COURT FILE NO.: CV-10-414464
DATE: 20210504
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kimberly Prince
AND:
Atrium Property Management o/a 1273599 Ontario Limited and City of Toronto
BEFORE: Vermette J.
COUNSEL: Adam Romain, for the Plaintiff
Kevin Eng, for the Defendant Atrium Property Management o/a 1273599 Ontario Limited
Voula Kotoulas, for the Defendant City of Toronto
HEARD: March 22, 2021
REASONS FOR DECISION
[1] The Defendant Atrium Property Management operating as 1273599 Ontario Limited (“Atrium”) has brought a motion to amend its Statement of Defence and Crossclaim and, if it is found to have made admissions with respect to certain issues discussed in more detail below, for leave to withdraw such admissions.
[2] In addition to opposing Atrium’s motion, the Plaintiff has brought a cross-motion for an order for judgment in accordance with an alleged settlement agreement or, in the alternative, an order based on admissions pursuant to Rule 51.06 of the Rules of Civil Procedure and/or an order varying a prior order made in this matter.
[3] The Defendant City of Toronto (“City”) takes no position on the motions. While its counsel was present at the hearing, she did not make submissions. However, the Plaintiff has included in her motion materials and relies on an affidavit sworn by one of the City’s lawyers in this action.
[4] The main issues to be determined on these motions are the scope of the admissions made by the parties in the spring of 2016 and, in the event their scope conflicts with Atrium’s proposed amendments, whether Atrium can withdraw such admissions.
FACTS
a) Procedural Background
[5] This action arises from a slip and fall that occurred on December 28, 2008 – more than twelve years ago – on exterior wooden stairs. The stairs are located on property owned by the City, but in an area that is used to access a private residence that was owned by Atrium at the relevant time.
[6] The matter was scheduled to proceed to trial on March 14, 2016, more than five years ago. Pre-trial conferences were held with Justice Wilson on January 26, February 9, and March 3, 2016. The main lawyers involved for the parties were Diane Parsons for the Plaintiff, Brigette Morrison for Atrium, and Mark Coleman for the City. During the pre-trial conferences, the parties attempted to narrow the issues for trial. These attempts continued in-between and after the pre-trial conferences by way of meetings, e-mails and telephone conversations. In the course of these discussions, counsel agreed to bifurcate the trial, and that the parties would proceed on March 14, 2016 only on the issue of determining who was an occupier – Atrium, the City or both.
[7] As of the date on which the trial was supposed to start, the Plaintiff had served an expert report dealing with the condition of the stairs, but neither of the Defendants had served an expert report dealing with this issue.
[8] On February 12, 2016, after the second pre-trial conference, the City advised that it would move to amend its Statement of Defence and Crossclaim. The proposed amendments were limited to adding two new paragraphs identifying the specific provisions of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A and the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 on which the City was relying. At the third pre-trial conference on March 3, 2016, Justice Wilson granted leave to the City to amend its Statement of Defence and Crossclaim.
b) Memorandum of Agreement
[9] On March 3, 2016, Ms. Parsons sent an e-mail to Ms. Morrison and Mr. Coleman attaching “a memorandum of the agreement that I believe that we have all reached and encompasses our discussions as a result of our three attendances before Justice Wilson.” Counsel exchanged comments and proposed various changes to the Memorandum of Agreement from March 3 to 11, 2016.
[10] On Friday, March 11, 2016, at 6:18 p.m. (the Friday before the start of the trial), Ms. Morrison sent the following e-mail to Ms. Parsons and Mr. Coleman regarding the Memorandum of Agreement that the parties had been discussing:
Please find a revised Memorandum of Agreement that I would consent to being provided to the trial Judge.
During our meeting on March 8, 2016, we discussed the wording of the Memorandum of Agreement, and that a “separate” summary would be prepared setting out the substantive portion of that agreement. [Mr. Coleman] confirmed in his March 10, 2016 12:39 pm e-mail that he was agreeable to the final version of the Memorandum of Agreement circulated at our meeting with the language.
I have therefore started with the language agreed to from the Memorandum of Agreement and underlined any changed or additional language. […]
I note that this Memorandum of Agreement has never been signed or formalized.
Please note the substantive change that I have made to paragraph 7. In the event Atrium is determined to be the sole occupier, Atrium will pay the Plaintiff’s claim (as agreed), after appeal or confirmation that there will be no appeal. However, after such payment is made, Atrium still reserves its right to proceed to a second trial on the Crossclaim against the City on the operational policy claim, which is not contingent on the City being an “occupier” of the property in question.
This [is] consistent with the Defendants’ agreement to waive causation vis-à-vis the Plaintiff, but maintain all other liability defences, and in no way affects the Plaintiff. [Emphasis added.]
[11] The first five paragraphs of the Memorandum of Agreement attached to Ms. Morrison’s e-mail read as follows:
The Defendants, Atrium Property Management operating as 1273599 Ontario Limited (“Atrium”) and City of Toronto (“City”) admit that the state of the exterior wooden stairs on the City-owned property in front of 64 Harvard Avenue caused or contributed to the Plaintiff’s fall, but will otherwise maintain all other liability defences against each other with respect to the Crossclaims, as amended.
The Plaintiff’s contributory negligence will be assessed at 30%, with the remaining 70% of liability being apportioned to the Defendants or either of them.
The Plaintiff’s damages and prejudgment interest up to March 16, 2016 will be assessed at $210,202.780 (based on 30% contributory negligence), plus costs and interest from March 16, 2016 until the payment of judgment at 2% per annum.
The liability trial in this matter will be bifurcated.
The initial trial commencing March 16, 2016 will only relate to whether at the time of the accident one or both Defendants were occupiers of the City-owned property in front of 64 Harvard Avenue and/or the stairs constructed on that property. [Underlining in the original; bold font added.]
[12] This is the last version of the Memorandum of Agreement that was circulated among counsel. This document was not signed by counsel. As discussed below, counsel’s focus shifted to dealing with Atrium’s proposed amendments to its Statement of Defence and Crossclaim which had only been recently circulated by Ms. Morrison.
