COURT FILE NO.: CV-18-594938
DATE: 2023 10 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HELEN KALKANIS, Plaintiff
- and -
ROCCO C. LOFRANCO, R.C. LOFRANCO BARRISTERS, also known as ROCCO C. LOFRANCO BARRISTERS and VENZENCIO MARIE LOFRANCO, also known as JEANNIE MARIE LOFRANCO, Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: B. Boggs, for the defendants, Rocco C. Lofranco, R.C. Lofranco Barristers, also known as Rocco C. Lofranco Barristers (moving parties)
A. Wilson, for the plaintiff
HEARD: July 25, 2023
REASONS FOR DECISION (Motion to Amend Statement of Defence)
[1] The defendants, Rocco C. Lofranco and R.C. Lofranco Barristers, also known as Rocco C. Lofranco Barristers (the “Defendant Lawyers”), move to amend their statement of defence and crossclaim to add a mitigation defence. The parties’ dispute is over the proposed addition of a single new paragraph comprising one sentence, which states, “The plaintiff has failed to mitigate her damages.”
[2] The plaintiff’s position is that the proposed amendment is insufficiently particularized and runs afoul of both pleading rules and established case law on amendments. The Defendant Lawyers’ position is that specific particulars are not required when pleading a failure to mitigate in a personal injury action.
[3] I am convinced by the plaintiff’s arguments that this is not a typical personal injury claim. Considering the specific allegations of negligence and misconduct by the defendants in the statement of claim and the disputed facts in this action, particulars of the alleged failure to mitigate are required. I am dismissing the motion, but without prejudice to the Defendant Lawyers moving again for leave to amend provided particulars of the alleged failure to mitigate are pleaded.
Analysis
[4] Rule 26.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) 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.
[5] Subrule 25.06(1) of the Rules is also relevant on this motion. It provides that 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. This requirement has been long viewed by the court as establishing a minimum level of fact disclosure that, if not reached, renders the pleading irregular: Copland v. Commodore Business Machines Ltd. (1985), 52 OR (2d) 586, 1985 CanLII 2190 (ON SC).
[6] Generally, amendments are presumptively approved, but there is no absolute right for parties to amend their pleadings. The court retains a residual right to deny amendments where appropriate. Four primary considerations have been identified for exercising that discretion: (i) an amendment should be allowed unless it would cause an injustice that could not be compensated in costs; (ii) the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious; (iii) an amendment should not be allowed that, if originally pleaded, would have been struck; and (iv) the proposed amendment must contain sufficient particulars: Marks v. Ottawa (City), 2011 ONCA 248 at para. 19.
[7] My role on this motion is not to examine the factual merits of the proposed amendment or the Defendant Lawyers’ motive for seeking the amendment. Rather, I am to examine whether, as a matter of law, the proposed pleading raises a tenable defence and whether the proposed amendment has been properly pleaded in the sense of complying with the rules that govern pleadings, including sufficient particularity: Brookfield Financial Real Estate Group Limited v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818 at para. 23. A pleading amendment should typically only be refused as being legally untenable if it is clearly impossible of success: Chinook Group Ltd v. Foamex International Inc. (2004), 72 OR (3d) 381, 2004 CanLII 33017 (ON SC) at para. 13.
[8] The Defendant Lawyers argue that particulars of a mitigation defence are not required in personal injury actions because mitigation is always an issue. They submit that there is a well-established principle that a plaintiff in a personal injury action has a duty to mitigate. The Court of Appeal has specifically observed that “personal injury victims must take all reasonable steps to avoid the negative consequences of their injuries and prevent the accumulation of losses since a defendant is not responsible for damages that could have been reasonably avoided”: Little v. Floyd Sinton Limited, 2019 ONCA 865 at para. 30.
[9] I do not disagree that the plaintiff has a duty to mitigate. However, there is no case law before me holding that a mitigation defence does not have to be particularized simply because the plaintiff in a personal injury action has an established common law duty to mitigate their losses and damages. There may well be cases where the nature of tortious conduct and the associated injuries allegedly suffered by a plaintiff render particulars unnecessary or overly formalistic. In my view, this is not that case.
