Court File and Parties
COURT FILE NO.: CV-19-0117-0000
DATE: 2023 03 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dawn-Marie Burton, Plaintiff
AND
Vanessa Docker and James Docker, Defendants
BEFORE: Justice Ranjan K. Agarwal
COUNSEL: Mary-Anne Strong, Counsel for the Plaintiff Jessica Naujokaitis, Counsel for the Defendants
HEARD: February 28, 2023
ENDORSEMENT
I. Introduction
[1] The defendants Vanessa Docker and James Docker move for leave to amend their statement of defence to plead the inevitable accident defence. The plaintiff Dawn-Marie Burton argues that notwithstanding the rule that leave to amend a pleading “shall” be granted, the Dockers’ delay in seeking this amendment is so lengthy and the justification so inadequate that there is presumptive non-compensable prejudice to her.
[2] The Dockers rear-ended Burton in April 2017 in Guelph. The Dockers didn’t explicitly plead the inevitable accident defence. The Dockers argue that Burton had notice of this defence since examinations for discovery in July 2020. The action is scheduled for trial in the May-June 2023 trial sittings. The Dockers’ factum states that, effectively, “an adjournment of the trial date is now requested.” The Dockers don’t explain their delay in pleading this defence since the action started or in seeking leave to amend their defence since examinations.
[3] I endorse an order dismissing the motion and awarding costs of $6000 to Burton. I agree that the Dockers’ delay in seeking this amendment and their failure to explain the delay is prejudicial to Burton. The Dockers haven’t rebutted this presumption.
II. Background Facts
[4] In April 2017, while Burton was stopped at a red light in Guelph, the Dockers rear-ended her. Burton’s accident benefit insurer has labelled her injuries “catastrophic”.
[5] Burton sued the defendants by issuing a statement of claim, in Guelph, in March 2019. The Dockers delivered a statement of defence and jury notice around a year later. The Dockers are represented by a lawyer appointed by Aviva General Insurance Company. The statement of defence is broadly worded to deny all liability and negligence but doesn’t specifically plead the defence of inevitable accident. The inevitable accident defence would, if successful, entirely defeat Burton’s claim. The Dockers don’t dispute that this amendment would have changed Burton’s litigation strategy.
[6] Vanessa was examined for discovery in July 2020. She testified about the accident:
- Q. So, starting off with I was traveling eastbound on Highway 7 I’d like you to describe for me what happened in the, in the accident?
A. I was driving along approaching the intersection and there was a loud bang and my, I kind of, I wouldn’t say I lost control but my car was hard to steer. I was coming up to an intersection so I steered onto the grass. The more I braked the harder the car pulled so I just went up onto the grass.
- Q. What, what next?
A. I reversed. I reversed backwards. The lady whose car I had touched at the back got, got out and said are you okay, what was the bang and I, I had realized when I reversed back out sort of along the grass that it was very bumpy and I looked and I said my, my wheel, tire blew. I said I’ve never had that happen before and I told her, I think I touched your car and she, she said to me, oh, did you and I, I had to point out to her where, where the mark was on the car. I said, yeah, it was only a little touch. She didn’t, she hadn’t obviously felt is because she didn’t know.
[7] The Dockers rely on this evidence as the basis for their inevitable accident defence. Though the Dockers also seek to rely on James’s discovery evidence that Vanessa told him that her tire had blown before the crash, this evidence is hearsay. I give it no weight on this motion.
[8] After the examination for discovery, Burton’s lawyer told the Dockers’ lawyer that if the Dockers “were to take the position that they bore no liability for this collision, he requested that this be communicated soon.” The Dockers don’t explain their delay in failing to move for leave to amend their defence in the over 2½ years since oral discoveries.
[9] The Dockers have disclosed a statement that Vanessa provided in February 2019. The Dockers haven’t produced the statement on the grounds of privilege.
[10] Burton set this action down for trial in May 2021. The parties unsuccessfully mediated the action in December 2021. There was a pretrial conference in August 2022.
[11] The trial of this action is scheduled for the May-June 2023 trial sittings. There is an assignment court hearing on April 24, 2023.
[12] In April 2020, Burton sued Manufacturer’s Life Insurance Company, in London, for STD and LTD benefits under her workplace group insurance policy. Manulife has defended that claim. That action has not been set down for trial. It’s a non-jury action.
[13] The Dockers moved to transfer this action against them from Guelph to London and for an order that the two actions be heard together. In February 2023, Regional Senior Justice Thomas dismissed the Dockers’ motion. See Burton v Docker, 2023 ONSC 1182. In his reasons, Regional Senior Justice Thomas specifically discussed the risk of delay to Burton as grounds for denying the Dockers’ motion:
[16] It is clear to me that to secure the most expeditious and least expensive trial of this action, it should remain in Guelph. (Rule 13.1.02(2)(b)(viii)). Transferring this five week jury trial to be tried with a non-jury trial that is not trial ready will significantly delay the trial.
