COURT FILE NO.: CV-21-87726 DATE: 02/08/2023 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MELYNDA LAYTON Plaintiff/Moving Party – and – CANADIAN DENTAL HYGIENISTS ASSOCIATION and THE CORPORATION OF THE CITY OF OTTAWA Defendants/Responding Parties

Self-represented

Pierre Champagne for The Corporation of the City of Ottawa Craig O’Brien for Canadian Dental Hygienists Association

HEARD: June 28, 2023

Ruling on Motion to Amend Statement of Claim

Justice Sally Gomery

[1] Melynda Layton moves to amend her statement of claim. The Canadian Dental Hygienists Association and the City of Ottawa contests some of the proposed amendments on the ground that they plead irrelevant facts and legal conclusions, and they would have implications for a non-party. The Corporation of the City of Ottawa opposes other amendments on the basis that they are too vague. The remaining proposed amendments are not contested.

[2] For the reasons that follow, I grant the motion in part. Layton is authorized to amend her statement of claim to include the amendments not opposed by the defendants and to add a claim for moral damages against the City. She is also authorized to make amendments to some paragraphs opposed by the Association, so long as references to “11 Rosemount Street” or “11 Rosemount Avenue” or to multiple rights-of-way are removed. She is not authorized to amend the statement of claim rely on unspecified by-laws, legislation, or a regulatory framework in her claim against the City or in allegations about the City’s duties.

Background

[3] In 2007, Layton and her husband, Sean Terris, purchased a mixed use residential and commercial building at 1110 to 1116 Wellington Street West in Ottawa. The defendant Association purchased an office building at 1122 Wellington Street West in 2014.

[4] The dispute between Layton and the Association centres on Layton’s right to use a laneway on the defendant Association’s property to access the rear of her property by car. She claims that her property has a registered right of way or easement. The Association denies this. Layton and the Association have attempted at various times to reach an agreement for the use of each other’s property for parking and the clearing of snow, but the Association contends that any agreement reached has been revoked. Both parties accuse the other of breaching municipal by-laws.

[5] Layton began this action in October 2021 against the Association and the City of Ottawa. In the statement of claim as issued, she sought orders preventing the Association from blocking her access through the laneway and general and punitive damages for its alleged failure to respect her property rights. As against the City, she claimed an order requiring it to enforce its parking by-law and damages for lost revenue caused by its past failure to do so.

[6] Examinations for discovery were held in March 2023. During the examinations of the defendants’ representatives, their counsel refused questions on the basis that they were not grounded in allegations in the statement of claim. Layton adjourned the examinations and sent defence counsel a proposed amended statement of claim that is now the subject of this motion.

Governing Principles on a Motion for Leave to Amend

[7] Rule 26.01 of the Rules of Civil Procedure provides that: “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”. In Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296, at para. 36, the Court of Appeal explained the rationale for the rule:

The rule is designed to carry out the underlying principles reflected in the Courts of Justice Act, R.S.O. 1990, c. C.43, of encouraging public access to the courts (s. 71) and affirming the role of the Superior Court as a court of equity (s. 96) where actions are decided on their merits. Another purpose is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. The object of the rule requiring the court to grant leave to amend is not that the party’s case should be so framed as to succeed but that it be framed so that it can be adjudicated by the court, whether for or against the party.

[8] A court must grant leave to amend a pleading unless (1) the responding party would suffer non-compensable prejudice; (2) the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process or; (3) the pleading discloses no reasonable cause of action; 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, at para. 25.

[9] Although a r. 26.01 motion may be refused on the basis that the proposed amended pleading discloses no reasonable cause of action, the court’s assessment of tenability is the assessment engaged in a pleadings motion, as opposed to a motion for summary judgment under r. 20.04: Spar Roofing, at para. 43; 1317424 Ontario Inc. v. Chrysler Canada Inc., 2015 ONCA 104, 330 O.A.C. 195, at para. 7. As noted in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2016 Edition (Markham, ON: LexisNexis Canada, 2015), at p. 1151, cited approvingly in Spar Roofing at para. 43:

The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success.

[10] There is, finally, a technical consideration. A proposed amendment must comply with the rules that apply to all pleadings. Rule 25.06(1) and (2) provide that:

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

[11] The Ontario Court of Appeal has held that the rules applicable to all pleadings should be considered in the context of a motion to amend. In Marks v. Ottawa (City), 2011 ONCA 248, the Court noted that there is no absolute right to amend pleadings, and that the court has a residual right, notwithstanding r. 26.01, to deny leave to amend where appropriate. At para. 19, it noted that:

• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
• No amendment should be allowed which, if originally pleaded, would have been struck.
• The proposed amendment must contain sufficient particulars.

