COURT FILE NO.: CV-20-82799
DATE: 2021/01/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ANNIE PHANEUF, JULIEN THOMS (by his litigation guardian Douglas Anthony) and BRIANNA THOMS (by her litigation guardian Douglas Anthony), Plaintiffs
-and-
SENATORS SPORTS 7 ENTERTAINMENT, CAPITAL SPORTS PROPERTIES INC., CAPITAL SPORTS 7 ENTERTAINMENT INC., OTTAWA POLIC SERVICES BORAD, SERGEANT MICHAEL CATHCART AND CONSTABLE MICHAEL SHOWLER, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Tina Hill, for the Plaintiffs
Pierre Champagne, for the Defendants, Senators Sports & Entertainment, Capital Sports Properties Inc. and Capital Sports & Entertainment Inc.,
Michelle Doody, for the Defendants, Ottawa Police Services Board, Sergeant Michael Cathcart, and Constable Michael Showler
HEARD: In writing
ENDORSEMENT
Introduction
[1] The defendant, Capital Sports Properties Inc. (“CSPI”) brings this motion in writing for an order granting it leave to amend its statement of defence and crossclaim. The relief sought is on consent.
[2] The Rules of Civil Procedure, which govern motions of this kind, provide that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of eery civil proceeding on its merits.” [^1]
[3] Even though the relief sought on this motion is on consent, and even with a liberal application of the Rules, the deficiencies in the motion record are such that the relief requested is not granted. The deficiencies in the record shall be remedied and a fresh motion record filed with the court.
Deficiencies in the Notice of Motion
a) The Relief Sought
[4] CSPI identifies that their motion is for an order “that leave be granted for the defendant Capital Sports Properties Inc. to file an amended statement of defence and crossclaim.”
[5] CSPI fails to identify the specific amendments they propose to make to their pleading. If the relief as requested were granted, then the order would read, “THIS COURT ORDERS that Capital Sports Properties Inc. is granted leave to deliver an amended statement of defence and crossclaim.” The difference between the relief requested (to “file”) and that required (to “deliver”) is addressed below. Without identifying the specific amendments they seek to make to their pleading, CSPI would be no further ahead than they were before bringing the motion. CSPI would be required to return to the court requesting leave to make specific amendments to their pleading.
[6] To correct this deficiency, CSPI needs to (a) include the draft amended pleading as Appendix “A” with their notice of motion, and (b) revise the relief sought to the following, “an order for leave to amend their pleading in accordance with the draft amended pleading attached as Appendix ‘A’ to this notice of motion.”
[7] There is a difference between filing and delivering a document. Subrule 1.03(1) defines “deliver” to mean both serve and file with proof of service and “delivery” to have a corresponding meaning. If, in the relief sought, CSPI intends to address what they will do with their pleading, once amended, then the relief required is to “deliver” it. CSPI would not be entitled to file the amended pleading with the court without having first served it on the opposing parties.
b) Grounds for the Motion
[8] The motion record includes the notice of motion, the draft amended pleading, and a consent; it does not include an affidavit. The grounds listed in the notice of motion include matters which are not supported by any evidence. For example, item 2 of the grounds is that “[i]n preparation for examinations for discovery, documents came to light that required the moving party to amend its statement of defence and crossclaim.”
[9] Item 6 is another ground listed for which there is no evidence in the record. CSPI therein says, “[t]he action against the defendants Senators Sports & Entertainment and Capital Sports & Entertainment Inc. has been discontinued.” There is nothing in the motion record as evidence of that discontinuance. A copy of the order discontinuing the action against those defendants should be included, as a separately tabbed document, as evidence in support of the grounds set out at item 6. That order is part of the record and should not be attached as an exhibit to a supporting affidavit.
[10] If CSPI intends to rely on any grounds other than the consent of the parties, then additional evidence, including a copy of the order discontinuing the claim against Senators Sports & Entertainment and Capital Sports & Entertainment Inc., is required.
[11] The final item in the grounds is “Rule 7 and 26.02 of the Rules of Civil Procedure.” Nothing further as to the relevance of the Rule 7 and rule 26.02 is provided. Rule 7 is titled, “Parties Under Disability”. Its relevance to a pleadings amendment motion is not explained.
[12] Rule 26.02 is titled “When Amendments May be Made”. Again, no explanation of the rule and how CSPI applies it to the present motion is provided. Presumably, CSPI relies specifically on r. 26.02(b) which provides that the court has the discretion to grant leave to amend a pleading where the relief sought is on consent. By not identifying the specific subrule and not providing any explanation, CSPI leaves the court to guess at the relevance of subrule 26.02 to the motion.
[13] It is not sufficient to merely cite a Rule, a rule, or a subrule, or a statutory or regulatory provision as a ground in support of a motion, without also providing a summary of its contents and its relevance to the motion before the court.
c) The Documentary Evidence
[14] The documentary evidence upon which CSPI relies is identified as “the proposed amended statement of defence and crossclaim and note from courthouse staff” and the “consent of the parties”.
