Court File and Parties

COURT FILE NO.: CV-21-00663482-0000 MOTION HEARD: 31082022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIMBERLY EVANS, plaintiff/moving party AND: HARRY R. BURKMAN, defendant/responding party

BEFORE: Associate Justice R. Frank

COUNSEL: Teilen Celentano for the plaintiff/moving party Harry Burkman for himself and Print Production Limited

HEARD: August 31, 2022

Endorsement

[1] This is a motion by the plaintiff for leave to add Print Production Limited (“PPL”) as a defendant to this action and to amend the statement of claim and title of proceedings to reflect the addition of that party.

[2] The plaintiff’s claim in the underlying action is for wrongful dismissal. Mr. Burkman has defended the claim and served a statement of defence dated July 5, 2021 alleging that he was not the plaintiff’s employer and that her employer was PPL.

[3] After receiving the statement of defence, plaintiff’s counsel contacted the defendant and advised of the plaintiff’s intention to amend the statement of claim to add PPL as a defendant to the action. Plaintiff’s counsel requested consent from Mr. Burkman and PPL, the responding parties, to the proposed amendment in October 2021 and again in November 2021 so that the motion could proceed in writing. The responding parties did not consent.

[4] The plaintiff then brought this motion, originally without notice, and it was returnable before Associate Justice La Horey on March 15, 2022. Associate Justice La Horey adjourned the motion to an oral hearing on notice to the defendant and proposed defendant. While this motion remained pending, the plaintiff commenced a separate action against PPL on August 23, 2022.

[5] The sole issue on this motion is whether the plaintiff should be granted leave to amend the amend the statement of claim to add PPL as a defendant to this action.

[6] Rule 26.01 of the Rules of Civil Procedure provides that leave to amend shall be granted on such terms as are just unless prejudice would result that could not be compensated with costs or an adjournment. The plaintiff submits that there is no non-compensable prejudice in this case because she is seeking to amend the statement of claim to add PPL as a defendant within the applicable two year limitation period.

[7] In the statement of claim, the plaintiff alleges that she received a lay‑off notice (which she alleges was constructive dismissal) on April 7, 2020 and that the lay-off was effective on April 15, 2020. However, the plaintiff submits that the limitation period did not begin to run until September 14, 2020, because all limitation periods were suspended from March 16, 2020 to September 14, 2020 by the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 and Ontario Regulation 73/20 made under that statute (“Reg. 73/20”). The plaintiff argues that, as a result of the suspension pursuant to Reg. 73/20, the limitation period has not yet expired. In support of her position that her wrongful dismissal claim against PPL is not statute barred, the plaintiff relies on McAuley v. Canada Post Corporation, 2021 ONSC 4528 (“McAuley”) and various other decisions, including Go Fleet Corporation v. So, 2021 ONSC 2199 (Div. Ct.) and Fong v. Big Picture Home Entertainment Limited, 2020 ONSC 7503.

[8] The responding parties’ position is that the motion should be dismissed. First, the responding parties argue that the supporting affidavit of counsel for the plaintiff is improper and should be struck out or disregarded. The responding parties argue that the affidavit includes unsupported facts and improper argument and opinion. The responding parties also submit that the affidavit is improper because the affiant, the plaintiff’s lawyer, had no proper basis to state that he had direct knowledge of the information in the affidavit and that, as a result, all of the evidence in the affidavit should be “disqualified”.

[9] While portions of the affidavit filed in support of the plaintiff’s motion (such as paragraphs 9 and 10) contain argument or submissions that would be more appropriately included in a factum than an affidavit, in my view that does not taint the entire affidavit. In any event, the only facts necessary to determine the issue on this motion are uncontested, as is clear from the pleadings and as acknowledged by Mr. Burkman during oral argument. Specifically, the responding parties acknowledge that the event giving rise to the plaintiff’s claim (i.e. the notice to the plaintiff that she was being laid off) occurred on April 7, 2022 and took effect on April 15, 2022.

[10] The responding parties take the position that the revocation of Reg. 73/20 effectively rescinded any benefit it otherwise may have conferred with respect to the suspension of the applicable limitation period. The responding parties submit that the wording of subsections 7.1.(2) and (6) of the Emergency Management and Civil Protection Act and sections 1, 2 and 6 of Reg. 73/20 are ambiguous as to whether the temporary suspension is to be counted after the revocation of Reg. 73/20. The responding parties assert that, as a result, the provisions indicating that the temporary suspension is to be counted are void for vagueness and uncertainty.

[11] In support of their position, the responding parties rely on Ontario General for Ontario v. Persons Unknown, 2020 ONSC 6974 (“Persons Unknown”) and McAuley, as well as general principles of statutory interpretation. I do not accept the responding parties’ argument with respect to the effect of the revocation of Reg. 73/20. In Persons Unknown, Myers J. simply declined to make the requested declaration that the temporary suspension period shall not be counted against any applicable limitation period because he concluded that the application was neither efficacious nor appropriate. In the circumstances of this case, I find that the limitation period with respect to the plaintiff’s proposed claim against PPL has not yet expired. In this regard, I adopt the conclusions reached by Boswell J. in McAuley at paragraphs 42-43:

42 The plaintiff takes the position, and I agree, that the effect of Reg. 73/20 was to extend any running limitation period by 183 days. In other words, all limitation periods subject to the regulation were extended by roughly six months.

43 Heritage argues that it is wrong to interpret the effect of Reg. 73/20 as extending a limitation period. But it has not articulated why, other than to suggest that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred. I do not accept Heritage's argument. It appears clear to me that any limitation period that otherwise would have run between March 16, 2020 and September 14, 2020 was suspended during that period. Those days do not get counted in the calculation of the limitation period. [emphasis added][^1]

[12] Applying this reasoning to present case, I find that the period from April 15, 2020 (or April 7, 2020) to September 14, 2020 does not get counted in the calculation of the limitation period with respect to the plaintiff’s claim against PPL, and the limitation period will only expire two years after revocation of Reg. 73/20.

Disposition

[13] For the reasons outlined above, I grant leave to the plaintiff to add Print Production Limited as a defendant to the action and to amend the statement of claim and title of proceedings to reflect the addition of that party.

[14] The plaintiff submitted that, if successful, she should be awarded costs in the amount of $1,000. The responding parties acknowledged that if the plaintiff succeeded on this motion, a cost award in that amount was reasonable. As the plaintiff was successful on this motion, I order the responding parties to pay the plaintiff costs fixed in the amount of $1,000, inclusive of disbursements and taxes, within 30 days.

R. Frank Associate J.

Date: September 2, 2022

[^1]: See also Fong v. Big Picture Home Entertainment Limited, 2020 ONSC 7503 at paras 2-3, and Go Fleet Corporation v. So, 2021 ONSC 2199 (Div. Ct.) at para 3