[17] A transfer to London will then couple a non-jury contract dispute with a jury trial where the dynamics of the accident, liability and damages are in dispute. In all likelihood it turns a five week trial into a seven week trial.
[18] This action is on a trial list for this spring (2023) in Guelph. A seven week jury trial, even if ready for trial now, which it is not, would in all likelihood not be tried in London until 2025. As Regional Senior Justice, I am very aware of the demands on our London resources and our continuing judicial vacancies.
[19] It would not be in the interests of justice to cause such a delay.
[20] To be considered under this subsection, or perhaps r. 13.1.02(2)(b)(ix) as “any other relevant matter”, I consider the terms of the Insurance Act. Section 267.8 allows for a credit for sums paid by Manulife in the London accident benefits action, or an assignment to the defendants here of any sums paid by Manulife after this action has been tried. (Section 267.8(12)).
[21] Any further delay in the trial of this action increases the deductible year by year for claims for non-pecuniary general damages.
[22] Finally, the plaintiff’s claim for pre-trial income loss is limited to 70 percent of the loss. Any post-trial damages for lost income are compensable at 100 percent. (Section 267.5(1)).
III. Legal Principles
[14] 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. See Rules of Civil Procedure, r 26.01; Horani v Manulife Financial Corp., 2023 ONCA 51, at para 15.
[15] In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading. See Rules of Civil Procedure, r 25.07(4).
[16] In 1588444 Ontario Ltd. v State Farm Fire and Casualty Co., 2017 ONCA 42, at para 25, the Court of Appeal summarized the general principles regarding leave to amend motions:
- the rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice
- the amendment may be permitted at any stage of the action
- the prejudice must flow from the amendments and not from some other source
- the non-compensable prejudice may be actual prejudice—evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a result of the amendment (specific details must be provided)
- non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial
- at some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed
- the onus to prove actual prejudice lies with the responding party
- the onus to rebut presumed prejudice lies with the moving party
- when the delay in seeking amendment is lengthy, courts will presume prejudice to the responding party and the onus to rebut the presumed prejudice lies with the moving party
[17] Requiring a party to change its entire litigation strategy late in the litigation is non-compensable prejudice. See Horani, at para 36; Fam. Delicatessen Ltd. v London (City), 2006 CanLII 5135 (Ont CA), at para 7.
[18] The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious. See Marks v Ottawa (City), 2011 ONCA 248, at para 19.
[19] In Toronto Standard Condo. Corp. No 2051 v Clairlea Inc., 2016 ONSC 2948, Associate Judge Haberman held that if a proposed amendment has “been forecast by evidence disclosed at discoveries”, leave to amend should be granted and any prejudice dealt with by costs or an adjournment. This decision aligns with the Court of Appeal’s framework, which acknowledges that, in some cases, the presumed prejudice overrides the salutary effects of an adjournment or costs order.
IV. Preliminary Issue: Do the Dockers needs leave?
[20] A party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court, subject to certain limited exceptions. See Rules of Civil Procedure, rule 48.04(1)). This rule was changed in May 2021—under the old rule, any party who has consented to the action being placed on a trial list also could not initiate or continue motions. See O Reg 343/21, s 1.
[21] Burton argues that because the Dockers agreed that this action could be placed on the trial list, they need leave for this motion. Though rule 48.07 states that “all parties shall be deemed to be ready for trial” when an action is placed on the trial list, the amendment to rule 48.04(1) seems to expressly allow the Dockers to move, without leave, after the action is set down for trial even though the action is on the trial list. In any event, “leave to bring a motion to amend a pleading under Rule 48.04(1) is shaped by the requirements of Rule 26.01”. See Horani, at para 22.
V. Disposition and Analysis
[22] Burton does not argue actual prejudice. Instead, she argues that the Dockers’ delay in seeking this amendment was so lengthy and the justification so inadequate that prejudice should be presumed. She also argues that the proposed amendment is not prima facie meritorious.
[23] In Horani, the plaintiffs sought leave to amend their pleading 7½ years after the accident and 4 years after the action was set down for trial. In Family Delicatessen, the plaintiffs moved for leave to amend their statement of claim to add new causes of action against a nominal defendant over 6 years after starting the action. In State Farm, the defendant moved for leave to abandon a defence and a new defence 8½ years after the incident.
[24] Here, the delay is slightly shorter—around 4 years since the action was started. But nothing in the caselaw establishes a bright-line or even a rule of thumb for how long a delay must be for it to be so lengthy that it’s presumptive prejudicial. And, unlike those other cases, the hearing of this motion was less than 10 weeks from the start of the trial sittings. Further, Thomas RSJ has already found that delay of this trial “would not be in the interests of justice” given that the deductible increases annually for the non-pecuniary general damages claims.
