Court File and Parties

COURT FILE NO.: CV-16-124

DATE: 2019-10-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

X.H. and C.H. Plaintiffs

– and –

Her Majesty the Queen in Right of Ontario and OPP Sergeant Randy Cota Defendants

COUNSEL:

Cara Valiquette, for the Plaintiffs Daniel Zacks, for the Plaintiffs

Joshua Tallman, for the Defendant Her Majesty the Queen in Right of Ontario Norman Groot, for the Defendant OPP Sergeant Randy Cota

HEARD: October 28, 2019

Endorsement

wood j.:

[1] The plaintiffs seek leave to amend their statement of claim, and a ban on the publication of information disclosing their identity. The defendant Randy Cota seeks an order that his outstanding motion for summary judgment be heard prior to the plaintiff’s motion and for costs thrown away for defending the existing claims. For the reasons that follow, the plaintiffs’ motion is granted, and the defendant’s motion is granted in part.

[2] The plaintiffs’ action as presently constituted is for damages from Cota who was an Ontario Provincial Police Officer and from the Crown as his employer. The grounds alleged are negligence, harassment, extortion, intimidation, misfeasance in public office and infliction of mental suffering by the defendant Cota as a result of C.H.’s rejection of his sexual advances and his refusal to accept that refusal.

[3] The amendment sought by the plaintiffs is the withdrawal of the claim for harassment and the addition of claims for battery and sexual assault against the plaintiff C.H. The parties are agreed that these additional claims are exempted from the operation of the Limitations Act, by section 16(1)(a) of that statute. Therefore, the sole issue before the court on the leave to amend motion is whether the pleading amendment should be allowed now or postponed until the defendant Randy Cota’s motion for summary judgment has been decided.

[4] Mr. Cota cites two reasons for having that motion argued before the pleadings are amended. The first reason is that it has been outstanding for over a year. The second is that having it decided first will “significantly reduce the expense of discovery in this action”. Some background is required to provide a context in which to examine these assertions.

[5] This matter first came before the court in June 2018 when the plaintiffs sought to compel Mr. Cota to attend to be examined. Mr. Cota resisted this on medical grounds (he is battling stage three liver cancer), and on the basis that he wished a motion for summary judgment based on a Limitations Act defence to be heard first. The outcome of that skirmish was that Mr. Cota was permitted to bring his motion prior to being discovered. The motion was filed on August 17, 2018.

[6] Since that date it appears no action has been taken by either side. The plaintiffs have not responded to the motion and Mr. Cota has not sought a return date to have the motion heard. I can only conclude therefore, that each side has been content with the status quo. The plaintiffs have not had to defend a summary judgment motion and Mr. Cota has not had to submit to discovery.

[7] At my urging, counsel have now agreed to a timetable for the hearing of the motion, and examinations in aid thereof, so the issue becomes what would be the most efficient use of the court’s time and the parties’ resources.

[8] Mr. Cota argues that his motion for summary judgment will have to be re-drafted if the amendments are allowed before it is heard. While this is true the changes will be minimal unless he wishes to seek an order dismissing the new claims in addition to the existing ones. However, should he choose to pursue this course of action, the alternative to amending his existing motion, would be a second summary judgment motion to deal with the new claims after determination of the first. There is no saving or efficiency there.

[9] Mr. Cota further argues that a decision on the present motion would significantly reduce the cost of discovery in the action. Leaving aside the fact that this would only occur if the outcome of the motion were favourable to Mr. Cota, that point is easily covered by an order that allows the amendment but provides that discoveries occur after the disposition of the summary judgment motion.

[10] Rule 26.01 is mandatory. It provides that the court “shall” grant leave to amend a pleading unless there would be non-compensable prejudice. Mr. Cota has not alleged that this is the case and in fact concedes that the plaintiffs are entitled to the amendment. I conclude therefore that allowing the amendment prior to the hearing of Mr. Cota’s summary judgment motion will not cause any significant increase in expense to Mr. Cota and may well save the court and parties the cost of a second summary judgment motion on the new claims. For these reasons the amendment is allowed at this time.

