Court File and Parties

Court File No.: CV-18-598346 Released: 2022/04/19 Superior Court of Justice - Ontario

Re: Suzana Kovacevic v. Emir Kovacevic

Before: Associate Justice Graham Heard: April 13, 2022

Appearances: Suzana Kovacevic, plaintiff in person (moving party) Marek Tufman for the defendant

Endorsement

(Re: plaintiff’s motion to amend the statement of claim)

[1] As indicated in my endorsement on the motion record, the only motion that Ms. Kovacevic argued at the April 13, 2022 hearing was to amend the statement of claim. Ms. Kovacevic’s motion to compel production from the non-party Sciex was adjourned to be rescheduled for another hearing date. Defendant’s counsel raises objections to certain of the proposed amendments to the statement of claim.

[2] The existing statement of claim is the Amended Amended Statement of Claim in the form amended March 11, 2020 pursuant to the order of Master McGraw dated March 6, 2020. The proposed Amended Statement of Claim is exhibit E to Ms. Kovacevic’s affidavit sworn September 10, 2021.

[3] In the existing statement of claim, the plaintiff claims damages in the total amount of $200,000.00 for:

• bodily injuries arising from an alleged assault by the defendant;
• intentional infliction of emotional distress “caused by the false criminal harassment accusations by the Defendant for intentional and malicious lying to the Police that caused five serious criminal charges against the Plaintiff and a night in jail”;
• “psychological damages the Defendant’s intentional bad faith actions caused”;
• “financial hardship the Plaintiff suffered by not being able to search for a better paying job due to wrongful criminal charges” which appeared on her record;
• “general punitive damages”.

[4] Ms. Kovacevic then describes the circumstances leading to and following the alleged assault by the defendant, including the involvement of the police:

• On August 17, 2016, the plaintiff and defendant met in the parking lot of her former employer Sciex and then drove to a nearby plaza parking lot;
• She refers to the termination of her employment at Sciex “because I did not want to participate in group sex with [the defendant]”;
• She then describes the assault itself which began with the defendant opening her car door, her slapping the defendant’s face, and the defendant then striking her on her chin and kicking her leg;
• The following morning, she was contacted by the police and asked to “come to the station to be arrested.” The plaintiff pleads that the defendant informed the police that she assaulted him and attempted to run him over with her car;
• “He [the defendant] started the violent incident because he was angry that I was going to talk to Sciex HR about my termination, and he wanted to protect his career, his marriage and his numerous group sex mistresses from Sciex. The Police charge [sic] me based on the deliberate and disturbing amount of lies from the Defendant and they did not do diligent investigation before pressing the five very serious charges. . . . The charges were dropped through a peace bond.”
• “There is currently also a legal proceeding against the defendant and my previous employer Sciex for wrongful termination of employment to cover up discrimination on the grounds of sexual harassment in the workplace in front of the Human Rights Tribunal of Ontario. . . . As per the advice of the legal support centre associated with the Human Right Tribunal, the Tribunal awards damages for loss of dignity caused by the discrimination but not for bodily injuries, psychological and emotional damages and general punitive damages and they suggested that the Superior Court of Justice is a more appropriate forum for it.”

[5] The existing statement of claim consists of a single page with one paragraph setting out the heads of damages claimed and three paragraphs setting out the allegations regarding the defendant’s conduct. Only the first two paragraphs are numbered and the third paragraph is almost half a page of small print.

[6] The proposed amended statement of claim includes almost one page of claims for relief and over four pages of allegations. It consists of numbered paragraphs and essentially complies with rule 25.02 of the Rules of Civil Procedure: “Pleadings shall be divided into paragraphs numbered consecutively, and each allegation shall, so far as is practical, be contained in a separate paragraph.”

[7] As this new pleading is really a re-drafted version of the existing statement of claim, containing additional details providing context for events already described, it is more accurately described as a “Fresh Amended Statement of Claim.” Because it consists of shorter numbered paragraphs, it will be easier for the defendant to plead to than the existing statement of claim.

[8] The claims advanced in the proposed amended statement of claim are essentially the same as those in the existing statement of claim. Specifically, the plaintiff claims total damages not exceeding $200,000.00 plus interest and costs, and particularizes the damages claimed for:

• her physical injuries from the alleged assault by the defendant;
• psychological and emotional pain arising from the defendant giving allegedly false information to the police leading to the criminal charges against her and for a back injury arising from having to spend the night in jail;
• financial hardship arising from her inability to search for a better paying job owing to the record of the criminal charges instigated by the defendant.