[13] While counsel did not formally sign a Memorandum of Agreement, the substance of the first three paragraphs reproduced in paragraph 11 above is found in all versions of the Memorandum of Agreement that were circulated among counsel and was not the subject of any disagreement.
c) Atrium’s Amended Statement of Defence and Crossclaim
[14] On March 10, 2016, Atrium’s counsel sent to the other parties a proposed Amended Statement of Defence and Crossclaim, purportedly in response to the City’s amendments. Atrium’s draft Amended Statement of Defence and Crossclaim contained extensive amendments, including nineteen new paragraphs. Various objections were expressed by Ms. Parsons and Mr. Coleman in e-mails. At 11:28 a.m. on March 11, 2016, Ms. Morrison sent an e-mail to counsel which stated, in part:
I will deliver a further revised pleading so that it is consistent with the agreement vis-à-vis the Plaintiff. That was not done initially because Mark had not removed those paragraphs. I will also remove the language referring to employee/employer or principal/agent relationship, although that is of little consequence. There are no new issues raised that require discovery in terms of the occupier issue, and certainly no new issues raised against the Plaintiff. […]
[15] Ms. Morrison circulated a revised Amended Statement of Defence and Crossclaim later on March 11, 2016, at 3:38 p.m. (i.e., approximately 3 hours before she circulated the last version of the Memorandum of Argument). Her cover e-mail stated, in part:
As indicated, I have considered your stated objections to my previous proposed Amended Statement of Defence and Crossclaim, and enclose revised Amended Statement of Defence and Crossclaim which I will seek leave to file on the first day of trial. Given the suggestions that my amendments somehow introduced new issues vis-à-vis the Plaintiff or reasserted arguments of causation against the Plaintiff, I have revised our proposed pleading so that it is now entirely consistent with the agreement reached between the parties. [Emphasis added.]
[16] The revised pleading included the following two new paragraphs:
3A. With respect to paragraphs 1, 9 of the Consolidated Statement of Claim, this Defendant pleads and relies upon the agreement reached between the parties with respect to the assessment of damages and interest, the issue of causation vis-à-vis the Plaintiff, and the liability split between the Plaintiff and the Defendants, or either of them, subject to the other liability defences to be tried.
9A. The Defendants have admitted that the state of the exterior wooden stairs on the City property in front of 64 Harvard Avenue caused or contributed to the Plaintiff’s fall. However, this Defendant states that any breach of the Building Code or Chapter 629 of the Toronto Municipal Code related to Property Standards, or other hazardous or dangerous condition with respect to the stairs in question, and the resultant damages sustained by the Plaintiff as agreed upon, are the responsibility in law of the City of Toronto, and this Defendant puts the Plaintiff and the City of Toronto to the strictest proof in establishing the contrary. [Paragraph 39 in the Crossclaim section of the amended pleading is identical to paragraph 9A.]
[17] Ms. Morrison’s evidence in cross-examination was that paragraph 9A above resulted from a reworking of paragraphs 15 and 16 of Atrium’s original Statement of Defence and Crossclaim for the purpose of making the Amended Statement of Defence and Crossclaim consistent with admitting causation vis-à-vis the Plaintiff. Paragraphs 15 and 16 of Atrium’s original Statement of Defence and Crossclaim read as follows:
This Defendant denies that there was any breach of the Building Code or any hazardous or dangerous condition with respect to the stairs in question which in any way caused or contributed to the alleged incident (which is not admitted but specifically denied), and this Defendant puts the Plaintiff to the strictest proof in establishing the contrary.
However, in the alternative, if the Plaintiff did sustain any injuries or damages as a result of any breach of the Building Code or any hazardous or dangerous condition with respect to the stairs in question (which are not admitted but specifically denied), such injuries or damages are the responsibility in law of the City of Toronto (subject to the Plaintiff's own contributory negligence and voluntary assumption of risk), and this Defendant puts the Plaintiff and the City of Toronto to the strictest proof in establishing the contrary.
[18] Atrium’s proposed Amended Statement of Defence and Crossclaim also deleted a number of paragraphs and allegations, including the allegation that the incident “was merely an accident for which no party is responsible in law”, and allegations that the incident was caused or contributed to by the Plaintiff’s own negligence. Further, in paragraph 1 of its Amended Statement of Defence and Crossclaim, Atrium admitted additional facts alleged in the Statement of Claim. Among other things, it admitted that the City: allowed the stairs to exist with a dangerous slant which caused for the formation and accumulation of moisture and water on the surface; failed to maintain the stairs in a good state of repair; failed to inspect the stairs; failed to give adequate warning; and caused or permitted an unusual danger to exist.
[19] After circulating its proposed amendments to counsel, Atrium prepared a Notice of Motion for an order granting leave to amend its Statement of Defence and Crossclaim. The Notice of Motion, which is dated March 11, 2016, refers to “the agreement already reached between the parties” with respect to the settlement of causation, damages, interest and the Plaintiff’s contributory negligence. Atrium’s complete motion materials were only served on March 14, 2016, just before the parties were to appear before the trial judge.
d) Requests to Admit
[20] A number of requests to admit were served in this matter. On March 7, 2016, Atrium served a response to one of the Plaintiff’s requests to admit and admitted the truth of the following facts: (1) “the condition of the stairs in question on December 28th, 2008, caused the Plaintiff to fall”; and (2) “there were no edgings on the steps such as anti-skid trim pieces or abrasive strips.” In its response, Atrium denied the truth of a number of other alleged facts, including that the stairs were in a slippery and unsafe state. On March 10, 2016, the City served its response to the same request to admit. Like Atrium, it admitted that “the condition of the stairs in question on December 28th, 2008, caused the Plaintiff to fall”. The City refused to admit the truth of the other alleged facts listed in the Plaintiff’s request to admit “as these facts are no longer relevant.”
