Court File and Parties

COURT FILE NO.: 12-0553T

DATE: 2021-04-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Woodhouse, Plaintiff

AND:

Snow Valley Resorts (1987) Ltd. a.k.a. Ski Snow Valley (Barrie); Snow Valley Barrie; Snow Valley Ski Resort; Snow Valley, 717350 Ontario Ltd., Defendants

BEFORE: The Honourable Mr. Justice J.R. McCarthy

COUNSEL: Robert H. Littlejohn, for the Plaintiff

Edward J. Chadderton, for the Defendants

HEARD via Zoom: March 23, 2021

REASONS FOR DECISION ON MOTION

Introduction

[1] The present motion is brought within a seemingly endless course of litigation arising out of an incident which occurred more than 12 years ago at the Defendant’s ski resort. The Plaintiff now seeks to amend its Statement of Claim for at least the third time. The Plaintiff’s proposed Amended Amended Amended Statement of Claim (“the proposed amended claim”) is found out at Tab 4 of the motion record.

[2] The Plaintiff also seeks an order for the examination of a witness in advance of the Defendant’s summary judgment motion scheduled to be heard in June 2021. That witness is Joel Cooney (“Cooney”), a former employee of the Defendant. Cooney was one of the lift operators working at the ski resort on the day of the incident.

[3] The Plaintiff seeks the above relief under Rules 26.01 and 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] The Plaintiff set this action down for trial on August 28, 2014. Leave of the court to initiate the motion is therefore required under Rule 48.04.

[5] Rule 48.04 reads as follows:

CONSEQUENCES OF SETTING DOWN OR CONSENT

48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(0.i) rule 29.1.03 (requirement for discovery plan),

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness).

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).

(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2)(b).

[6] Rule 26.01 reads as follows:

GENERAL POWER OF COURT

26.01 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.

[7] Rule 39.03 reads as follows:

EVIDENCE BY EXAMINATION OF A WITNESS

Before the Hearing

39.03 (1) Subject to subrule 39.02(2), a person may be 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.

(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.

(2.1) Subrules (1) and (2) do not apply to an application made under subsection 140(3) of the Courts of Justice Act.

To be Exercised with Reasonable Diligence

(3) The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence.

At the Hearing

(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at trial.

Summons to Witness

(5) The attendance of a person to be examined under subrule (4) may be compelled in the same manner as provided in Rule 53 for a witness at trial.

[8] The Plaintiff asserts that leave should be granted to bring the motion under Rule 48.04 because of new circumstances in the litigation. As well, the proposed amendments are nothing more than an attempt to particularize a response to the Defendant’s summary judgment motion. The Court of Appeal in its addendum to a previous decision in this litigation implicitly accepted that it remained open to the Plaintiff, “to make other arguments as to why they might not be bound by the waivers”: Schnarr v. Blue Mountain Resorts Ltd., 2018 ONCA 668, at para. 5. The Plaintiff argues that the proposed amendments arise out of the same factual matrix already pleaded; much of what is set out in the proposed amended pleading can be found in the claim originally brought in Small Claims Court. The proposed amended claim also sets out different legal conclusions which might be drawn out of those previously pleaded facts.

[9] The Defendant opposes the relief sought claiming that, inter alia:

1. Leave should be denied to the Plaintiff to initiate any motion or form of discovery since the matter has been set down for trial.

2. The Defendant will be prejudiced by the proposed amendments. The proposed amendments assert one or more new causes of action which are now statute barred. Moreover, the carrot tow rope which is the subject matter of some of the proposed allegations has now been disassembled and is not capable of being analyzed, tested or assessed for the purpose of meeting those allegations.

3. The Plaintiff is really seeking examination for discovery of a non-party. The evidence of Cooney is irrelevant to the issues which need to be decided by this court on the upcoming summary judgment motion: whether, in light of the waiver/limitation of liability, there is a genuine issue requiring a trial on the pleadings and evidence as presently constituted.

[10] The Defendant takes no issue with the Plaintiff amending her claim to strike out paragraph 23 of the existing pleading. This is nothing but a concession that, in line with the Court of Appeal’s ruling in Schnarr v. Blue Mountain, 2018 ONCA 313[^1], the provisions of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Shed. A [“CPA”] do not apply to the impugned waiver.

