Court File and Parties

COURT FILE NO.: CV-12-461607 DATE: 20210209 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mahfuza Aktar, Fatematuz Zakia, Ashraful Nabil, both minors by their litigation guardian, Mohammed Nazrul Islam and Mohammed Nazrul Islam, personally, Plaintiffs AND: Canada Cartage Diversified GP. Inc., Canada Cartage System Limited Partnership, Penske Truck Leasing Canada Inc., Trailcon Leasing Inc., and Leonard Cummer, Defendants AND: City of Toronto, Third Party

BEFORE: Darla A. Wilson J.

COUNSEL: J. Howie & D. Levy, counsel for the Plaintiffs A. Sciacca, counsel for the Defendants R. Traves & N. Kolos, counsel for the Third Party

HEARD: February 4, 2021

Endorsement

[1] This is a claim for damages for personal injuries sustained by the Plaintiff Mahfuza Aktar (“Mahfuza”) on August 26, 2010. On that date, she was a pedestrian walking on the sidewalk on Danforth Avenue. The Defendant Leonard Cummer was operating a transport truck owned by the corporate Defendants when he executed a right hand turn from Victoria Park Avenue on to Danforth Avenue. In doing so, it is not disputed that he struck a traffic light pole which fell over. The pole struck Mahfuza, who was pregnant.

[2] The Statement of Claim was issued in August 2012. The Statement of Defence was delivered in December 2013. The Defendants issued a Third Party Claim against the City of Toronto (“the City”) on January 9, 2014. The Statement of Defence to the Third Party Claim was served in April 2015. Examinations for discovery were held and the action was set down for trial. The trial is fixed to commence with a jury March 22, 2021 for a period of 50 days.

[3] I have been case managing this action and will be the trial judge. In late 2020, Mr. Traves advised that the City would be seeking to amend its Statement of Defence to the Third Party Claim to plead two defences that arise from the City of Toronto Act, 2006, SO 2006, c. 11, Sch. A. It seeks to plead: “The City pleads that the Defendants failed to provide written notice as required by Section 42(6) of the City of Toronto Act, 2006, supra, and pleads that this Third Party Claim is statute barred.” The City also seeks to plead: “The City pleads that if the accident referred to in the Statement of Claim occurred as alleged, then any damages were caused by the siting or arrangement of a material or object adjacent to or on an untraveled portion of the highway and as such, this Third Party Claim is statute barred pursuant to section 42(4) of the City of Toronto Act, 2006, supra.”

[4] The Plaintiffs take no position on the motion. The Defendants oppose the motion and submitted that the motion ought to be heard following the trial of the main action. I disagree with that approach. In my view, pleadings must be regularized prior to trial so that all parties know the case they must meet. Pleadings frame the issues in the action and if potential amendments are left until the trial of the Third Party action, in my view, there would be uncertainty about the issues and the ambit of the evidence that could be led at the trial of the main action. I declined to defer the motion and fixed the motion date. The parties delivered motion materials and I heard the motion today.

Positions of the Parties

Defendants

[5] Counsel for the Defendants submits that they are not alleging there is actual prejudice arising from the amendments sought. However, the case law is clear that the passage of time creates presumed prejudice which the moving party must rebut, and it has failed to do so. Furthermore, the defences sought to be added have no merit and are bound to fail so they ought not to be permitted on a motion.

[6] Mr. Sciacca acknowledges that the Defendants did not give notice to the City of the Third Party Claim; however, he submits that it was not required because a contribution and indemnity claim is not a claim for damages as set out in section 42(6) of the Act. Counsel relies on Ukranian Credit Union Ltd. v Nesbitt, Burns Ltd. where the Court of Appeal noted that a claim for contribution and indemnity is not an action for damages. Because the lack of notice, defence cannot possibly succeed, counsel argues that it ought not to be allowed.

Third Party

[7] The City submits that the language of Rule 26.01 is mandatory unless the responding party can demonstrate prejudice that cannot be compensated for by costs or an adjournment. On the issue of prejudice, the Defendants have the onus of demonstrating irremediable prejudice and they have failed to discharge the onus. Counsel notes that this is not a case where the amendments require investigations that should have been done or rely on memories of witnesses whose memories may be faded over time. Furthermore, the success of a defence at trial is not the test for an amendment to pleadings; the defences are meritorious and ought to be permitted.

Analysis

[8] Rule 26.01 states, “On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” It is important to recognize that the language is mandatory.

[9] I will deal first with the issue of prejudice. The affidavits filed fail to disclose any actual prejudice. I do not accept on the facts of this case that the timing of the amendment leads to presumed prejudice. Each case where a “late amendment” is sought must be examined on its particular facts to determine if prejudice arises. Amendments where parties seek to advance new allegations or new causes of action are different than the instant case. Certain types of amendments rely on the memory of witnesses and with the passage of time, it may be that memories fade or witnesses are no longer available. In such circumstances, there may be prejudice which the court must take into consideration when determining if the amendments should be granted.

[10] In this case, the City seeks to rely on 2 legislative defences: failure to give notice; and the fact that the traffic light pole was on an untravelled portion of the roadway and as such, there can be no liability under the Act. Whether such defences will ultimately be successful will not turn on investigations or evidence from witnesses; the trial judge will make the determination by interpreting the provisions in the Act, based on the facts as found at the trial. I do not accept that the proposed amendments result in prejudice, actual or presumed.

[11] I turn to the second argument of counsel for the Defendants: that the proposed amendments cannot succeed and therefore ought not to be granted. I do not accept this submission. Whether the failure to give notice or the argument that the City cannot be found liable for an accident that occurred on the untravelled portion of the highway will succeed at trial is not for my determination on this motion. Clearly, pleadings that are improper, that fail to disclose a valid defence or are frivolous ought not to be permitted. However, the amendments sought are not frivolous. There is jurisprudence to support the position of the City: see Ouellette v. Hearst (Corp. of the Town).

[12] Counsel for the Defendants submits that there is a sufficient record before me on this motion to enable me to determine that the proposed amendments have no possibility of success. I disagree. This submission was made to Boswell J. in Nesbitt v. Jeffery, 2018 ONSC 6448 on a motion to add a Third Party. I can say it no better than Justice Boswell when he rejected the submission and observed, “This argument is easily disposed of. This is not a motion for summary judgment, where the merits of the action would be carefully considered. I lack a sufficiently detailed evidentiary record to draw any conclusions about the merits of the proceeding one way or the other.” I agree with these comments. The test for an amendment to a pleading is not whether it will be successful at trial.

[13] Counsel for the Defendants argues that the Third Party Claim is not a claim for damages but rather, seeks contribution and indemnity and thus, section 42(6) of the Act does not apply. Again, that is a matter of interpretation based on the evidentiary record, to be decided by the trial judge. It is not a reason to deny the amendments sought.

Conclusion

[14] The motion to amend the Third Party’s Statement of Defence to the Third Party Claim is granted. The order shall go and the amendments shall be in the form set out in Schedule A of the draft order.

Date: February 9, 2021