[21] On March 1, 2016, Atrium responded to another request to admit served by the Plaintiff. In its response, Atrium admitted that “a proper assessment of the Plaintiff’s gross damages and pre-judgment interest is $300,289.71, plus costs”. However, it denied that the condition of the stairs caused the Plaintiff’s injuries and refused to admit that “a proper allocation of those damages with respect to negligence of the Defendants is 70% and contributory negligence of the Plaintiff is 30%.” Atrium gave the following reason for its refusal:
A proper allocation of the damages (admitted as fact number 4) is 70% for the Defendants, and 30% for the Plaintiff, but only if the Plaintiff proves that there was negligence on the part of the Defendants, or either of them, which caused or contributed to the subject accident. The Plaintiff continues to have the burden of proof in terms of causation for this loss, unless otherwise agreed upon between the parties in an effort to narrow the issues at a bifurcated trial with respect to liability.
[22] On March 7, 2016, Atrium served an Amended Response to Request to Admit in which, in addition to admitting the assessment of the Plaintiff’s damages, it admitted both that the condition of the stairs caused the Plaintiff’s injuries, and that “a proper allocation of those damages with respect to negligence of the Defendants is 70% and contributory negligence of the Plaintiff is 30%.”
e) Adjournment of the Trial
[23] On March 14, 2016, the trial judge sent the parties before Justice Wilson to deal with the issues of Atrium’s proposed amendments to its Statement of Defence and Crossclaim and whether the trial should be adjourned. At that time, Mr. Coleman advised that he needed to obtain instructions in light of Atrium’s proposed amendments on the eve of the trial.
[24] The parties attended again before Justice Wilson on March 16, 2016. As a result of Atrium’s proposed amendments, the City requested the adjournment of the trial, which the Plaintiff did not oppose in the circumstances. Both sought costs thrown away against Atrium. Atrium’s position was that its proposed amendments did not require an adjournment and it opposed an order for costs thrown away. In its bill of costs dated March 16, 2016, Atrium argued, among other things, that “[t]he majority of costs incurred since the initial pre-trial are not ‘thrown away’ and will be used at the trial of this action (whether bifurcated or not)”. Atrium included a list of examples of tasks or matters that were not “thrown away” and would be used at the trial. One of them was: “Negotiations leading to an agreement on damages, the Plaintiff’s contributory negligence and the waiver of causation vis-à-vis the Plaintiff” [emphasis added].
[25] After hearing submissions from the parties, Justice Wilson asked that counsel prepare an agreement in writing setting out the issues that the parties could still agree to settle or admit for the purpose of a full trial. She asked that counsel send her a copy of the agreement.
[26] On March 16, 2016, all counsel signed a document entitled “Agreement” (“March 16, 2016 Agreement”) which reads as follows:
The defendants admit that the condition of the stairs caused the Plaintiff to fall subject to paragraphs 2 and 3.
The Plaintiff’s contributory negligence will be assessed at 30%, with the remaining 70% of liability being apportioned to the defendants or either of them.
The Plaintiff’s damages and PJI [prejudgment interest] up to March 16, 2016 will be assessed at $210,202.80 (based on paragraph 2) plus costs. Interest runs thereon from March 16, 2016, at 2% per annum.
[27] On March 18, 2016, the Plaintiff consented to an order granting leave to Atrium to amend its Statement of Defence and Crossclaim, and the City advised that it did not oppose such an order. On March 21, 2016, Justice Wilson signed an order granting leave to Atrium to amend its Statement of Defence and Crossclaim, which was filed on March 24, 2016.
[28] On March 28, 2016, Justice Wilson released her endorsement with respect to the adjournment of the trial and costs thrown away. She stated, in part:
This is a slip and fall claim which was fixed for trial to commence 14 March 2016 for 3 weeks non-jury. I was assigned the pre-trial on 26 January. The circumstances of the Plaintiff’s fall are somewhat unusual and there is a dispute about which of the Defendants is an “occupier” within the meaning under the Occupiers’ Liability Act. I agreed to do trial management of the action prior to trial. I met with counsel again on 9 February at which time all counsel agreed on the quantum of the Plaintiff’s damages and the amount of the contributory negligence of Ms. Prince. It was agreed that the trial would proceed for a determination of who was an occupier. It was agreed the trial of this issue would take 3 days. Counsel agreed to prepare briefs of case law and a joint document brief. Counsel for the City indicated he would be amending his Statement of Defence as a housekeeping matter.
I met with counsel on 3 March. At that attendance, I signed an Order which was unopposed amending 2 paragraphs of the City’s Statement of Defence. Counsel for the Co-Defendant indicated she would deliver an amended pleading in response. Other trial issues were discussed at the 3rd pre-trial. The City’s position has never changed. If it was found to be an occupier, it would rely on its statutory defences, notably the failure of the Plaintiff to give the requisite notice of her claim. The Defendant, Atrium, had no such defences. I urged counsel to commit the agreement that had been reached concerning how the trial would proceed to writing. It was agreed the trial would commence 16 March for 3 days.
Analysis
I met with counsel on 3 occasions trying to streamline the trial so that it would proceed in an expeditious, efficient manner at the least amount of expense. It was clear to me that the issue that prevented resolution of this action was the somewhat unusual fall situation and the uncertainty about which of the Defendants would be found by the Court to be an occupier. It was agreed by all counsel that this issue ought to be determined. First, there was an agreement on quantum of damages, the contributory negligence of the Plaintiff, and the fact that the injuries of the Plaintiff were caused by the fall. The amended Statement of Defence of Atrium clearly contains new allegations against the City and in my view, goes well beyond what is necessary in order to respond to the City’s 2 amended paragraphs. The Rules are permissive on amendments and Atrium is entitled to amend its Statement of Defence but given the proximity to trial and the change which results to the agreement reached between counsel, I am forced to adjourn the trial. The new allegations to Atrium’s position at trial come very late in the day, after 3 attendances before me during which evidence was discussed in some detail. No explanation has been provided by counsel for the late timing of these new allegations – certainly after much trial preparation had been undertaken. For the sake of clarity, I do not accept the contention of counsel for Atrium that the amendments to the Statement of Defence do not raise new allegations. As well, it was never my understanding that the agreement provided that Atrium intended on proceeding with a second trial against the City if it were found to be an occupier – that makes no sense in my view given the point of bifurcation was to simplify the trial process and shorten proceedings.