[15] First, as a stand alone document, the proposed amended statement of defence and crossclaim is not evidence. For it to be considered evidence it would have to be referred to in some way – either in the substantive text of a supporting affidavit or as an exhibit to such an affidavit.
[16] Second, the motion record includes copies of letters received by CSPI’s counsel in response to counsel’s attempts to file documents with the court. As stand alone documents, those letters are not evidence. They would be in evidence if they were attached as exhibits to and addressed in the substantive text of a supporting affidavit.
[17] Third, the consent filed is perplexing. Its substantive contents are limited to the following:
The parties hereto, personally or by their solicitors, hereby consent to the issuance of the attached Amended Statement of Defence and Crossclaim as attached.
The parties hereto, personally or by their lawyers, hereby confirm that no party under disability is involved in this Consent.
[18] Two of the plaintiffs have a litigation guardian. The record does not indicate whether those plaintiffs are minors or adults under disability. Regardless, two plaintiffs are identified in the title of proceeding as persons under disability within the meaning of the Rules. The consent is signed by or on behalf of counsel for the plaintiffs. How are plaintiffs’ counsel or any other counsel involved in this matter in a position to confirm that “no party under disability is involved in this [c]onsent”?
[19] The contents of the consent are such that the reader would expect to see a copy of the proposed amended pleading attached to it. The record includes two copies of the consent. One copy is signed by counsel for the Ottawa Police Services Board and the two individually named police officers. The other copy of the consent is signed by or on behalf of all counsel. Included with the copies of the consents are emails between the offices of counsel for the parties. The emails are included as stand alone documents and, as such, are not evidence.
[20] Neither copy of the consent in the record has attached to it, as an appendix, a copy of the proposed amended pleading. Without a copy of the proposed amended pleading attached to the consent, there is no evidence as to the specific amendments to which the responding parties consent.
[21] The court does not suggest that counsel for CSPI is attempting to obtain leave to amend their client’s pleading in any way other than as proposed to counsel for the opposing parties. The point is simply that the record must include evidence of the specific relief (i.e., amendments) to which the opposing parties consent. Based on the first paragraph of the consent included in the record, the court expects to see a copy of the proposed amended pleading attached as Appendix ‘A’ to the document.
The Draft Order
[22] Subrule 37.12.1(2) requires that a copy of the draft order be filed with the notice of motion where the motion in writing is on consent. CSPI complied with that subrule. The draft order filed is, however, deficient.
[23] The relief set out in paragraph 1 of the draft order is that “leave be granted to the defendant Capital Sports Properties Inc. to amend its statement of defence and crossclaim in the form attached to the notice of motion.” First, there is no such document “attached” to the notice of motion. As noted in paragraph 13, above, the relief requested is to “file an amended” pleading. The notice of motion makes no reference to the specific amendments proposed and does not include a copy of the proposed amended pleading as an appendix. As a result, the relief set out in paragraph 1 of the draft order would, if granted, be meaningless.
[24] The relief that CSPI requires is an order that “Capital Sports Properties Inc. is granted leave to amend its statement of defence and crossclaim in accordance with the amended pleading attached as Appendix ‘A’ to this order.” The copy of the draft order filed with the motion record should include, as an appendix, the proposed amended pleading.
[25] The relief set out in the draft order does not match the relief sought because there is no mention in the former of “leave to file” an amended pleading. Query whether CSPI requires such relief in any event. As noted above, they will not be able to file their amended pleading without first serving it on the opposing parties. If CSPI is of the view that it requires leave to file the amended pleading, then they may wish to reframe the relief requested to reflect delivery rather than filing.
[26] The draft order includes a second numbered paragraph. It provides that “there are no costs ordered for this motion.” A term to that effect is not addressed in the notice of motion or in the consent. There is nothing in the record before the court to support granting that relief. If the parties agree that there shall be no costs on the motion, then that agreement needs to be reflected in the consent and/or a draft order that is approved as to form and content.
Disposition
[27] CSPI’s motion for leave to amend their pleading is adjourned. CSPI shall deliver a fresh motion record and shall, when filing that record, identify to the court that the record is to be brought to my attention. I remain seized of the matter.
Madam Justice Sylvia Corthorn
Released: January 15, 2021
COURT FILE NO.: CV-20-82799
DATE: 2021/01/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANNIE PHANEUF, JULIEN THOMS (by his litigation guardian Douglas Anthony) and BRIANNA THOMS (by her litigation guardian Douglas Anthony), Plaintiffs
-and-
SENATORS SPORTS 7 ENTERTAINMENT, CAPITAL SPORTS PROPERTIES INC., CAPITAL SPORTS 7 ENTERTAINMENT INC., OTTAWA POLIC SERVICES BORAD, SERGEANT MICHAEL CATHCART AND CONSTABLE MICHAEL SHOWLER, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Tina Hill, for the Plaintiffs
Pierre Champagne, for the Defendants, Senators Sports & Entertainment, Capital Sports Properties Inc. and Capital Sports & Entertainment Inc.,
Michelle Doody, for the Defendants, Ottawa Police Services Board, Sergeant Michael Cathcart, and Constable Michael Showler
HEARD: In writing
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: January 15, 2021