[10] The plaintiff’s claim here does not arise solely from injuries suffered in a motor vehicle accident. The plaintiff is claiming damages for alleged solicitor negligence in handling her claims arising from a motor vehicle accident, including purported negligent advice in settling her claims. However, the plaintiff is also claiming damages for alleged sexual assault, sexual exploitation, and psychological manipulation in which the Defendant Lawyers are essentially alleged to have been knowingly complicit. Notably, the plaintiff pleads damages from the defendants’ conduct due to depression, loss of self-esteem, loss of sexual desire, impaired ability to trust others and form intimate, familial, and interpersonal relationships, impaired ability to deal with persons in authority, and ongoing psychological treatment and counselling.
[11] As clearly set out in their statements of defence, the defendants collectively deny the plaintiff’s allegations of misconduct and her characterization of events. Nevertheless, in the context of the plaintiff’s specific allegations against the defendants, which include identified impacts from their conduct, particulars of any alleged failure to mitigate are clearly necessary. For example, those particulars would presumably include details on how the Defendant Lawyers allege that the plaintiff could or should have mitigated the losses from their alleged negligence in handling and recommending settlement of her claims or the alleged damages from her claimed psychological distress and other impacts from the defendants’ purported misconduct.
[12] Proposed amendments are to be read generously: Brookfield Financial Real Estate Group Limited, supra at para. 23. Nevertheless, I agree with the plaintiff that the mitigation defence is so bare that a generous reading is not possible. In the circumstances of the plaintiff’s allegations in this case, I am unable to find that the proposed mitigation defence is legally tenable without further particulars.
[13] The Defendant Lawyers point to their co-defendant’s statement of defence, which pleads a similar unparticularized mitigation defence. That does not assist the Defendant Lawyers. The co-defendant’s pleading was filed with the court as of right under rule 18. Leave was not required. Civil intake staff cannot reasonably be expected to vet pleadings for sufficiency and compliance with pleadings rules. That is properly a judicial function. The co-defendant’s statement of defence has not come under similar judicial scrutiny by way of an opposed amendment motion. It may well be open for the plaintiff to challenge the sufficiency of how the co-defendant has pleaded the mitigation defence at or prior to trial. However, the sufficiency of the co-defendant’s pleading is not the issue before me on this motion.
[14] The Defendant Lawyers argue essentially that my focus should be on whether there is prejudice to the plaintiff that cannot be compensated in costs. They submit that there is no evidence or argument suggesting that the plaintiff will suffer any non-compensable prejudice from the proposed amendment. That is true. The plaintiff has not advanced any specific argument of prejudice. However, as set out in Marks v. Ottawa (City), discussed above, that is only one of the factors considered by the court. Sufficient particularization is necessary to frame not only relevance for discovery purposes, but also the scope of issues for trial. In my view, a general and unparticularized mitigation defence in the context of the plaintiff’s specific allegations of negligence and misconduct advanced against the defendants, and specifically the Defendant Lawyers, does not do that.
Disposition
[15] For the above reasons, the Defendant Lawyers’ motion is dismissed. The dismissal is without prejudice to the Defendant Lawyers’ moving again to amend if particulars of the alleged failure to mitigate are specifically pleaded.
Costs
[16] Costs outlines have been exchanged. I was advised that there had been offers to settle, so I could not hear costs submissions at the time of the hearing. Given the result, and subject to any offers to settle, I am inclined to award the plaintiff her costs of the motion.
[17] I encourage the parties to settle costs, but if they cannot, then costs submissions shall be made orally by thirty (30) minute hearing booked through my Assistant Trial Coordinator (ATC). Each party shall be entitled to ten (10) minutes of submissions, with the plaintiff entitled to five (5) minutes of reply. Any case law or offers to settle relied upon by either side shall be exchanged, submitted to my ATC, and uploaded to CaseLines at least five (5) days prior to the hearing. Only a hyperlinked list of cases is required for cases available on publicly accessible websites.
[18] The hearing for costs submissions shall be booked directly through my ATC within thirty (30) days of this decision being released, failing which the parties shall be deemed to have agreed on costs.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: October 26, 2023