As a result, the City and the Plaintiff are entitled to their costs thrown away of trial preparation. If there is no agreement to bifurcate, it appears that the agreement of 16 March 2016 sent to me by counsel will govern and thus the trial will proceed for a decision on occupier and on liability between the Defendants. That trial will not occur until 2017, given the state of the trial list.
In my view, the City is entitled to costs thrown away fixed at $10,000. The Plaintiff had less issues to deal given that contributory negligence and causation were agreed to so in my view the costs thrown away by the Plaintiff ought to be less. I fix them at $7,500. These costs are payable forthwith by the Defendant, Atrium. [Emphasis added.]
f) Atrium’s Expert Report
[29] On July 19, 2016, approximately four months after the adjournment of the trial, Atrium served an expert report with respect to the condition of the stairs which stated, among other things, that the stairs were built in conformance to the requirements of the Ontario Building Code and that they did not pose an inherent threat to safety. Atrium first contacted its expert on May 12, 2016 and retained him in June 2016.
[30] On August 12, 2016, Ms. Parsons sent the following letter to Ms. Morrison:
Further to your letter dated July 19th, 2016, enclosing an expert report dated July 18th, 2016, I am not sure why we are being served with a report that addresses the issue of liability when there has already been an admission that the stairs were defective. Am I missing something?
[31] On August 31, 2016, Atrium served a Request to Admit on the Plaintiff. Ms. Morrison’s cover letter stated that the Request to Admit was being served further to the findings and conclusions of the expert report served in July 2016. The Request to Admit included the following three paragraphs:
There is no breach of the Ontario Building Code with respect to the exterior stairs in front of 64 Harvard Avenue (hereinafter referred to as “the stairs”).
Even in the event there is a determination that Atrium Property Management operating as 1273599 Ontario Limited owed a duty of care with respect to the stairs, there was no negligence or breach of standard of care by or on behalf of said Defendant with respect to the condition of the stairs that caused the Plaintiff to fall on December 28, 2008.
Even in the event there is a determination that the City of Toronto owed a duty of care with respect to the stairs, there was no negligence or breach of standard of care by or on behalf of said Defendant with respect to the condition of the stairs that caused the Plaintiff to fall on December 28, 2008.
[32] The Plaintiff refused to admit the truth of paragraphs 1 to 3 above because “they have already been dealt with by way of an Agreement between the parties dated March 16th, 2016”.
g) Atrium’s proposed Fresh as Amended Statement of Defence and Crossclaim
[33] In November 2016, Atrium circulated its proposed Fresh as Amended Statement of Defence and Crossclaim to counsel. Both the Plaintiff and the City expressed the view that certain of Atrium’s proposed amendments contravened the agreement reached by counsel.
[34] For the purpose of these motions, the proposed amendments to paragraphs 3A and 9A are the most relevant:
3A. With respect to paragraphs 1~~,~~ and 9 of the Consolidated Statement of Claim, the Plaintiff and Defendants are bound by this Defendant pleads and relies upon the aAgreement reached between the parties with respect to the assessment of damages and interest, the issue of causation vis-à-vis the Plaintiff, and the liability split between the Plaintiff and the Defendants, or either of them, on March 16, 2016, as well as any amendments thereto, and are further bound by their respective admissions pursuant to Rule 51 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Defendants are otherwise entitled to maintain all subject to the other liability defences to be tried. In particular, this Defendant states that there was no duty of care or breach of the applicable standard of care on its part with respect to the specific condition of the stairs that caused the Plaintiff to fall. This Defendant denies liability for the Plaintiff’s claims in those regards, and puts the Plaintiff and the City of Toronto to the strictest proof in establishing the contrary. All other pleas and allegations in support of this Defendant’s Crossclaim against the City of Toronto are made in the alternative.
9A. The Defendants have admitted that the state condition of the exterior wooden stairs on the City property in front of 64 Harvard Avenue caused or contributed to the Plaintiff’s fall. However, this Defendant states that, if there was any breach of the Building Code or Chapter 629 of the Toronto Municipal Code related to Property Standards, or other hazardous or dangerous condition with respect to the stairs in question, and the resultant damages sustained by the Plaintiff as agreed upon, are the responsibility in law of the City of Toronto, and this Defendant puts the Plaintiff and the City of Toronto to the strictest proof in establishing the contrary. [The same proposed amendments are made to paragraph 39 in the Crossclaim section of the pleading.]
[35] Atrium also seeks to restrict the scope of certain admissions that it made in the first paragraph of its Amended Statement of Defence and Crossclaim by adding the statement that these admissions are “for the purpose of this Defendant’s Crossclaim against the City of Toronto only”.
[36] After Atrium circulated its proposed Fresh as Amended Statement of Defence and Crossclaim, counsel exchanged numerous e-mails regarding, among other things, the scope of the March 16, 2016 Agreement and whether or not Atrium’s proposed amendments were consistent with this Agreement.
h) The motions
[37] Atrium’s original Notice of Motion for leave to amend its Statement of Defence and Crossclaim was dated October 12, 2017, with a returnable date of February 15, 2018. The Plaintiff’s original Notice of Cross-Motion was dated March 29, 2018, with a returnable date of May 24, 2018. As a result of: (a) the exchange of voluminous motion materials and the conduct of cross-examinations; (b) disputes among the parties as to whether Atrium needed to seek leave to withdraw an admission, whether the two motions should be heard together and whether they should be heard by a master or a judge; and (c) COVID-19, these motions were only heard in March 2021, five years after this case was initially supposed to go to trial, and more than four years after Atrium circulated its proposed amendments.
[38] Following a case conference held before Master Sugunasiri on August 12, 2019 with respect to the hearing of these motions, the Master stated in her endorsement: “Unfortunately, after Justice Wilson went to great lengths to streamline this matter for the parties, they are moving backwards.” I wholeheartedly agree.