[9] Although neither the plaintiff nor the defendant’s lawyer referred to any law on the issue of when pleadings amendments will be permitted, it is appropriate to refer to the applicable Rule and case law.

[10] Rule 26.01 of the Rules of Civil Procedure applies to motions to amend pleadings:

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. [emphasis added]

[11] The use of the word “shall” in the rule suggests that amendments sought are mandatory. However, as stated in Klassen v. Beausoleil, 2019 ONCA 407, there are circumstances in which pleadings amendments will not be permitted (paras. 25, 27 and 28):

25 The rule [26.01] is framed in mandatory terms: the court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: 158844 Ontario Ltd v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517, 264 O.A.C. 220, at paras. 15-16.

27 An amendment will be statute-barred if it seeks to assert a “new cause of action” after the expiry of the applicable limitation period: North Elgin, at paras. 19-23, 33; Quality Meat Packers, at para. 65. In this regard, the case law discloses a “factually oriented” approach to the concept of a “cause of action” – namely, “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: North Elgin, at para. 19; Quality Meat Packers, at para. 65.

28 An amendment does not assert a new cause of action – and therefore is not impermissibly statute-barred – if the “original pleading … contains all the facts necessary to support the amendments … [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded”: Dee Ferraro, at paras. 4, 13-14; North Elgin Centre Inc., at paras. 20-21; East Side Mario’s Barrie, at paras. 31-32; Quality Meat Packers, at para. 65. Put somewhat differently, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a "fundamentally different claim" based on facts not originally pleaded: North Elgin, at para. 23.

[12] At the beginning of the hearing, I expressed the view that, as the causes of action asserted in the proposed amended statement of claim were essentially the same as those in the existing statement of claim, there appeared to be no issue of any claims being advanced following the expiry of a limitation period. During argument, the defendant did not challenge any of the amendments on the basis that they assert a new cause of action following the expiry of a limitation period.

[13] The plaintiff submits that the proposed amendments to her statement of claim simply provide details of her alleged romantic relationship with the defendant for the purpose of providing context for the alleged assault and the defendant’s instigation of criminal charges that are the basis for her existing claims.

[14] The defendant makes the general submission that some of the proposed amendments are an attempt to re-litigate matters relating to the termination of her employment that were before the Human Rights Tribunal of Ontario (“HRTO”) and the criminal charges that were resolved before the criminal court and are therefore an abuse of process.

[15] With respect to the HRTO proceedings, the plaintiff submits that in the amended pleading that constitutes her existing claim, she abandoned the claim for sexual harassment that she alleges occurred at Sciex precisely because it was the subject of the HRTO complaint, so there is no abuse of process by way of a claim for which relief was sought in that other forum.

[16] The plaintiff acknowledges that she commenced another action against the defendant in 2019 in relation to his alleged failure to pay an award made by the HRTO. However, neither the existing statement of claim nor the proposed amended statement of claim in this action advance any claim with respect to that HRTO award.

[17] With respect to the criminal charges against the plaintiff, the defendant submits that the plaintiff resolved those charges through a peace bond, so the proposed pleadings with respect to the arrest and criminal charges are an improper attempt to re-litigate the criminal charges.

[18] In her existing statement of claim the plaintiff pleads “The charges were dropped through a peace bond”. In his statement of defence, the defendant pleads that the plaintiff having entered into a peace bond to avoid a criminal conviction arising from the alleged assault makes her action frivolous, vexatious and an abuse of process. In the proposed amended statement of claim, the plaintiff pleads “The criminal charges against Suzana were resolved through common-law peace bond”, which is essentially identical to her existing pleading. The plaintiff has therefore not amended the substance of the allegation with respect to the peace bond so the defendant cannot object to it on this motion.

[19] Also, the fact that the plaintiff may have chosen to resolve the criminal charges through a peace bond may be a basis for the defendant to challenge her claim, but it does not necessarily preclude her from seeking damages for the defendant’s alleged malicious prosecution. The defendant has never moved to strike the existing pleading, nor has he provided any authority for the proposition that a plaintiff’s resolution of a criminal charge by way of a peace bond precludes an action for malicious prosecution.

[20] The defendant reviewed the amendments to the statement of claim and identified the specific pleadings that he objects to. These contested pleadings and my rulings are as follows (using the paragraph numbers from the proposed amended statement of claim):

Paras. 2.4-2.8: The defendant submits that these pleadings are not relevant to the claims for damages arising from the alleged assaults and malicious prosecution.