[11] The Defendant has candidly admitted that the Plaintiff would have first been given notice that Cooney was no longer in their employ on February 1, 2021.

Leave under Rule 48.04(1)

[12] A request for leave to bring a motion to amend a pleading should, in my view, consider both the broad and mandatory language of Rule 26.01. I agree with my sister Braid J. who held as follows in Thistle v. Schumilas et al., 2018 ONSC 6390, at para. 59:

In providing that leave to amend shall be granted at any stage of the action, R. 26.01 of the Rules of Civil Procedure clearly has application after the action has been set down for trial. […] When the court considers whether to grant leave under R. 48.04(1) to bring a motion to amend a pleading, the court must take into consideration the language of R. 26.01: see Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753 (Ont. Gen. Div.).

[13] I note that Rule 26.01 mandates amendments “at any stage of an action”. Amendments are permitted right up until trial: Rule 26.06. Indeed, amendments to increase claims for damages are often allowed in order to match jury awards: see Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479 (Gen. Div.).

[14] As well, there are unique circumstances and developments in this case that warrant the court’s attention when considering whether to grant leave to bring the motion:

1. Since the action was set down, the Court of Appeal has determined that the CPA does not apply to the waivers of liability relied upon by the Defendant: Schnarr v. Blue Mountain, 2018 ONCA 313, reversing Woodhouse v. Snow Valley Ski Resort et al., 2017 ONSC 222. In an addendum to that decision, the Court of Appeal left it open to the Plaintiff to make other arguments as to why she might not be bound by those waivers. The Plaintiff now seeks to amend its pleading, in part, in order to address the new state of the law.

2. Since the action was set down, the Plaintiff has discovered that Cooney is no longer employed by the Defendant. The Plaintiff now seeks to examine Cooney as a non-party material witness.

3. Since the action was set down, the Defendant has brought the summary judgment motion. The Plaintiff is now obliged to put its best foot forward in response to that motion. This entails re-considering its pleadings and gathering further evidence to show that there is a genuine issue requiring a trial.

4. The year long slow down in court operations for civil matters since the onset of the Covid-19 pandemic means that, although the action is set down for trial, there is presently no trial date for the action.

[15] Taken together, I find that this constellation of factors amounts to a substantial and unexpected change in circumstances. This can serve as a basis to grant leave under Rule 48.04(1): see Denis v. Lalonde, 2016 ONSC 5960, at para. 23.

[16] I am therefore satisfied that leave to bring the proposed motion should be granted.

The Proposed Amendments

[17] While Rule 26.01 is mandatory, the right to amend is not absolute. An amendment is not permitted if it would result in prejudice that could not be compensated for by costs or an adjournment. As well, the court must consider “such terms as are just.”

[18] A proposed amendment will not be permitted where it advances a “fundamentally different claim” which would be barred by a limitation period: see 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, at para 22.

[19] At para. 20 of that decision, however, the Court of Appeal quoted, with approval, the passage from Morden & Perrell, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at p. 142:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based.

[20] Proposed amendments arising out of the same facts, or factual matrix, pleaded in the original Statement of Claim should be permitted. In determining if this is the case, the original claim must be read generously and with due allowance for drafting deficiencies: see Farmers Oil and Gas v. Ontario (Ministry of Natural Resources), 2016 ONSC 6359, at paras. 22-23.

[21] The burden of showing prejudice arising out of the proposed amendment lies with the party opposing it: see Barker v. Furlotte, [1985] O.J. No. 1517 (Div. Ct.), at para. 9.

[22] The original 18 paragraph claim was issued in the Small Claims Court on November 30, 2010. For that level of court, it was a relatively sophisticated and detailed pleading. Importantly, it set out in detail the allegations of fact upon which the claim was based. It contained allegations of negligence, inadequate supervision, inadequate instructions or training of staff, breach of statutory duties, improper operation of the tow lift, and failure to maintain and repair the tow lift. It pleaded and relied upon the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16 and all regulations thereunder. Finally, the claim alleged that at no time was the Plaintiff asked to review any documentation on the date in question.