POSITION OF THE PARTIES ON THE ADMISSION ISSUE
[39] Atrium’s position is that it did not make a formal admission preventing it from amending its pleading, or adducing evidence and obtaining a determination at trial as to: (a) the specific condition of the stairs that caused the Plaintiff to fall; and (b) whether there was any breach of the applicable standard of care on the part of either Atrium and/or the City which caused or contributed to that specific condition. In the event this Court finds that Atrium did make an admission, Atrium submits that it should be granted leave to withdraw such admission as there is no non-compensable prejudice and Atrium should not be deprived of its substantive right to a trial on the merits with respect to a determination of these two issues.
[40] The Plaintiff’s position is that causation has been admitted and that she no longer needs to establish negligence on the part of the Defendants. She submits that Atrium’s proposed amendments are an attempt to resile from the settlement agreement reached by the parties, and that Atrium should not be granted leave to withdraw the admissions that it made.
DISCUSSION
a) Preliminary Evidentiary Issue
[41] Atrium objected, based on settlement privilege and Rule 50.09 of the Rules of Civil Procedure, to the admissibility of evidence adduced by the Plaintiff regarding comments allegedly made by Justice Wilson during the pre-trial conferences with respect to the merits of the case. The Plaintiff’s position is that such evidence was permissible as it was adduced in response to certain statements made by Ms. Morrison in one of her affidavits.
[42] Given the nature of the issues raised on these motions, disclosure of what transpired at the pre-trial conferences was necessary to a certain extent, as acknowledged by Atrium. See also Tondera v. Vukadinovic, 2015 ONSC 5843. I find it unnecessary to decide where the admissibility line should be drawn in the specific circumstances of this case because I have come to my conclusions on these motions without considering or relying on the impugned evidence which was, in any event, very limited and peripheral.
b) What is the scope of the admission that the condition of the stairs caused the Plaintiff to fall?
[43] An admission is an unambiguous, deliberate concession to the opposing party: Griffiths v. Canaccord Capital Corp., 2005 CanLII 42485 at para. 19 (Ont. Div. Ct.).
[44] The court can interpret what an admission means, but that interpretive exercise cannot morph into an analysis of the veracity of the admission because a formal admission is conclusive of the matter admitted: see Champoux v. Jefremova, 2021 ONCA 92 at para. 34. In order to determine the meaning and scope of an admission, the court must scrutinize the admission in the matrix of all the available evidence: see Vector Energy Inc. v. Canadian Pioneer Energy Inc., 1996 CanLII 10382, 185 A.R. 214 at para. 16 (Alta. A.B.).
[45] In this case, some of the admissions made by the parties were incorporated into an agreement. A settlement agreement is a form of contract. Therefore, the rules of contractual interpretation apply to such an agreement in order to give effect to the intention of the parties: Thai Agri Foods v. Choy Foong Trading, 2013 ONSC 883 at para. 4. When interpreting an agreement, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 2 S.C.R. 633 at para. 47.
[46] When considering all of the evidence and the surrounding circumstances that were known by all the parties at the relevant time, I conclude that Atrium has made clear admissions that establish conclusively that: (a) the condition of the stairs caused the Plaintiff to fall, with the result that proof of the specific condition of the stairs that caused her to fall is dispensed with and no contrary evidence may be led in this regard with respect to the Plaintiff’s claim; and (b) subject to the City’s statutory defences, the condition of the stairs that caused the Plaintiff’s fall was the result of a breach of the standard of care, i.e. there was something wrong with the condition of the stairs.
[47] I have come to this conclusion in light of all the evidence, but I discuss the most important factors below.
(i) Amended Statement of Defence and Crossclaim
[48] An important factor is Atrium’s current pleading, its Amended Statement of Defence and Crossclaim, and how it came about. In its original Statement of Defence and Crossclaim, Atrium denied in paragraph 15 that there was any breach of the Building Code or any hazardous or dangerous condition with respect to the stairs which in any way caused or contributed to the Plaintiff’s fall (see paragraph 17 above). In its Amended Statement of Defence and Crossclaim, Atrium deleted paragraph 15 and no longer denied that the stairs were in a hazardous or dangerous condition. In fact, Atrium admitted that the City had caused or permitted the stairs to be in a dangerous condition. Atrium’s defence was not that the stairs were not in a dangerous condition, but, rather, that the City was responsible for the stairs. This is reflected in paragraph 9A of the Amended Statement of Defence and Crossclaim, which begins with the statement that “[t]he Defendants have admitted that the state of the exterior wooden stairs on the City property in front of 64 Harvard Avenue caused or contributed to the Plaintiff’s fall”, and goes on blaming the hazardous or dangerous condition of the stairs and the resultant damages sustained by the Plaintiff on the City.
[49] In my view, the deletion of paragraph 15 in the initial Statement of Defence and Crossclaim, the addition of paragraph 9A in the Amended Statement of Defence and Crossclaim, the admission that the City allowed the stairs to be in a dangerous condition and the removal of all allegations that the incident was caused by the Plaintiff’s own negligence or was an accident for which no party is responsible in law show a deliberate intention to admit that there was something wrong with the stairs which caused the Plaintiff to fall.
[50] In paragraph 3A of its Amended Statement of Defence, Atrium “pleads and relies upon the agreement reached between the parties with respect to the assessment of damages and interest, the issue of causation vis-à-vis the Plaintiff, and the liability split between the Plaintiff and the Defendants, or either of them, subject to the other liability defences to be tried.” As a result, the admissions contained in the parties’ agreement are pleaded and incorporated in Atrium’s Amended Statement of Defence and Crossclaim. Thus, the parties’ agreement is another important factor to consider. As a preliminary matter, the agreement referred to in paragraph 3A must be identified.
(ii) Memorandum of Agreement and March 16, 2016 Agreement
[51] While the Amended Statement of Defence was only filed on March 24, 2016 pursuant to the Order of Justice Wilson dated March 21, 2016, it was circulated to the parties on March 11, 2016 and is dated March 11, 2016 on its last page. Therefore, the agreement that is referred to in paragraph 3A cannot, strictly speaking, be the March 16, 2016 Agreement.