[12] Specific rules apply where a statute or regulation is raised in a pleading: Thompson v. T.T.C., [1947] O.W.N. 920, 1947 CarswellOnt 357, at para. 4. I will review these later.

The Proposed Amendments Regarding 11 Rosemount

[13] The Association consents to or takes no position with respect to most of Layton’s proposed amendments to the statement of claim. It objects only to proposed amendments at paragraphs 9, 10 and 23, in the first bullet at paragraph 24, and in paragraph 32. Through these amendments, Layton seeks to assert that another property, 11 Rosemount Street, also has a right-of-way or easement over the Association’s property at 1122 Wellington Street West.

[14] The City also objects to the proposed amendments at renumbered paragraph 23 and 32. Through these amendments, Layton seeks to allege that the City failed to investigate whether the Association was obligated to keep its laneway clear based on easements or rights-of-way in favour of her property and 11 Rosemount.

[15] The defendants object to these amendments on two bases.

[16] First, the property to which Layton means to refer is 11 Rosemount Avenue, not 11 Rosemount Street. 11 Rosemount Avenue abuts the Association’s land to the south while, according to the defendants, 11 Rosemount Street does not exist as a municipal address in Ottawa. In oral argument, Layton undertook to confirm the civic address of the property and to change the references in the amended pleading to 11 Rosemount Avenue if necessary.

[17] The second, more substantive, basis for objection is that, since neither party owns or has any legal interest in 11 Rosemount, the proposed allegations about its property rights are neither material nor relevant. Furthermore, asserting that 11 Rosemount has a right-of-way or easement invites the court to make findings of fact and law affecting the property of a non-party.

[18] Layton contends that the issue of whether 11 Rosemount has a right-of-way over the Association’s property is an issue for trial or for summary judgment, not an issue that should be resolved on a pleadings motion. Subsidiarily, she argues that the existence of other rights-of-way over the defendant’s property is relevant to whether the laneway can be encumbered and whether the City is required enforce parking and access by-laws in the laneway.

[19] The defendants would not suffer non-compensable prejudice if the amendments were authorized. They might be required to answer additional questions at discovery, but this additional burden could be addressed through costs. The question is whether proposed amendments should be disallowed because they do not comply with the rules of pleading.

[20] I conclude that, had the allegations regarding 11 Rosemount been included in the original statement of claim, they would not have survived a motion to strike under r. 21.01(3)(d) or 25.06(1). They are not allegations of material facts. The existence of a right-of-way or easement on the Association’s property in favour of a third party is, on its face, irrelevant to the court’s determination as to whether the plaintiff has a right-of-way or easement over the Association’s property. A third party’s property rights are likewise irrelevant to whether Layton can obtain an order requiring the City to enforce its by-laws in a way that recognizes her alleged rights over the Association’s property. Layton has no standing to assert property rights that belong to someone else.

[21] The proposed amendments are not harmless. Although Layton is not claiming any orders against or in favour of 11 Rosemount, she is inviting the court to make factual and legal determinations affecting its property rights. It is inappropriate to do this, given the potential ensuing prejudice to a non-party who has had no notice or opportunity to make submissions. An inquiry into the property rights of a third party is also a waste of the court’s resources.

[22] I am therefore refusing Layton leave to add allegations referring to 11 Rosemount. This includes all of paragraph 9; the plural form of “right-of-way” in paragraph 10; the phrase “or 11 Rosemount Street” in the fourth sentence of paragraph 23; the first bullet point in paragraph 24, and the reference to “11 Rosemount Street” in paragraph 32.

Other Proposed Amendments Opposed by the City

[23] The City opposes two other categories of amendments:

(i) Additional proposed language at paragraphs 2(a), 2(c), 22, 24, 28, 34, 39, and 43(d), on the basis that the resulting allegations are impermissibly vague.

(ii) Paragraph 2(e), because Ontario law does not recognize a claim for “moral damages”

[24] I do not agree with the City’s position on the proposed new language in paragraph 2(e). Without commenting on their availability in this case, I find that moral damages are a recognized category of damages under Ontario law. Layton therefore has leave to amend paragraph 2(e) as proposed.