Ruling: The plaintiff pleads in these paragraphs the circumstances in which she and the defendant met while working at Sciex, their entering into a romantic relationship that lasted seven months, the ending of the relationship because the plaintiff did not want to participate in group sex and the resulting termination of her employment at Sciex for cause (which is pleaded in the existing statement of claim and which was never challenged as an improper pleading). I accept that these paragraphs plausibly provide context for the subsequently pleaded facts regarding the alleged assault and malicious prosecution, so these amendments are permitted. The only exception is the last sentence in paragraph 2.6, “Emir has also had a wife Gordana Prica Kovacevic”, which is irrelevant to the claims and is included for colour only, and accordingly, shall not be permitted as part of the amendments.

Para. 2.9: The defendant does not challenge this paragraph, in which the plaintiff describes the assault. No ruling is required but it should be noted that this paragraph corrects the date of the assault from August 17, 2016 to August 16, 2016.

Para. 3.2-3.6: The plaintiff pleads the resolution of the criminal charges against her through a peace bond and that, realizing that her employment was terminated on “discriminatory grounds” she filed the HRTO claim against her employer Sciex. She then pleads what transpired in the HRTO proceeding, including that the defendant was added to that claim based on allegations of sexual harassment, that the HRTO claim was settled with Sciex and the defendant, and that the settlement included a clause permitting her to claim damages against the defendant arising from the assault.

Ruling: As stated above, the pleading in paragraph 3.2 that “The criminal charges against Suzana were resolved through common-law peace bond” is a reiteration of a pleading in the existing statement of claim; this is not in substance an amendment and is therefore permitted. However, the balance of para. 3.2 and paras. 3.3-3.6 all relate to the HRTO proceeding, which, on the plaintiff’s own admission, is for relief separate from the causes of action advanced in this proceeding. Those pleadings are therefore irrelevant to the claims advanced and are not permitted.

Paras. 5.1 and 4.1 (on p. 8 of 9): In both these paragraphs, the plaintiff describes the defendant as “a high-functioning sociopath”.

Ruling: These words are inflammatory and inserted solely for colour and are therefore not permissible pleading. These amended paragraphs are permitted except for the allegation that the defendant “is a high-functioning sociopath”, which shall be removed.

Para. 5.0: The last two sentences of this paragraph refer to the plaintiff suffering from back and neck pain as a result of having to sleep on a concrete area in a jail cell. The defendant submits that any such damages could not flow from the alleged malicious prosecution on his part.

Ruling: The defendant may argue the issue of causation at trial, but this is still a tenable pleading. The amendment is permitted.

Para. 5.3: This paragraph contains a list of instances in which the plaintiff alleges that the defendant lied to the police resulting in the plaintiff’s damages arising from the alleged malicious prosecution.

Ruling: Although part of the fifth item, with respect to the location of the defendant’s car, veers into evidence as opposed to purely pleading material facts, the paragraph as a whole provides particulars of the alleged malicious prosecution and is permitted.

Para. 5.6: This paragraph pleads that the defendant has prolonged legal claims unnecessarily and as a result, the plaintiff has not been able to work.

Ruling: This allegation is irrelevant to any of the causes of action pleaded and is therefore not permitted. The plaintiff may make submissions regarding the defendant’s alleged litigation misconduct when addressing the issue of costs at the conclusion of the action.

[21] The defendant’s counsel also refers to an email of March 9, 2020 from the plaintiff to him, in which she states in the last paragraph that “the Defendant will be faced with my appeals to the OSCJ in regards to HRTO decision and this will be tied in litigation for the next 5-10 years at OSCJ rather than HRTO.” In the last paragraph, the plaintiff states: “The Defendant is again suggested to stop manipulations, procrastinations, lying and deceit because even if he wins this war by such means he will end up financially exhausted to Tufman Associates and the overall cost of “winning” will be too great to bear.” The defendant submits that the plaintiff’s threat to subject him to prolonged and expensive litigation reflects an abuse of the legal process on his part.

[22] The plaintiff’s motion to amend her statement of claim must be considered on its own merits and cannot be defeated on the basis of her threats communicated in her email. Accordingly, I have made my ruling on the motion as set out above. It will be open to the judge who ultimately decides the matter on the merits to determine whether the plaintiff’s conduct in the action as a whole amounts to an abuse of process deserving of sanction by the court.