[52] I reject Atrium’s position that paragraph 3A does not, in fact, refer to an agreement between the parties, but to an anticipated bifurcation agreement which never happened. I find that there was an agreement between the parties as of March 11, 2016. Atrium itself referred to an agreement in its proposed pleading, in its Notice of Motion dated March 11, 2016, and in its bill of costs dated March 16, 2016 (which was submitted to Justice Wilson before the March 16, 2016 Agreement was signed). In its Response to Request to Admit dated March 10, 2016, the City referred to “the Memorandum of Agreement entered into by counsel and in particular the agreement that the plaintiff was 30% contributorily negligent”, and stated that certain facts were “no longer relevant”, presumably as a result of the parties’ agreement. The correspondence between the parties and the Memorandum of Agreement also reflect that, by March 11, 2016, the parties had reached an agreement on the three points that were ultimately included in the March 16, 2016 Agreement. As Mr. Coleman stated during his cross-examination, the March 16, 2016 Agreement did not “come out of thin air” and was not an agreement on new issues.
[53] I find that the agreement between the parties referred to in paragraph 3A of Atrium’s Amended Statement of Defence and Crossclaim is reflected in the first three paragraphs of the Memorandum of Agreement circulated by Ms. Morrison on March 11, 2016, the substance of which was later incorporated in the March 16, 2016 Agreement. Even though it is not expressly mentioned in the March 16, 2016 Agreement or the first three paragraphs of the Memorandum of Agreement, there is no dispute among the parties that the City never waived its statutory defences vis-à-vis the Plaintiff.
[54] When interpreting the parties’ agreement, I give no or little weight to correspondence exchanged by counsel before the March 3, 2016 pre-trial conference because the admission that the condition of the stairs caused the Plaintiff to fall only crystallized at that time.
[55] I make the following observations regarding the March 16, 2016 Agreement and the first three paragraphs of the Memorandum of Agreement:
a. Paragraph 1 of the Memorandum of Agreement clearly states that liability defences are maintained with respect to the Crossclaims, not vis-à-vis the Plaintiff. This is consistent with Justice Wilson’s understanding of the March 16, 2016 Agreement as she stated in her March 28, 2016 endorsement that “the trial will proceed for a decision on occupier and on liability between the Defendants.” This supports the view that, aside from the issue of duty of care, there were no other outstanding liability issues to be addressed by the Plaintiff, such as identifying the specific condition of the stairs that caused the fall and establishing a breach of the standard of care. In light of Justice Wilson’s involvement in this case at the relevant time, her understanding of the scope of the parties’ admissions is significant, in my view. It is also significant that both the Plaintiff and the City have the same understanding.
b. An admission that the state/condition of the stairs caused or contributed to the Plaintiff’s fall would have little value for the Plaintiff if she still had to establish the specific condition of the stairs that caused her to fall, and that this specific condition existed as a result of a breach of the standard of care, as alleged by Atrium. The Defendants obtained concessions on damages and contributory negligence from the Plaintiff in exchange for settling the issue of causation as against the Plaintiff. In my opinion, it would not have made sense for the Plaintiff to make such concessions in return for the very limited admission alleged by Atrium.
c. The agreed-upon liability split also supports the conclusion that, pursuant to the parties’ agreement, the Plaintiff did not have to establish a breach of the standard of care. If there was no admission that there was something wrong with the stairs (i.e. a breach of the standard of care), then why agree that 70% of liability was to be apportioned to the Defendants or either of them? This view is also supported by the amendments that Atrium made to its Response to Request to Admit on March 7, 2016, as set out in paragraphs 21 and 22 above.
d. Paragraph 1 of the March 16, 2016 Agreement states that “[t]he defendants admit that the condition of the stairs caused the Plaintiff to fall subject to paragraphs 2 and 3.” I do not accept Atrium’s submission that the underlined words do not mean anything. These words were included in the Agreement signed by the parties and must be given meaning. The use of the words “subject to” is meant to qualify the admission contained in paragraph 1. In my view, paragraph 1 contains an admission of negligence/breach of standard of care, and this admission is qualified by paragraphs 2 and 3 which ascribe a percentage of liability to the Plaintiff and cap her damages.
[56] In the correspondence exchanged by the parties, there are numerous references to the parties having reached an agreement on the issue of causation vis-à-vis the Plaintiff. Paragraph 3A of the Amended Statement of Defence and Crossclaim also refers to such an agreement, and so does Justice Wilson in her endorsement dated March 28, 2016. In my view, the law regarding causation supports the interpretation of the parties’ admissions and agreement set out above.
(iii) Causation Principles
[57] The Supreme Court of Canada stated the following with respect to causation in Clements v. Clements, 2012 SCC 32, 2 S.C.R. 181 at para. 8:
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. [Emphasis in the original.]
[58] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333 at para. 23, the Supreme Court also stated that the “but for” test ensures that a defendant will not be held liable for the plaintiff’s injuries where they may very well be due to factors unconnected to the defendant and not the fault of anyone.
[59] Causation connects the defendant’s negligent act to the plaintiff’s injury. Unless there is a negligent act, i.e. an act that fell below the standard of care, it is not necessary to discuss causation. In the particular circumstances of this case, interpreting the parties’ agreement to waive causation vis-à-vis the Plaintiff as also waiving standard of care is consistent with causation principles.
[60] In her cross-examination, Ms. Morrison attempted to argue that the issue of causation in this case had three parts, and that Atrium had only admitted two of them, and not the third one. She stated that while Atrium had admitted that the Plaintiff’s injuries were caused by the fall and that the Plaintiff’s fall was caused by the stairs, Atrium had not settled the third causation issue, i.e. whether a breach of the applicable standard of care caused or contributed to the specific condition of the stairs that caused the fall.
[61] I reject Ms. Morrison’s evidence on this point. In my view, it is an attempt to parse Atrium’s admission in a way that finds no support in contemporaneous communications between the parties and that is contrary to numerous unqualified statements made by Atrium and/or Ms. Morrison to the effect that causation vis-à-vis the Plaintiff had been settled or waived. It is also noteworthy that Ms. Morrison stated in her cross-examination that she did not understand what “causation vis-à-vis the Plaintiff” meant, even though she used these very words a number of times in correspondence and court materials.