[25] The Dockers don’t explain this delay in any of the three affidavits they have filed on this motion (all of which are from their lawyer not them). The defence of the “blown tire” should have been pleaded a long time ago. Though the Dockers’ lawyer is appointed by their insurer, it’s still their defence. If Vanessa, the Dockers’ insurer, and the Dockers’ lawyer knew about the loud bang and blown tire in February 2019, the Dockers haven’t explained why they waited until now, a few weeks before trial, to plead this defence. The Dockers’ insurer and lawyer also haven’t explained when they learned about these facts.
[26] If Vanessa didn’t tell the insurer or her lawyer about the loud bang and blown tire until she disclosed these facts at examinations for discovery, the Dockers haven’t explained why she waited so long to share this critical fact.
[27] Further, the Dockers haven’t explained why they waited over two years after discoveries to move for leave to amend their statement of defence to plead these facts and defence.
[28] The inevitable accident defence might have changed Burton’s entire litigation strategy. Though this prejudice could be addressed through appropriate orders regarding the conduct of the trial or an adjournment of the trial, and concerning discovery and expert’s reports, Burton should not be put in the position of delaying the trial, which is not in the interests of justice, because the Dockers failed to plead this defence promptly.
[29] I also put some weight on rule 48.07(a). Though the Dockers are entitled to seek leave to amend their pleading any time, even after trial, they were deemed to be ready for trial when this action was placed on the trial list after the pre-trial conference. Obviously, they weren’t ready for trial given they now seek an adjournment. That they haven’t explained this discrepancy is further evidence of the presumed prejudice to Burton.
[30] I find that the Dockers delay in seeking an amendment is so lengthy and their justification so inadequate that prejudice to Burton is presumed. I also find that the Dockers have not displaced their onus to rebut presumed prejudice. I endorse an order dismissing the Dockers’ motion for leave to amend their statement of defence to plead the inevitable accident defence.
[31] Burton also argues that the Dockers’ defence is unmeritorious. Given my disposition on the basis of presumed prejudice, I need not make any findings on whether the claim is prima facie meritorious.
VI. Costs
[32] Subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. See Courts of Justice Act, RSO 1990, c C.43, s 131.
[33] In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, together with the result in the proceeding and any offer to settle or to contribute made in writing, the factors listed in rule 57.01 of the Rules of Civil Procedure.
[34] In the usual case, costs are awarded to the prevailing party after judgment has been given. The traditional purpose of an award of costs is to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed). Costs awards are “in the nature of damages awarded to the successful litigant against the unsuccessful, and by way of compensation for the expense to which he has been put by the suit improperly brought”. See Brit. Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at paras 20-1.
[35] The main goal is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay for the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. See Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (Ont. CA) at para 26.
[36] Although each costs assessment is a fact-driven exercise related to a particular case, consistency with comparable awards in like cases is desirable and the reasonableness of costs that represent an outlier must be objectively scrutinized, considering the chilling effect on litigation that this kind of award could have. See Boucher, at para 63. That said, the amount of the costs award by itself does not mean that the award is unreasonable or reflect an error in principle. See Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587 at para 64.
[37] The party seeking costs bears the burden of proving them to be reasonable, fair, and proportionate. The absence of dockets is not an automatic bar to proving or receiving an award of costs. See Leonard v Zychowicz, 2022 ONCA 212 at para. 33. That said, absent dockets, a description of the activities for which fees and disbursements are claimed must be sufficient to permit for the kind of close scrutiny that the court is required to undertake. The material provided for the assessment must allow the court to come to a conclusion about the time reasonably required by the party seeking costs to deal with all aspects of the proceedings for which costs are claimed, including whether there was over-lawyering or unnecessary duplication of legal work. Bald statements do not assist the court with this task but give rise to the kind of mechanical calculation of hours times rates that the court cautioned against in Boucher. See Apotex, at para 66.
[38] Burton’s partial indemnity costs are $6000, inclusive of fees, taxes, and disbursements. The Dockers’ partial indemnity costs are $3677.23. Given the importance of this issue to Burton and the Dockers’ failure to adduce any evidence on the main issue in dispute (their justification for the lengthy delay), I find that Burton’s costs are reasonable, fair, and proportionate. I endorse an order fixing the costs of the motion in the amount of $6000 and order them to be paid within 30 days.
[39] I’m not seized.
Agarwal J.
Date: March 28, 2023
COURT FILE NO.: CV-19-0117-0000
DATE: 2023 03 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dawn-Marie Burton, Plaintiff
AND:
Vanessa Docker and James Docker, Defendants
BEFORE: Justice Ranjan K. Agarwal
COUNSEL: Mary-Anne Strong, Counsel for the Plaintiff Jessica Naujokaitis, Counsel for the Defendants
ENDORSEMENT
AGARWAL J.
DATE: March 28, 2023