[11] Should the amendment be allowed, Mr. Cota’s motion seeks an order “that the plaintiffs compensate the defendant Cota for the costs thrown away that have been incurred to date to defend against any claims, whether or not they are struck by this court pursuant to Mr. Cota’s motion for summary judgment”. I am frankly at a loss to understand the legal basis of this claim.

[12] Costs thrown away as a result of a pleadings amendment are properly awarded to compensate the opposing party for the time required to adjust her response to the amended claim. In this case no substantive change is required to the defendant Cota’s existing pleading. This is because the amendments allege entirely new causes of action not adjustments to existing ones. The only change required will be a response to the new claims. The time and place to claim costs for defending the action as originally constituted, would be after the successful conclusion of a summary judgment motion or trial.

[13] That said, there will be costs thrown away incurred by the defendant Randy Cota to redraft his statement of defence and motion for summary judgment. This work would not have been necessary, had the plaintiffs included the new claims in their original pleadings. Mr. Cota is therefore entitled to be compensated for this work. I fix those costs in the amount of $2000.00 inclusive of disbursements and HST.

[14] The plaintiffs seek a publication ban to prevent the name of the plaintiffs from being revealed. The defendant Randy Cota professes to be indifferent to whether or not a ban is ordered. However, he has filed material showing that the original claims have already been the subject of an article in the Toronto Star featuring a picture of the plaintiffs. He therefore questions the appropriateness of a ban and whether it is needed.

[15] The Supreme Court has repeatedly emphasised the fact that freedom of the press is a fundamental value in a free and democratic society. However, in cases where the privacy of an individual is central such as sexual assault some minimal infringement upon that freedom is justified. Using this reasoning, it has upheld the constitutionality of the Criminal Code’s prohibition against revealing a victim’s identity. Canadian Newspapers Co v Canada (Attorney General) 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122.

[16] In cases where an alleged assault is of a sexual nature the harm arising from the disclosure of the victim’s identity can be found objectively. It is not necessary for the party seeking the ban to lead evidence of its effect on that individual. A.B. v Bragg Communications Inc. [2012] 2. S.C.R. 567.

[17] In this case at the time the Star article was published the facts alleged were that Mr. Cota’s advances had been spurned by C.H. The new complaints allege sexual contact between them. This is a far more sensitive scenario and one with which C.H. would not wish to be identified.

[18] The plaintiffs have asked only for an order preventing the publication of information identifying her. The press may still attend the trial and report on the proceedings. I am satisfied that a limited order preventing the disclosure of C.H.’s identity is justified to prevent objectively discernable harm to her. The factual situation is such that revealing X.H.’s identity would identify his wife. Therefore, there will be an order that the publication of any material that could identity either of the plaintiffs is prohibited.

[19] The parties have agreed to the following schedule for the amendment of pleadings and the hearing of the defendant’s summary judgment motion.

(a) The Crown and Randy Coda are to serve and file statements of defence within 45 days of the date of release of these reasons.

(b) The plaintiffs are to respond to the summary judgment motion within 60 days of the close of the revised pleadings.

(c) The defendant Randy Coda will have 30 days from the receipt of the plaintiffs’ material to serve and file reply material.

(d) Examinations are to be completed within 60 days of the filing of the defendant’s reply.

There will be an order to go to that effect.

[20] As discussed at paragraph (9) above, there will also be an order that discoveries be scheduled within 60 days of the delivery of a decision in the summary judgment motion. In the event that the motion is withdrawn, abandoned or not set down for hearing within 60 days of the completion of 19 (d) above, discoveries are to occur within 60 days of the event terminating the motion.

[21] The parties may file written costs submissions within 30 days of the date of release of these reasons.

The Honourable Mr. Justice T.M. Wood

Released: October 31, 2019