(iv) Practical considerations in light of Atrium’s expert report
[62] The expert report served by Atrium in July 2016 demonstrates why, in my view, Atrium’s very limited interpretation of its admissions cannot be correct.
[63] While Atrium does not deny that it has admitted that the condition of the stairs caused the Plaintiff to fall, its position is that it did not make a formal admission preventing it from adducing evidence and obtaining a determination at trial as to the specific condition of the stairs that caused the Plaintiff to fall. However, the expert report that Atrium now wants to use does not identify any specific condition of the stairs that caused the Plaintiff to fall and concludes, in effect, that there was no breach of the standard of care. The report also strongly suggests that the Plaintiff’s responsibility with respect to the fall would be more than 30% contributory negligence. Finding that such a report does not contradict Atrium’s admissions would be to give little or no content to the admissions that the condition of the stairs caused the Plaintiff to fall, that causation has been waived vis-à-vis the Plaintiff, and that the Plaintiff’s contributory negligence is capped at 30%. This is not what the parties contemplated in March 2016, as reflected in the parties’ correspondence.
(v) Conclusion on the scope of the admissions and Atrium’s proposed amendments
[64] As stated above, I find in light of the evidence and the surrounding circumstances that Atrium has made clear admissions that establish conclusively that: (a) the condition of the stairs caused the Plaintiff to fall, with the result that proof of the specific condition of the stairs that caused her to fall is dispensed with and no contrary evidence may be led in this regard with respect to the Plaintiff’s claim; and (b) subject to the City’s statutory defences, the condition of the stairs that caused the Plaintiff’s fall was the result of a breach of the standard of care, i.e. there was something wrong with the condition of the stairs.
[65] I also find that Atrium’s proposed amendments to paragraphs 1, 3A, 9A and 39 of its Amended Statement of Defence and Crossclaim are inconsistent with, and contradict, these admissions. Unless Atrium is permitted to withdraw these admissions, it is not open to Atrium to allege that there was nothing wrong with the stairs and/or that there was no breach of the standard of care, nor is it open to it to backtrack with respect to admissions that it has already made in its pleading regarding the hazardous or dangerous condition of the stairs.
d) Should Atrium be granted leave to withdraw admissions?
[66] Pursuant to Rule 51.05 of the Rules of Civil Procedure, an admission in a pleading or made in response to a request to admit may be withdrawn on consent or with leave of the court. Leave to withdraw an admission is a discretionary remedy as Rule 51.05 does not contain mandatory language like Rule 26.01 in relation to the granting of leave to amend a pleading: see Phillips v. Disney, 2018 ONSC 1021 at para. 11. Rule 51.05 being more specific, it supersedes Rule 26.01 where the effect of the proposed amendment is to withdraw an admission: see Kostruba and Sons Inc. v. Pervez, 2011 ONSC 4894 at para. 38.
[67] A party wishing to withdraw an admission must establish the following three criteria: (1) the proposed amendment raises a triable issue in respect to the truth of the admission; (2) there is a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions; and (3) the withdrawal will not result in any prejudice that cannot be compensated for in costs: see Champoux v. Jefremova, 2021 ONCA 92 at para. 28. This is a conjunctive test: all three criteria must be established by the party seeking leave: see BNP Paribas (Canada) v. Bartlett, 2012 ONSC 5604 at para. 12 (Div. Ct.), and Kostruba and Sons v. Perez, 2011 ONSC 4894 at para. 51. Before applying this three-prong test, the court must consider whether the admission is one purely of fact, law, or mixed fact and law since questions of law can be more easily withdrawn than questions of fact: see Champoux v. Jefremova, 2021 ONCA 92 at para. 28.
[68] The admissions made in this case regarding causation, contributory negligence and damages are admissions of fact or mixed fact and law. The Supreme Court of Canada has stated that a finding of causation is a factual determination: see Clements v. Clements, 2012 SCC 32, 2 S.C.R. 181 at paras. 8 and 13. None of the admissions in issue are admissions on questions of law only.
[69] Turning to the three-prong test, the first criterion to demonstrate a “triable issue” in respect to the truth of the admission requires the moving party to demonstrate that the proposed amendments raise an arguable case on the merits: see Phillips v. Disney, 2018 ONSC 1021 at para. 25. Atrium has met this first criterion in light of the expert report that it obtained in July 2016.
[70] However, I find that Atrium has not provided a reasonable explanation for the withdrawal of its admission. It has not established inadvertence, wrong instructions or another reasonable explanation, and the evidence shows that Ms. Morrison obtained instructions from her client before making the admissions in issue.
[71] Atrium alleges that it was pressured (or given an “ultimatum”) by Justice Wilson on March 3, 2016 to admit that the condition of the stairs caused the Plaintiff to fall because it was told that absent such an admission, there would be no bifurcation of the trial. Atrium was allegedly concerned that, if the trial was not bifurcated, an adjournment would be required as it was not ready to proceed on all issues and it would be facing requests for costs thrown away.
[72] I do not accept Atrium’s allegation. In my view, it is significant that Atrium confirmed the admission that the condition of the stairs caused the Plaintiff to fall in the March 16, 2016 Agreement, at a time where there was no longer an agreement to bifurcate. Further, given that the likely consequences of an adjournment and costs thrown away did not deter Atrium from seeking numerous and substantive amendments to its Statement of Defence and Crossclaim on the eve of the trial, I do not believe that Atrium would have been deterred by similar consequences had it not been prepared to admit that the condition of the stairs caused the Plaintiff to fall. Finally, the evidence of Ms. Parsons and Mr. Coleman regarding the March 3, 2016 pre-trial conference does not support Atrium’s allegation.
[73] Atrium’s amendments were prompted by the expert opinion that it obtained in July 2016. However, given that the Plaintiff’s expert report with respect to the condition of the stairs was served in August 2014 and that the parties knew since June 2014 that a three-week trial in this matter would start on March 14, 2016 (the possibility of bifurcation was only raised at the end of January 2016), there is no valid reason as to why Atrium did not obtain an expert report before July 2016.