[23] The Plaintiff amended her claim to take it out of the monetary jurisdiction of the Small Claims Court in May 2012. The claim was further amended on February 25, 2014 to include the ill-fated allegations under the CPA. That Amended Amended Statement of Claim also provided a different description of how the incident took place. The allegations of negligence, failure to maintain and repair, and failure to instruct and train staff, remained.

[24] The proposed amended pleading contains the following new allegations:

i) Paragraph 17

d. The defendant employees, servants and/or agents failed to be responsible for the safe operation and use of the carrot tow lift.

e. The defendant failed to ensure that its employees, servants and/or agents were responsible for the safe operation and use of the carrot tow lift.

ii) Paragraph 24 – The waivers/exclusions of liability relied upon the by the Defendants is [sic] not binding on the parties and/or not applicable in this case for a variety of reasons, including, but not limited to, the following:

a. The Plaintiff was lulled into a false sense of security by the Defendants’ various representations about explaining everything the Plaintiff needed to know;

b. The waivers/exclusions of liability were not sufficiently brought to the Plaintiff’s attention;

c. No explanation or direction was provided by the Defendants’ employees, servants and/or agents regarding the content of its waivers/exclusions of liability;

d. No waiver/exclusion of liability was brought to the Plaintiff’s attention or signed by the Plaintiff before the Plaintiff paid for a ski package that was not refundable;

e. The Defendants created confusion about the content and breadth of its waiver/exclusion of liability by publishing various versions in various locations;

f. The waivers/exclusions of liability do not expressly mention the Technical Standards Safety Act, 2000 and all regulations thereunder;

g. The waivers/exclusions of liability are not sufficiently broad enough to include negligence in maintaining or operating tow lifts;

h. The font used on the waivers/exclusions of liability was small and illegible;

i. When affixed to a skier’s jacket, the waiver/exclusion of liability on the lift ticket is flipped upside down and therefore made virtually impossible to read;

j. The waivers/exclusions of liability are completely or partially non est factum; and

k. The Defendants have taken remedial action since the subject accident to update and revise its policies and procedures regarding its waivers/exclusions of liability.

[25] I am persuaded that leave to amend should be granted.

[26] One, the proposed allegations in sub-paragraphs 17(d) and (e) do not serve to raise non-repair and lack of maintenance of the tow rope, or failure to train and instruct staff in respect of the tow rope, for the first time. Those allegations were previously set out in the Small Claims Court pleading.

[27] Two, the proposed amendments do little more than expand upon the allegations set out in the original pleading. To the extent they allege new facts about the waivers – “no explanation or direction” in sub-paragraph 24(c) or “created confusion” or “lulled into a false sense of security” in sub-paragraphs 24(a) and (e) – these allegations are closely linked to the original allegation that the plaintiff was not afforded an opportunity to review the waiver documentation.

[28] Three, the balance of the proposed allegations – notably sub-paragraphs 24(f), (g), (h) and (j) – are nothing more than conclusions, legal or factual, which may be drawn from the facts previously pleaded.

[29] Four, to the extent that new facts are alleged – in sub-paragraphs 24(i) and (k) – they touch on matters which have undoubtedly remained within knowledge of the Defendant for some time; it will be up to the Defendant to accept, deny, refute or downplay the relevance or importance of those allegations.

[30] Finally, I am not persuaded that the proposed amendments constitute a new cause of action. The position advanced by the Plaintiff that the waiver/limitation of liability is not binding for any number of reasons is hardly novel. It is simply a legal conclusion which a trier of fact may draw after a consideration of the evidence. The proposed amendments do nothing more than particularize the facts which might lead to that asserted conclusion. There is no fundamentally new claim.

[31] I find no prejudice to the Defendant in allowing these amendments. While the passage of time always carries with it some risk of diminished memory, I highly doubt that a witness’ memories of this obscure event from December 2008 would have been sharper at the discoveries in 2013 than it would be today. There is no evidence that the wording or font size of the waivers themselves have not been preserved in evidence.

