Court File and Parties

COURT FILE NO.: CV-19-007-00 DATE: 2023-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Greg Sigurdson, Gina Sigurdson and Miranda Sigurdson Unrepresented Plaintiffs

• and -

Norbord Inc. and Resolute FP Canada Inc. C. Breukelman, for the Defendants Defendants

HEARD: October 6, 2022 at Fort Frances, Ontario

Madam Justice T. J. Nieckarz

Decision on Motion

Overview

[1] The Plaintiffs bring this motion further to my order dated August 12, 2022, for leave to deliver a Fresh Amended Amended Statement of Claim in accordance with the draft attached as Schedule “A” to this decision.

[2] This is the third motion heard in this action related to the Plaintiffs’ pleadings. The history of this matter will be set out in greater detail below. After striking the Plaintiffs’ pleadings twice, on August 12, 2022, I ordered that the Plaintiffs were required to seek leave of the court before they could deliver a further amended Statement of Claim.

[3] The Plaintiffs argue that they have corrected the previously identified deficiencies with their pleading and that leave should be granted.

[4] The Defendants argue that leave should not be granted for the following reasons:

a. The Plaintiffs, Miranda and Gina Sigurdson, have revised their Family Law Act (“FLA”) claims that were previously dismissed by me, to be derivative of Greg Sigurdson’s negligence claim instead. These claims were not previously pleaded, and are barred by operation of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B.

b. The Plaintiff, Greg Sigurdson, claims for loss of income in relation to his company (Siggy’s Trucking Ltd.). This is a claim that belongs to the corporation, not Greg, who is an independent contractor of the corporation. This claim, which was not pleaded in the original Statement of Claim, is also statute barred.

c. Paragraph 28 of the draft pleading is vexatious and irrelevant.

[5] For reasons outlined below the Plaintiffs’ motion is granted, in part.

Background

[6] The background for this case was set out in Sigurdson et. al. v. Norbord Inc., et. al., 2021 ONSC 5193. This was my first decision in which I struck the Plaintiffs’ claim with leave to amend to bring the FLA claims and for Greg to bring his negligence claim.

[7] As set out in that decision, this action arises out of the death of 28-year old Joshua Sigurdson (“Joshua”), who died while he was in the course of performing work for his employer, the Defendant Norbord Inc.

[8] The Plaintiffs, Greg and Gina Sigurdson are Joshua’s parents, while Miranda is his sister.

[9] The Plaintiffs amended their pleadings. For reasons set out in Sigurdson et. al. v. Norbord Inc., et. al., 2022 ONSC 4658, I struck the amended pleading. The pleading violated multiple rules of pleadings such that it could not be saved by amendment. I also dismissed the FLA claims of the Plaintiffs, as these claims were derivative of the claims of Joshua against the Defendants.

[10] Following the release of my first decision, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard and determined a Right to Sue Application pursuant to s. 31 of the Workplace Safety and Insurance Act, 1997, c. 16 (“WSIA”). WSIAT determined that Joshua’s right to sue the Defendants in relation to his workplace accident was extinguished by operation of the WSIA. Given that the Plaintiffs’ FLA claims were derivative of Joshua’s right to sue the Defendants, which was extinguished by WSIA, I dismissed those claims.

[11] This left Greg’s negligence claim. Given the concerns I expressed in my decisions related to the Statement of Claim and Amended Statement of Claim, I held that a further fresh as Amended Amended Statement of Claim could only be delivered with leave of the court.

Legal Framework for the Motion

[12] The legal principles governing pleadings are more particularly set out in my prior decision striking the original Statement of Claim. No further caselaw or authority was provided to me by either party in support of their positions.

[13] The Defendants rely on the Limitations Act, 2002, S.O. 2002, c.24, Sched. B. In particular, s. 4 of that Act requires a proceeding to be commenced in respect of a claim within two years of the day on which the claim was discovered.

[14] Section 5(2) operates as a presumption that a person knew about the claim on the day in which it occurred. This is subject to proof to the contrary.

[15] Section 21(1) prevents a person from being added as a party to an existing proceeding if a limitation period has expired.

