Court File and Parties
COURT FILE NO.: CV-16-126574 DATE: 20210219 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Joseph Grech, Plaintiff – and – Michael Scherrer, Defendant
Counsel: Mr. Joseph Ziemba, for the Plaintiff Mr. Ari A. Lokshin, for the Defendant
HEARD: January 28 and 29, 2021
Reasons for Decision on Motion by the Defence to Amend its Statement of Defence
MCKELVEY J.:
Introduction
[1] The plaintiff brings this action based on an alleged assault by the defendant. In the Statement of Claim there are at least two incidents referenced. One occurred in July 2008 which involved an allegation that the defendant pushed the plaintiff and punched him in the face. The main incident in question, however, is an altercation which occurred on March 30, 2010 where there was a fight between the plaintiff and defendant. The plaintiff alleges that the defendant stabbed him in the forehead over his left eye with a plastic stick and proceeded to throw punches into his face.
[2] At paragraph 8 of the Statement of Defence, the defendant pleaded as follows:
- The plaintiffs description of the events of March 30, 2010 are exaggerated, misleading and inaccurate. The defendant, Michael Scherrer will provide his detailed version of the events at his discovery. Suffice to say that the defendant, Michael Scherrer, will allege the following:
(a) The plaintiff was at all times the aggressor;
(b) The defendant, Michael Scherrer, at all times tried to avoid the physical altercation; and
(c) The plaintiff did not suffer injuries of any type, whether physical or otherwise.
[3] This proceeding has been the subject of a trial. All of the evidence that is to be placed before the court has been heard. The only thing which remains is for the parties to complete their final submissions. During the course of submissions, the plaintiff raised an issue with respect to the adequacy of the defendant’s pleading stating that the defence has not specifically pleaded that the defendant acted in self-defence. The defendant has therefore brought a motion seeking to amend its Statement of Defence as follows:
- (a) The defendant pleads that at all times during the course of the March 30, 2010 altercation, the plaintiff was the aggressor and any intentional force used by the defendant against the plaintiff was employed in self-defence solely to prevent imminent harm to the defendant;
(b) The force used by the defendant during the course of the March 30, 2010 altercation was not excessive but rather was reasonable and proportionate to the harm that was threatened;
(c) Further or in the alternative, the plaintiff consented to physical altercation of March 30, 2010 and the defendant did not intend to cause serious physical harm to the plaintiff and did not in fact cause serious physical harm to the plaintiff;
(d) The defendant pleads and relies on the affirmative defences of self-defence and consent to the tort of battery.
[4] During the course of argument the defence withdrew its request to amend the Statement of Defence by pleading consent. Thus, the only issue before me is whether the defence should be allowed to revise its pleading to rely on the doctrine of self-defence.
[5] At the conclusion of argument I advised counsel that I had decided to allow the defence motion and that written reasons would follow. These are those written reasons.
[6] The defence relies upon an assertion that the issue of self-defence has been an issue from the commencement of the litigation. They make reference to the fact that in the original Statement of Defence the plaintiff is referred to as the “aggressor” and that the defendant attempted to avoid the physical altercation. They also refer to a pre-trial conference memo which they submitted in advance of trial which sets out the defence position as follows:
Mr. Scherrer takes the position that the plaintiff was the aggressor and Mr. Scherrer was acting in self-defence which would absolve Mr. Scherrer of any liability to the plaintiff.
[7] The defence also relies on its opening statement which was made at the beginning of trial in which the issue of self-defence was clearly raised to support their position on liability.
The Applicable Legal Principles
[8] Rule 26.01 of the Rules of Civil Procedure provides that,
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.
[9] The wording of the rule as well as the existing caselaw makes it clear that a court is required to grant leave to amend a pleading unless prejudice would result to the opposing party. The burden of showing prejudice lies with the party opposing the amendment. See Health Genetic Center Corp. v. New Scientist Magazine, 2018 ONSC 3675 at paras. 7-10.
[10] It is apparent that there has been no trial judgment in the action. We are still within a “stage of the action”; thus the issue which needs to be addressed is whether the plaintiff has been prejudiced as a result of the request for an amendment to the Statement of Defence.
[11] The plaintiff argues that self-defence is a defence which should be clearly stated in the pleadings if it is to be relied upon. The plaintiff argues that an entirely new theory is being presented with the proposed amendment to the statement of defence. The plaintiff argues that if the amendment is permitted, they will be prejudiced because the plaintiff will not have an opportunity to listen to the evidence on direct examination nor would he be allowed the challenge this evidence through cross-examination. The plaintiff has submitted that the proposed amendments would fundamentally and retroactively alter the issues at stake in the action and in the trial. It is noted that numerous witnesses, both lay and expert have testified and that the plaintiff has conducted his case on the basis of the trial record as it existed at the commencement of trial. The plaintiff further submits that expert witnesses would have to be recalled as well to speak to the issue of damages and the extent to which the damages are consistent with the injuries being sustained by way of self-defence.