[32] As well, I can find no prejudice to the Defendant because the carrot tow has now been dismantled and is unavailable for testing for mechanical defect. The Defendant knew about the incident from the outset. It certainly knew about it in detail by the time the 2010 claim was served. Apparently, it took no steps to inspect or maintain that piece of property in the face of the allegations in the ongoing litigation.

[33] I find that the following terms should accompany the granting of leave: the Plaintiff shall serve an updated affidavit of documents forthwith; the Defendant may serve a demand for particulars; the Defendant may serve and file an amended Statement of Defence; and the Defendant may conduct a further examination for discovery of the Plaintiff.

The Proposed Examination of Mr. Cooney

[34] I am prepared to grant leave to allow the Plaintiff to examine Cooney under Rule 39.03. As explained above, the fact that Cooney is no longer employed by the Defendant is a recent and substantial change in circumstances.

[35] The Plaintiff has acted with reasonable diligence having learned only recently that Cooney is no longer employed by the Defendant. He was one of the tow rope operators on the date of the incident. His employment file was produced back in 2011; the Defendant has produced two Snow Valley Lift Handbooks and a will say statement of the witness. Those documents will be available for Cooney to review. I am not persuaded that the witness’s memory will be so diminished that his evidence will not be of some value. It will likely be probative of the twin issues of the safe operation and use of the tow lift, and the instruction and training provided to the Defendant’s staff. A motions court may determine that these remain genuine issues requiring a trial; it is therefore in the interest of justice that the Plaintiff be granted leave to conduct the proposed examination. In this way, the Plaintiff will be afforded a fair opportunity to enhance the evidentiary record and put her best foot forward in responding to a summary judgment motion.

[36] Counsel for the Defendant expressed fear that any opportunity to examine Cooney will serve as a means by which the Plaintiff will attempt to re-open the discovery of the Defendant. I find this to be a legitimate concern but one that can be addressed with terms. While leave is granted to the Plaintiff to conduct the Rule 39.03 examination of Cooney, the following terms shall apply:

1. The Plaintiff shall within 30 days of this order serve and file a list of proposed questions for Cooney.

2. The Defendant shall have 14 days from receipt of those questions to object to one or more of the proposed questions.

3. In the event that there is no objection from the Defendant, the examination shall proceed on a date to be chosen by the Plaintiff.

4. In the event that there are one or more objections by the Defendant which the Plaintiff is unwilling to accede to, the issue of the disputed questions will return before me for oral submissions on a date to be assigned by the trial coordinator at Barrie. The court will then give appropriate directions for the conduct of the examination.

Conclusion

[37] For the reasons set out above, the Plaintiff is granted leave to bring this motion under Rule 48.04(1).

[38] The Plaintiff is granted leave to serve and file the proposed amended claim as set out at Tab 4 of the Notice of Motion. That leave is granted on the following terms:

a) The Defendant may file an Amended Statement of Defence within 30 days of the amended claim being served.

b) The Plaintiff shall provide an updated Affidavit of Documents forthwith upon request by the Defendant.

c) The Defendant may conduct further examination for discovery of the Plaintiff in a manner of its choice (oral examination or by written questions).

d) The Defendant maintains all its rights to demand particulars of the allegations in the proposed amended pleading.

[39] The Plaintiff is entitled to examine witness Joel Cooney in advance of the summary judgment motion. Prior to that examination taking place, the parties shall first adhere to the procedure set out in paragraph 36 above.

Costs

[40] The Plaintiff has been successful on the motion. She has requested $12,500.00 in costs; the Defendant would have been seeking $5,000.00 if it had been successful. Should the parties be unable to agree on either the entitlement to or the quantum of costs of this motion, the court will receive written submissions on the issue according to the following schedule:

a) submissions of the Plaintiff limited to three pages on or before April 16, 2021;

b) responding submissions from the Defendant limited to two pages on or before April 23, 2021; and

c) reply submissions by the Plaintiff limited to one page on or before April 30, 2021.

McCarthy J.

Date: April 1, 2021

[^1]: This was a joint appeal from two judgments reported at Schnarr v. Blue Mountain Resorts Ltd., 2017 ONSC 114 and Woodhouse v. Snow Valley Resorts (1987) Ltd., 2017 ONSC 222. These two appeals were heard together as they raised common issues.