[25] In amended 2(a), 2(c), 22, 24, 28, 34, 39, and 43(d), Layton seeks to expand her allegations against the City to refer not only to its parking by-law but to more generally to all of the City’s by-laws and any other laws or regulations to which it is subject. She proposes to amend paragraph 2(a), for example, to seek the following (the proposed amendments are underlined):

An Order requiring the City enforce the Planning Act, its by-laws, regulatory scheme and applicable legislation, including but not limited to, the General Regulations of By-Law Number 2017-301: Parking Rules of the Road and in particular requiring it to tocket and/or two all vehicles parked in the driveway/laneway providing access to 110-1116 [sic] Wellington Street West and Zoning Part 4 Parking Queuing and Loading Provisions Sections 100-114 so as to prevent the laneway over 1122 Wellington Street West be unencumbered [sic]”

[26] In amended paragraph 2(c), Layton would seek an order requiring the City to enforce “all by-laws with respect to property”. In amended paragraph 24, she seeks to allege that the City failed to consider its own “regulatory framework, including … zoning and planning by-laws”. In the proposed amendments to paragraphs 28, 34, 39, and 43(d), Layton seeks to make other allegations about the City’s obligations with respect to its “regulatory framework”

[27] As mentioned earlier, particular rules apply when a party is pleading reliance on laws or regulations. Where a statute is raised in a pleading, the section relied upon must be specifically pleaded: Flow Films v. Global Wealth Trade Corporation, 2011 ONSC 1185, at para. 9, citing Thompson v. T.T.C., [1947] O.W.N. 920, 1947 CarswellOnt 357, at para. 4; and Issa v. Kesserwani, 2019 ONSC 981, at para. 18.

[28] A defendant cannot meaningfully defend against an unparticularized allegation that it failed to respect a statute or regulation. It would have unrealistic and disproportionate discovery obligations. It might have difficulty identifying an appropriate representative for oral discovery or giving a representative on discovery instructions on how to prepare for the examination. These are not consequences that are compensable by way of costs.

[29] This is not a situation where the City could bring a motion for particulars to ascertain what specific parts of specific legislation it has allegedly failed to respect. Counsel for the City attempted to obtain particulars, by way of a letter to Layton on March 15, 2023, following receipt of the draft amended statement of claim. She never responded. In fact, in oral submissions, Layton contended that she cannot determine what by-laws, statutes or legislation the City has contravened unless she is permitted to examine the City’s representative on the allegations proposed in her pleadings motion. This is not a tenable position. A party is not permitted to make vague allegations in their pleadings in the hope that they will find a basis for their claim during discoveries.

[30] I accordingly conclude that Layton should not be granted leave to amend paragraphs 2(a), 2(c), 22, 24, 28, 34, 39, and 43(d) as proposed. With respect to paragraph 2(1), she may add the reference to “Zoning Part 4 Parking Queuing and Loading Provisions Sections 100-114” but not the reference to “the Planning Act, its by-laws, regulatory scheme and applicable legislation”. Leave is also denied to add the proposed words following the reference to the Zoning Part 4 (“so as to prevent the laneway over 1122 Wellington Street West be unencumbered”) since this phrase is unintelligible.

Disposition

[31] The motion is granted to permit Layton to amend her statement of claim to add proposed amendments, subject to the exclusions set out above.

[32] The amended statement of claim shall be reformatted so that the paragraph numbering remains consistent with the original statement of claim. New paragraphs shall be given new numbers. For example, the new paragraph after existing paragraph 8 shall be paragraph 8.1. Although the rules do not explicitly require this, this convention allows responding parties to plead to new allegations without unnecessary amendments.

[33] Both defendants have ten days from service of the issued amended statement of claim to serve an amended defence.

[34] The City asked for additional orders if I granted the motion. It wants leave to examine Layton for an additional hour and $3,000 for costs thrown away on discoveries.

[35] Layton argued that I could not grant the City further examination rights because this is a Rule 76 action and she has already been examined for three hours. Rule 76.04(2) states that: “no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined”. Rule 31.05.1, the equivalent rule with respect to non-rule 76 actions, provides that no party is entitled to more than seven hours of discovery “except with the consent of the parties or with leave of the court”. Rule 76.04(2) does not incorporate this language. Layton argues that this implies that the three hour maximum rule in r. 76.04(2) cannot be varied, even by the court.

[36] I do not agree. Rule 1.04(1) provides that the rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. R 3.02 (1) gives the court the power to extend or abridge any time prescribed by the rules, on such terms as are just. It would be unjust to interpret r. 76.04(2) in such a way as to deprive a defendant from exercising meaningful discovery rights when a plaintiff has amended their statement of claim to make substantive new allegations. Layton did not provide me with caselaw that would support the contrary conclusion.

[37] I accordingly conclude that the City should have an additional 45 minutes to examine Layton. I am not granting the City costs thrown away on the original discovery, as I have no reason to think that this was a completely unproductive exercise.

[38] If the parties are unable to agree on costs on the motion, they shall have until August 16, 2023 to serve and file submissions on their entitlement to costs. Each set of submissions shall not exceed three pages, although the parties may attach relevant documents to them. The parties need not file bills of costs as they have already done so.

Justice Sally Gomery Released: August 2, 2023