Court File and Parties

COURT FILE NO.: CV-21-00000914-000 0 DATE: 2024/12/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OWEN OUELLETTE by his Litigation Guardian EDWARD OUELLETTE, EDWARD OULLETTE and STEPHANIE OUELLETTE, Plaintiffs AND: COUNTRY CORNERS RENT-ALL INC. and TEXTRON INC./ARCTIC CAT INC., Defendants AND: SCHLEGEL POULTRY INC.

BEFORE: Justice I.F. Leach

COUNSEL: Alexa Duggin, for the Plaintiffs Jiku Elamanthail, for the Defendant Country Corners Rent-All Inc. Rachel Cooper, for the Defendant Textron Inc./Arctic Cat Inc. David Persall, for the Third-Party Schlegel Poultry Inc.

HEARD: December 13, 2024

Endorsement

[1] The named plaintiffs herein have brought a motion to amend their extant statement of claim in the manner set forth in Schedule “A” to the notice of motion; e.g., to add Edward Ouellette as a named defendant to the proceeding, and substitute Stephanie Ouellette, (rather than Edward Ouellette), as the child plaintiff’s litigation guardian.

[2] As indicated during the course of submissions today, my preliminary view is that there is nothing inherently objectionable to addition of Mr Ouellette as a defendant, (e.g., insofar as no limitation period has operated vis-à-vis the child plaintiff, and the FLA claims in that regard are derivative), and that the proposed litigation guardian substitution is also appropriate, insofar as the child plaintiff now seeks to advance claims of negligence against his father but no claims against his mother. Without any positions being formally and decisively indicated yet in that regard by the responding parties, it appears from the submissions received today that those aspects of the requested relief are unlikely to be controversial or opposed, once responding party counsel obtain instructions having regard to the outcome of the remaining issue I independently raised, and which responding counsel then indicated was also a matter of concern for their clients; i.e., Mr Ouellette also remaining as a plaintiff in the action, asserting a claim for damages, (albeit FLA damages), arising in part, (according to the proposed amended statement of claim), from his own independent negligence.

[3] As I indicated during the course of submissions, in my preliminary view that suggestion and proposed approach to the litigation are inherently problematic and arguably inappropriate.

[4] Without limiting the generality of the foregoing, it was and remains a fundamental principle of common law that a person cannot sue himself for damages said to arise from and/or be based upon his or her own independent negligence; i.e., as opposed to liability arising solely by way of a statute without any assertion of such independent negligence. See Public Trustee v. Guaranty Trust Co. of Canada, [1980] 2 S.C.R. 931, and Dionisi v. Dionisi (1983), 42 O.R. (2d) 597 (H.C.J.).

[5] Without formally deciding the matter, (as plaintiff counsel essentially did not have an opportunity to prepare a response to the concern and authorities I raised in that regard), my preliminary view is that the proposed amended pleading is therefore impermissible, and that Mr Ouellette instead should be removed as a plaintiff while being added as a defendant; a defendant who then can deny negligence as a defendant, while advancing his FLA claim by way of crossclaims and/or third party claims if so advised. In that regard, it is also my preliminary view that his doing so would not be barred by operation of any limitation period; e.g., as his FLA claim is not only derivative to that of the child plaintiff, but was also advanced earlier, and the other defendants and third party clearly have had notice of Mr Ouellette’s FLA claim.

[6] For now, I will refrain from making any formal order, and am not seized of the matter.

[7] The motion instead will be adjourned to January 17, 2025, to allow plaintiff counsel time to give further consideration to the matter, allow for the involvement and input of Mr Watson, (who intends to represent Mr Ouellette as a defendant and possibly as a claimant), and allow the other responding parties to seek instructions in relation to whatever revised amended pleading plaintiff counsel may seek to propose.

[8] Costs of today are reserved to the judge hearing the motion on its merits.

[9] Matter adjourned to January 17, 2025.

Justice I.F. Leach Date: December 13, 2024