, for example, Jacobson v. Skurka (2015), 2015 ONSC 1699, 125 O.R. (3d) 279 (S.C.J.), at paragraphs 27, 43, 47, 52, 53, 55 and 61.

[^25]: See, for example: Del Cane v. Alcinii (1998), 24 C.P.C. (4th) 321 (Ont.Master); Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644, [2008] O.J. No. 3674 (C.A.); Canadian National Railway v. Brant, 2009 CanLII 32911 (ON SC), [2009] O.J. No. 2661 (S.C.J.); and Jacobson v. Skurka, supra, at paragraphs 50, 59, 63 and 64.

[^26]: See Rule 25.11 of the Rules of Civil Procedure.

[^27]: See Schembri v. Way, supra, at paragraph 24.

[^28]: See Plante v. Industrial Alliance Life Insurance Co., supra, at paragraph 25.

[^29]: The following helpful summary is drawn from Plante v. Industrial Alliance Life Insurance Co., supra, at paragraph 27, and was echoed in Sycor Technology Inc. v. Kiaer, 2006 CanLII 2763 (ON SC), [2006] O.J. No. 392 (Master), at paragraph 7.

[^30]: This includes the same approach to determining whether the amendments, proposing to add a party, are tenable at law; see Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (H.C.J.); and A. Mantella & Sons Ltd. v. Ontario Realty Corp., 2008 CanLII 23953 (ON SC), [2008] O.J. No. 2024 (S.C.J.), affirmed 2009 ONCA 115, [2009] O.J. No. 457 (C.A.). Similarly, increased work and legal expense is not the type of prejudice that might prevent adding parties; see Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955, [2016] O.J. No. 655 (Div.Ct.).

[^31]: The addition of a party should not unduly delay or complicate a hearing or cause undue prejudice to the other party. In a case managed proceeding, it also may be appropriate to withhold consent if it will cause significant disruption to the court ordered schedule. See Belsat Video Marketing Inc. v. Astral Communications Inc., 1999 CanLII 1092 (ON CA), [1999] O.J. No. 343 (C.A.); and Plante v. Industrial Alliance Life Insurance Co., supra, at paragraph 27.

[^32]: Abuse of process will exist where the addition of a party is for an improper purpose such as solely to obtain discovery from that party, to put unfair pressure on the other side to settle, to harass the other party, and/or for purely tactical reasons. See MacRae v. Lecompte (1983), 1983 CanLII 3052 (ON SC), 143 D.L.R. (3d) 219 (Ont.H.C.); National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen.Div.); and Plante v. Industrial Alliance Life Insurance Co., supra.

[^33]: See the Concise Oxford Dictionary, 11th ed., at p.371.

[^34]: See Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 599, at paragraphs 26-27.

[^35]: See Caisse populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), [2007] O.J. No. 778 (S.C.J), at paragraph 22.

[^36]: See Rotstein v. Oro-Medonic (Township), [2002] O.J. No. 4990 (S.C.J.), at paragraph 18; and Southgate Public Interest Research Group v. Southgate (Township), [2002] O.J. No. 4601 (S.C.J.), at paragraph 84.

[^37]: See Caisse populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), supra, at paragraphs 25-28.

[^38]: To cite but a few examples in that regard:

• pursuant to ss.8(2) and 8(3) of the BCA, a CBO initially may deny but then grant a building permit when noted deficiencies are addressed;
• pursuant to s.8(3) of the BCA, a CBO make issue conditional building permits relating to particular stages of construction, in order to monitor compliance as building progresses;
• pursuant to s.8(10) of the BCA, a CBO may revoke an issued building or demolition permit in light of changing conditions;
• pursuant to ss.12(7), 14(3.3), 15.2(1)(b) of the BCA, 15.9(5.4)a CBO may find that non-compliance orders, stop work orders, property standards non-conformity orders and unsafe orders have been addressed by remedial measures and satisfied, such that they should discharged or rescinded.

[^39]: See Vandenheede Farms Ltd. v. Norfolk (County), [2011] O.J. No. 1037 (S.C.J.); Runnymede Development v. 1201262 (2000), 2000 CanLII 22337 (ON SC), 47 O.R. (3d) 374 (S.C.J.); Rotstein v. Oro-Medonte (Township), supra; and Southgate Public Interest Research Group v. Southgate (Township), supra.

[^40]: See Tamil Co-operative Homes Inc. v. Arulappah, 2000 CanLII 5726 (ON CA), [2000] O.J. No. 3372 (C.A.).

[^41]: A review of the BCA makes it clear that the Legislature very specifically empowered the officials identified in s.25(1) of the BCA to make numerous types of expressly identified orders; e.g., orders not to cover specified property, pursuant to section 13(1); “stop work” orders, pursuant to section 14(1); building code non-conformity orders, pursuant to s.15.2(2); dangerous building code non-conformity emergency orders, pursuant to s.15.7(1); unsafe orders, pursuant to s.15.9(4); orders respecting occupancy, pursuant to s.15.9(6); and emergency orders, pursuant to s.15.10. Similarly, the Legislature very specifically empowered the officials identified in s.25(1) of the BCA to make numerous types of expressly identified determinations; e.g., to decide whether or not a building permit should be issued or refused, pursuant to s.8(2.2); to determine whether a property conforms with prescribed property standards, pursuant to s.15(2); to determine whether a building is unsafe, pursuant to s.15.9; and, pursuant to the provisions noted in footnote 1 herein, to determine the persons “affected” by the orders noted above, so as to entitle those persons to formal service of such orders.

[^42]: See Caisse populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), supra, at paragraph 28.

[^43]: See Woodglen & Co. v. North York (City), [1984] O.J. No. 3320, at paragraph 10; and Birani Homes Ltd. v. Corp. of the City of London, [2015] O.J. No. 712 (S.C.J.), at paragraph 32.