[16] Typically, leave to amend a pleading will be granted unless the amendment is untenable at law; is scandalous, frivolous, vexatious or an abuse of the court’s process; or prejudice would result that could not be compensated for by costs or an adjournment. The onus of proving prejudice lies with the responding parties: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, at para. 25. Prejudice may occur where a limitation period has expired.

Analysis

[17] Paragraph 28 of the Fresh as Amended Amended Statement of Claim reads:

“Plaintiff Greg Sigurdson states he will forever lament what would have become of Joshua had he not enquired about road conditions”

Such statement in the context of this pleading is not appropriate and must be removed for leave to be granted to deliver the Amended Amended Claim. A pleading is to be a concise statement of material facts on which a party relies for their claim or defence. Laments and queries such as this violate the rules of pleading.

[18] The greater issue is whether Gina and Miranda’s FLA claims that are derivative of Greg’s negligence claim are statute barred, and whether the loss of income claim is also statute barred, and otherwise barred as being a claim belonging to Siggy’s Trucking Ltd.

[19] I did not receive any submissions as to the caselaw on this issue. This issue was considered in Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359, paras. 14 – 22. In that case, Nordheimer J., writing for the Divisional Court panel, reviewed the various authorities on this issue. Citing Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers, 2011 ONSC 6146, at para. 25, the Court noted that the defendants’ entitlement is to have notice of the factual matrix out of which the claim for relief arises. After reviewing other authorities, Nordheimer J., noted that Courts have previously allowed pleadings to be amended to assert a claim after the expiry of the limitation period if those claims were connected to the factual matrix pleaded in the original statement of claim.

[20] I find that the loss of income claim is connected to the factual matrix pleaded in the original statement of claim. In particular, I note paragraph 1(c) of the original claim.

[21] Having said this, the Amended Amended pleading as drafted remains somewhat confusing in that it appears to be claiming loss of income and earning capacity of Siggy’s Trucking Ltd. as the damages. While Greg is the principal of Siggy’s Trucking Ltd., what is (or should be at issue), is Greg’s loss of income suffered as a result of the alleged negligence. Paragraph 35 of the Amended Amended pleading needs further amendment to make this clear. Siggy’s Trucking Ltd., is not a party to this proceeding and therefore the only relevance of this entity is that Greg is the principal, and his earnings through his company have been allegedly impacted by the alleged negligence.

[22] I further find that it is arguable that the FLA claims of Gina and Miranda also arose out of the factual matrix that was pleaded in the original statement of claim, although I appreciate that these may be the more tenuous claims from a limitations perspective. Further argument with up to date and fulsome caselaw is required on this particular issue.

[23] I am prepared to grant leave to deliver the Amended Amended claim with the FLA and loss of income claims advanced, without prejudice to the right of the Defendants to advance a limitations defence to be either determined at trial, or prior to trial on a summary basis.

Order

[63] In light of the foregoing, leave is granted for the Plaintiffs to deliver their fresh as Amended Amended Statement of Claim with paragraph 28 struck, paragraph 12 struck, and paragraph 35 amended to make it clear that the loss of income and earning capacity is claimed by Greg, and not the non-party, Siggy’s Trucking Ltd. The pleading shall be served on the Defendants within 30 days of this decision and filed accordingly with the court with proof of service. Again, the Plaintiffs are strongly encouraged to obtain legal advice before proceeding any further with this case.

[64] If the parties cannot agree on costs:

(a) The party claiming costs shall serve and file written submissions within 30 days of the date of this decision, limited to 5 pages, double-spaced excluding attached Bill of Costs, caselaw and any other necessary documents to support their claim, failing which costs shall be deemed to have been settled.

(b) The responding party shall serve and file a response within 30 days of receipt of the written submissions claiming costs, with the response similarly limited to five pages, double-spaced, excluding attachments.

(c) A reply may be delivered within 15 days of receipt of the response, limited to two pages, excluding attachments.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: January 9, 2023

COURT FILE NO.: CV-19-007-00 DATE: 2022-01-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Greg Sigurdson, Gina Sigurdson, and Miranda Sigurdson Plaintiffs

• and - Norbord Inc. and Resolute FP Canada Inc. Defendants DECISION ON MOTION Nieckarz J. Released: January 9, 2023