[74] I echo the sentiment expressed by Justice Morgan in Metro Ontario Real Estate Ltd. v. Hillmond Investments Ltd., 2017 ONSC 3518 at para. 18:
In other words, it seems apparent that the Respondent sought to make this amendment to its pleading, and to deny its previous admission that the Appellant was the actual tenant, only now that it has been pointed out that it would improve its advocacy position to do so. For an aging action like this one, commenced in 2009, which has gone through 4 pleadings amendments by the Respondent and has had a summary judgment motion pending since 2012, there comes a time when matters must solidify and the case be moved forward. If the pleadings have to be amended and admissions withdrawn every time the Respondent and its counsel think of a new advocacy position, the matter will continue to lack forward momentum.
[75] The third criterion is whether the withdrawal will result in any prejudice that cannot be compensated for in costs. The moving party has the burden to establish this: see Champoux v. Jefremova, 2021 ONCA 92 at para. 28. Atrium argues that there is no prejudice in this case as the Plaintiff remains in the same position as she has been throughout the litigation, except for a short period before the March 14, 2016 trial date. Further, Atrium points out that the Plaintiff still has a lot of time to deal with Atrium’s expert report and withdrawal of admissions before the matter proceeds to trial. For her part, the Plaintiff argues that Atrium has not discharged its burden and that five years have elapsed since the trial of this matter was supposed to proceed. No evidence has been adduced by either party as to what would be required at trial to address the issue of the standard of care, and whether the delay caused by Atrium’s attempt to withdraw admissions would have any impact on the parties’ ability to deal with this issue.
[76] Ultimately, since Atrium has failed to provide a reasonable explanation for the withdrawal of its admission, I do not need to decide whether Atrium has met the third prong of the test as it has failed to meet the second prong of the test.
[77] Accordingly, I refuse to grant leave to Atrium to withdraw admissions in its Amended Statement of Defence and Crossclaim and in its responses to requests to admit.
d) Plaintiff’s Cross-Motion
[78] As a result of my decision on Atrium’s motion, some of the relief requested by the Plaintiff in its cross-motion has become unnecessary, such as her request to vary or amend the Order of Justice Wilson dated March 28, 2016 to: (a) include a term prohibiting the Defendants from filing any new expert reports in relation to causation or liability for negligence vis-à-vis the Plaintiff; and (b) amend the costs order to award full costs thrown away to the Plaintiff as a result of the adjourned trial on March 16, 2016. On the issue of expert reports, the Defendants are bound by their admissions as set out above, and they cannot adduce evidence that contradicts such admissions. As a result, Atrium will not be able to use the expert report that it obtained in July 2016 vis-à-vis the Plaintiff.
[79] The Plaintiff also seeks judgment based on the settlement reached with the Defendants, or partial summary judgment based on Rule 20 and/or Rule 51.06 of the Rules of Civil Procedure.
[80] Given that the issue of duty of care/occupier has not been determined or settled, it is not possible to grant judgment to the Plaintiff as all of the necessary elements of the Plaintiff’s claim have not been established. For the same reason, Rule 20 is unavailable as the Plaintiff is requesting an order determining certain issues rather than “judgment on all or part of the claim in the statement of claim”: see Rule 20.01(1) of the Rules of Civil Procedure and Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2017 ONCA 1011 at paras. 11-12.
[81] The remaining question is whether the type of order sought by the Plaintiff is available under Rule 51.06(2), which provides as follows:
Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may make a motion in the same proceeding to a judge for such order as he or she may be entitled to on the admission without waiting for the determination of any question between the parties, and the judge may make such order as is just.
[82] As the Court of Appeal stated in Ford Motor Co. of Canada Ltd. v. Ontario Municipal Employees Retirement Board (1997), 1997 CanLII 1302 (ON CA), 36 O.R. (3d) 384 (C.A.), the relationship between Rules 20 and 51.06 “remains somewhat unclear”, but the two rules serve a similar purpose. Typically, the orders sought under Rule 51.06 are for partial summary judgment consistent with the admission in issue. It is also unclear whether the more recent case law of the Court of Appeal regarding the cautious approach to be adopted when dealing with motions for partial summary judgments under Rule 20 (see, e.g., Butera v. Chown, Cairns LLP, 2017 ONCA 783, 418 D.L.R. (4th) 657) also applies to partial summary judgment under Rule 51.06.
[83] I do not need to deal with these issues in this case because Rule 51.06(2) only allows a party to move for “such order as he or she may be entitled to on the admission, without waiting for the determination of any question between the parties”. At this stage of the proceeding, the Plaintiff is not entitled to any order because, as stated above, the issue of duty of care/occupier has not been determined and, therefore, there remains at least one serious issue to be argued: see 8150184 Canada Corporation v. The Rotisseries Mom’s Express Limited, 2014 ONSC 815, 27 B.L.R. (5th) 141 at para. 5. What the Plaintiff is requesting is an order incorporating the admissions that have been made so far or, in other words, an “order” making findings of fact or mixed fact and law. In my view, this is not the type of order contemplated by Rule 51.06(2). As a result, I decline the Plaintiff’s request to make an order under Rule 51.06(2).
CONCLUSION
[84] Leave to amend paragraphs 1, 3A, 9A and 39 of Atrium’s Amended Statement of Defence and Crossclaim dated March 24, 2016 is denied. Given that the City and the Plaintiff do not object to the other amendments proposed by Atrium, leave is granted with respect to the balance of the amendments. While the Plaintiff pointed out during her argument that Atrium’s Statement of Defence improperly included paragraphs that pertained to Atrium’s Crossclaim against the City (for instance, paragraph 17), these paragraphs are not being amended and they were included in Atrium’s current pleading which was amended with the Plaintiff’s consent in March 2016.
[85] Atrium’s request for leave to withdraw admissions is denied.
[86] The Plaintiff’s cross-motion is dismissed.
[87] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 10 days of the date of this endorsement. Atrium shall deliver its submissions (with the same page limit) within 7 days of its receipt of the Plaintiff’s submissions. If she wishes, the Plaintiff may deliver reply submissions of no more than one and a half page (double spaced) within 5 days of her receipt of Atrium’s submissions.
VERMETTE J.
Date: May 4, 2021