Court File and Parties

Court File No.: CV-19-00080283-0000 Date: 2024/04/09 Superior Court of Justice - Ontario

Re: Elaine Wallace, Plaintiff And: Charm Jewelry (Ontario) Limited, Defendant

Before: Associate Justice M. Fortier

Counsel: Cheryl Letourneau, for the Plaintiff Mark Tector, for the Defendant

Heard: January 18, 2024

Endorsement

[1] This is a motion by the plaintiff for leave to amend her Amended Statement of Claim to add two claims: one for aggravated damages and one for unpaid overtime wages. This arises in the context of a wrongful dismissal action being pursued by the plaintiff. The plaintiff claims she was constructively dismissed from her employment as a salesperson in December 2017, following what she viewed as inappropriate behavior by her supervisor, creating a toxic environment in the workplace causing her stress and affecting her health.

[2] This proceeding was commenced by Statement of Claim in May of 2019, which was prepared by the plaintiff’s former lawyer. It has subsequently proceeded at a very slow pace. The matter is still at the pleadings stage. The original Statement of Claim was amended on consent by the plaintiff’s original lawyer, in circumstances discussed below. This consent amendment deleted from the Statement of Claim the plaintiff’s claim for aggravated damages and for unpaid overtime wages.

[3] The plaintiff subsequently changed lawyers in June of 2023. The plaintiff’s present counsel brings this motion to amend the Amended Statement of Claim to restore the plaintiff’s original claims for aggravated damages and unpaid overtime wages.

Plaintiff’s position

[4] The plaintiff argues there was no apparent reason for her former lawyer to have agreed to these amendments deleting her claim for aggravated damages and for overtime wages. The plaintiff also relies on Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states as follows:

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] The plaintiff correctly points out that leave to amend pleadings is presumptively granted in the absence of prejudice which cannot be compensated for in costs. Accordingly, the plaintiff submits as follows:

(a) The amendments will not result in irremediable prejudice. This matter, despite being commenced in 2019, is still in the early stages. No steps other than the exchange of pleadings and affidavits of documents have taken place. The parties have not attended examinations for discovery, so no re-examination is required. Mediation still needs to take place. (b) The proposed amendments are legally tenable. In fact, the proposed amendments were previously plead and their legal tenability was not challenged. At this stage, the Plaintiff is merely reasserting claims that her previous counsel had removed. (c) The proposed amendments comply with the rules of pleadings.

Defendant’s position

[6] The defendant employer submits the plaintiff’s motion should be denied because the amendment would constitute an abuse of process and, in any event, would cause non-compensable prejudice because the applicable limitation for these two claims has long since expired.

[7] I am of the view that the defendant’s objections to the proposed amendments are well taken and that the amendments should be denied.

[8] As noted, the amendments, if allowed, would reinstate claims which were previously agreed between counsel to be deleted. The plaintiff can not simply through the device of changing counsel be permitted to resile from binding agreements entered by her previous counsel on her behalf. To do so would constitute an abuse of process and would undermine the policy of encouraging counsel to enter into agreements to further the timely and cost-effective progress or resolution of their client’s civil proceedings.

[9] The defendant explained the reason for the agreement of the parties to a consent order removing the plaintiff’s claim for aggravated damages from the original statement of claim. Essentially, the plaintiff had lodged a claim for workplace injury with the Workplace Safety and Insurance Board in relation to what the defendant claims are the same injuries which comprise her claim for aggravated damages in this proceeding.

[10] The plaintiff’s former counsel engaged with the defendant’s counsel on this issue and on December 22, 2022, the plaintiff’s counsel advised that his client’s instructions were to remove the claim for aggravated damages. Ultimately, counsel agreed to amend the Statement of Claim to withdraw the plaintiff’s claim for aggravated damages and, as well, the claim for overtime wages. The plaintiff’s former counsel stated the following in a communication to the defendant’s counsel:

Please also be advised that my client has instructed that we are to forego the allegation in the lawsuit claiming unpaid overtime. For absolute clarity, this is to say that my client is not pursuing her allegations as set out in paragraph 1(e) in the original statement of claim and in paragraph 24. For absolute clarity, this statement is being made for the record such that your client may rely upon it. Being that the amended claim has yet to be finalized, I would am [sic] seeking your consent that the amended claim also have paragraph 1(e) and paragraph 24 struck.

[11] In addition, the parties agreed that the Amended Statement of Claim would continue under Rule 76 Simplified Procedure and be subject to the applicable monetary limit. This proceeding has in fact continued under Rule 76 and neither side has sought to resile from that aspect of the agreement. These amendments to the original Statement of Claim were done on consent of counsel and on an agreed upon no cost basis.

[12] I also accept the defendant’s submission that reinstating the claim for aggravated damages and for overtime wages would contravene the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. As discussed, these claims were deleted from the original Statement of Claim. These claims arise from the termination of the plaintiff’s employment in 2017. The two-year limitation for asserting these claims has long since expired. The Court of Appeal for Ontario has recognized that the expiry of an applicable limitation period is a form of non-compensable prejudice that would preclude a pleadings amendment to assert such a claim: see United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, at paras. 64-65.

Disposition

[13] The requested amendments to the Amended Statement of Claim will not be permitted as they contravene the Limitations Act and if allowed at this time would constitute non-compensable prejudice to the defendant. Furthermore, the proposed amendments, if allowed, would constitute an abuse of process given the agreement of counsel to remove these claims from the action by way of consent amendment to the Statement of Claim.

[14] This action will proceed under the Rule 76 Simplified Procedure and in accordance with the procedural directions recently issued by James J.

[15] The defendant is entitled to its costs which I fix in the sum of $3,500 inclusive of disbursements and HST, payable by the plaintiff to the defendant within 30 days.

Associate Justice M. Fortier Released: April 9, 2024