[23] Defendant’s counsel also submits that because the plaintiff’s proposed amendments include a re-classification of the action as a Simplified Procedure action, there should be a specific order to that effect. The plaintiff wants to restore the action to the Simplified Procedure and the defendant does not object. I hereby order that the action henceforth proceed under the Simplified Procedure.

Orders on the motion including costs

[24] The plaintiff is hereby granted leave to amend the Amended Statement of Claim by way of a Fresh Amended Statement of Claim in the form of the Amended Statement of Claim found at Exhibit E to Ms. Kovacevic’s affidavit sworn September 10, 2021, subject to deletion of the passages and paragraphs ordered above. If the parties cannot agree on the form of the Fresh Amended Statement of Claim, they may arrange to speak to me regarding the issue. As indicated, the proceeding shall henceforth proceed under the Simplified Procedure.

[25] Defendant’s counsel seeks an order for further examination for discovery in relation to the amended pleading. He also seeks costs thrown away with respect to preparation of the original statement of defence and attendance at the plaintiff’s and defendant’s examinations for discovery because the amendments will require an amended statement of defence and further examinations. In this regard, he seeks costs of $4,000.00, payable before the plaintiff is permitted to proceed further with the action.

[26] The plaintiff submits that this is the first motion that she has brought in the action, and she has done so for the purpose of elaborating on the basis for her claim. With respect to the defendant’s submission that he should be awarded costs thrown away, the plaintiff submits that she has completed her own examination of the defendant and is not seeking any further examination so there are no costs thrown away in that regard. If the defendant requires a further examination of the plaintiff based on the amended pleading, the plaintiff agrees to re-attend for that purpose. The plaintiff submits that any costs thrown away should be costs in the action, rather than costs payable at this stage of the proceeding. She submits that she has been unemployed for the past three years so payment of costs at this stage would be a hardship.

[27] The amendments to the statement of claim will clearly result in additional costs to the defendant for which he should be compensated. These costs consist of the preparation of the original statement of defence, which must now be re-drafted, and the conducting of a further examination for discovery based on the additional allegations in the amended statement of claim. I assess these costs at a total of $3,000.00. As I am concerned that having to pay this amount now may delay the adjudication of this case on its merits, these costs shall be paid in any event of the cause.

[28] The additional terms of the order granting the plaintiff leave to amend the statement of claim are:

1. The defendant is granted leave to deliver an amended statement of defence within 30 days of the formal amendment of the statement of claim by way of the filing of a Fresh as Amended Statement of Claim in accordance with this order;
2. The plaintiff shall attend at a further examination for discovery with respect to the amendments to the statement of claim, not to exceed two hours, within 60 days of the delivery of the defendant’s amended statement of defence;
3. The plaintiff shall pay the costs thrown away of the defendant’s preparation of his original statement of defence and costs of the further examination for discovery fixed at $3,000.00 payable in any event of the cause, i.e. following the final disposition of the action.

[29] With respect to the costs of this motion, the plaintiff submits that those costs should also be part of the costs of the action, i.e. costs in the cause. The defendant submits that the reason that the motion was brought is that the original pleading was inadequate so that the costs burden should not be placed upon the defendant. He seeks the costs of the motion fixed at $2,000.00.

[30] It was open to the defendant to decide whether or not to oppose the plaintiff’s motion to amend her pleading and the parties appear to have achieved similar degrees of success on the issues argued. Separate from the costs thrown away arising from the amendments, I order that there shall be no costs of the motion itself.

[31] Finally, defendant’s counsel submits that any order should be made effective without the requirement for formal approval as to form and content. The problem with such an order in these circumstances is that the court registrar’s office will require a formal order to formalize the filing of the Fresh as Amended Statement of Claim. Accordingly, it is necessary for Ms. Kovacevic to prepare a formal order with the final form of the amended statement of claim attached as Schedule “A” and have it approved by defendant’s counsel. Ms. Kovacevic should be aware that until she does so, she will not be able to move forward with her action.

[32] With respect to the costs of the June 15, 2021 motion, the plaintiff requests that that issue be argued at the conclusion of her motion for production from Sciex which is now to be rescheduled. The defendant’s counsel Mr. Tufman advises that if the issue is deferred, he will be seeking costs of the further attendance in addition to the costs of his attendance on June 15, 2021. In any event, at the plaintiff’s request, this issue is deferred to the conclusion of the motion for production from Sciex.

ASSOCIATE JUSTICE GRAHAM April 19, 2022