Analysis
[12] An issue has been raised by the plaintiff as to whether the Court is entitled to consider any statement made in a pre-trial conference memorandum. In particular, Rule 50.09 of the Rules of Civil Procedure states that,
No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08.
[13] In the present case, the only portion of the pre-trial conference brief submitted by the defendant which has been entered into evidence is that portion which makes reference to the fact that the defendant is relying on the defences of self-defence and consent to physical contact as well as a denial of liability for battery.
[14] In Lyons Estate v. Freeman, 2017 ONSC 533, the Court ruled that it was appropriate to consider the contents of the defendant’s pre-trial conference memorandum when making a ruling on an evidentiary issue to refute the plaintiff’s assertion that she was taken by surprise by the defences mentioned in the defendant’s opening statement at trial. I agree with that position.
[15] Under Rule 2.03 of the Rules of Civil Procedure a Court may where necessary in the interests of justice dispense with compliance with any rule at any time.
[16] I also rely on the decision of the Court of Appeal in Marshall v. Watson Wyatt & Co., 2002 ONCA 13354. In that case the defendant attempted to lead evidence contrary to a position it took on discovery. The trial judge refused to admit the evidence. The Court of Appeal held that the trial judge took an overly technical position and failed to take account of the knowledge of trial counsel. The Court notes that the trial judge had two sources of this knowledge, one of which was a statement in the pre-trial memorandum. The Court specifically referred to Rule 1.04 of the Rules of Civil Procedure which provides that the rules shall be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.
[17] When one considers the original Statement of Defence which pleaded that the plaintiff was the aggressor and that the defendant attempted to avoid any physical altercation, it inferentially raises the possibility that the defendant is going to rely on self-defence. That is not the only potential interpretation of the pleading. However, there can be no doubt about the fact that the plaintiff was well aware that the action would be defended based on an allegation of self-defence at the pre-trial and again at the commencement of trial when the doctrine of self-defence was raised by counsel in his opening statement. No issue was raised by the plaintiff at the outset of trial that put the defence on notice that they would object to this defence.
[18] I conclude in the circumstances that plaintiff’s counsel was well aware of the need to address the issue of self-defence during this trial. That is reflected in the extensive cross-examination of the defendant at trial. There were no witnesses to the altercation on March 30, 2010. As a result, the two individuals who were involved have both testified and been subjected to extensive cross-examination about their respective recollections of the event.
[19] It is significant to note that in the cross-examination of Mr. Scherrer by plaintiff’s counsel, he asked Mr. Scherrer about the other altercation which occurred in 2008. On May 14, 2019 (page 103 of the transcript), the following questions were asked by plaintiff’s counsel of Mr. Scherrer:
Question: And you also punched Mr. Grech on that date too, right?
Answer: On the, on the …
Question: Situation
Answer: … 2008 …
Question: Right.
Answer: … knife incident?
Question: Right
Answer: No, I did not.
Question: How would pushing him help you diffuse the situation or defend yourself? [Emphasis added.]
[20] The above passage would strongly suggest that the plaintiff’s solicitor was well aware that self-defence was an issue in this action. This is, therefore, not a case where the plaintiff is being taken by surprise by Mr. Scherrer relying on the doctrine of self-defence.
[21] In Stetco v. Stetco, 2014 ONCA 370, the Court of Appeal dealt with an appeal from a decision of the trial judge which allowed the wife to amend her pleading at trial to claim an unequal division of property. In dismissing this aspect of the appeal, the Court of Appeal stated,
The husband also advanced, but did not strenuously press an argument that the trial judge erred by allowing the wife to amend her pleading at trial to claim an unequal division of property. The trial judge found that both parties had expected the claim to be an issue at trial. It had been identified as a live issue for trial at the Trial Management Conference and in the opening statement of the husband’s counsel. The trial judge found the claim had been left out of the wife’s application by oversight. When the amendment was allowed, the husband did not request an adjournment. We agree with the trial judge’s observation (made in her costs decision at para. 19) that the husband’s alleged “surprise” at the amendment was “purely strategic and patently insincere”.
Conclusion
[22] I therefore conclude that the interests of justice favour granting the relief sought. The defence is entitled to amend its Statement of Defence in the form sought with the exception that the amendment to plead a consent to the physical altercation of March 30, 2010 has been withdrawn.
[23] Given that the defence position was well known to the plaintiff, I see no need to permit the recalling of any witness to answer questions about the amendment to the pleading.
Justice M. McKelvey Released: February 19, 2021

