Ontario Superior Court of Justice

Court File No.: CV-22-23
Date: 2025-01-27

Between

Paula Boutis
Plaintiff/Moving Party
Counsel for the Plaintiff: Saba Amad

and

The Corporation of the County of Norfolk, The Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp and Jason Burgess
Defendants/Responding Parties
Counsel for the Defendants The Corporation of the County of Norfolk, The Board of Health for Haldimand-Norfolk Health Unit: Casey Dockendorff, Laura Freitag
Counsel for the Defendants Kristal Chopp and Jason Burgess: Clarence L. Bennett, K.C.

Heard: December 19 and 20, 2024

Endorsement on Motion to Amend Plaintiff’s Statement of Claim
Justice M. Valente

Overview

[1] The Plaintiff brings this motion pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") to seek leave to amend her statement of claim. The proposed amendments are significant. They include five alleged new causes of action: (i) breaches of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"); (ii) intrusion upon seclusion; (iii) intentional interference with contractual relations; (iv) negligent infliction of mental suffering; and (v) defamation. In addition, the amendments both delete allegations from the most current version of the issued pleading and advance new allegations.

[2] Briefly, the Plaintiff’s submission is that leave ought to be granted to amend the statement of claim because each of the new proposed legal theories of liability is based on the same facts that support the currently advanced causes of action, and therefore, are not barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the "Limitations Act"). Otherwise, the Plaintiff’s position is the proposed amendments allege material facts, provide particulars, and comply with the Rules.

[3] On the other hand, the Defendants jointly submit that the new causes of action are barred by limitation periods and the new allegations violate the rules of pleading. These violations include the pleading of immaterial facts, similar fact evidence, opinion evidence and previously abandoned or withdrawn allegations. For these reasons the Defendants oppose the Plaintiff’s motion for leave to amend her statement of claim.

Factual Background and Procedural History

[4] The Plaintiff was formerly employed as the county solicitor for the Defendant, the Corporation of the County of Norfolk (the "County"). The Plaintiff commenced her employment on September 3, 2019 and was terminated on a without cause basis on November 17, 2021. The County is a single-tier municipal corporation located in southern Ontario with a population of approximately 63,000 residents.

[5] The Defendant, the Board of Health for Haldimand-Norfolk Health Unit (the "BOH") acts as the board of health for both Haldimand and Norfolk Counties.

[6] The Defendant, Kristal Chopp ("Chopp"), is the former mayor of the County. The Defendant, Jason Burgess ("Burgess") is the former chief administrative officer of the County.

[7] On February 4, 2022, the Plaintiff’s former counsel filed a statement of claim for, among other relief, damages for wrongful dismissal. The Plaintiff retained her current counsel in mid November 2023.

[8] On May 17, 2022, the Defendants filed their joint statement of defence. The Defendants were collectively represented by the same legal counsel until mid February 2023 at which time Chopp and Burgess retained separate counsel.

[9] The statement of claim has undergone five revisions since its issuance in February, 2022. These revisions are described below:

• (i) On April 14, 2022, the first amendment to the pleading was made prior to the Defendants delivering their statement of defence.
• (ii) On September 5, 2023, the Plaintiff sought and obtained the Defendants’ consent to a second amendment to her statement of claim.
• (iii) On October 6, 2023, the Plaintiff sought and once again obtained the Defendants’ consent to amend her claim. The Amended Fresh as Amended Statement of Claim was issued on November 16, 2023 and is sometimes referred to by the parties and in this Endorsement as the "Fallback Claim".
• (iv) On December 7, 2023, the Plaintiff’s current counsel served a fourth amended version of the statement of claim to which the Defendants refused their consent. It is this Fresh as Amended Statement of Claim, dated and served on December 7, 2023, that is the subject of the Plaintiff’s motion for leave (the "Proposed Amended Claim").
• (v) On February 16, 2024, the Plaintiff circulated a fifth amended version of the proposed pleading to which the Defendants again objected.

[10] The Plaintiff’s fifth proposed amended pleading, circulated to defence counsel on February 16, 2024, is not in the court record. It is neither in the original motion record, dated March 19, 2024, nor in the amended motion record, dated December 9, 2024. The only proposed amended version of the statement of claim before the court is that which is dated December 7, 2023 and attached to the Plaintiff’s notice of motion, dated December 19, 2023 otherwise referred to in this Endorsement as the "Proposed Amended Claim". For this reason, my ruling addresses the proposed amendments in this draft pleading.

Guiding Principles

[11] Rule 26.01 provides that on motion at any stage of the proceeding the court shall grant leave to amend a pleading on such terms as are just save and except where prejudice would result that could not be compensated for by costs or an adjournment.

[12] "Although the general rule is that amendments are presumptively approved", as the Court of Appeal makes clear in Marks v. Ottawa (City), 2011 ONCA 248"there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson..." (at para 19).

[13] The principles applicable to granting leave to amend pleadings are summarized by the Court of Appeal in its 2017 decision of 1588444 Ontario Ltd. v. State Farm Fire and Casualty, 2017 ONCA 42 ("1588444 Ontario") where Hourigan J.A., states the following:

• The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action.
• The amendment may be permitted at any stage of the action.
• There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.
• The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, 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.

(at para 25, citations omitted)

[14] The expiry of a limitation period is one form of non-compensable presumed prejudice. "A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period" (see: Klassen v. Beausoleil, 2019 ONCA 407 ("Klassen"), at para 26). "An amendment will be statute-barred if it seeks to assert a 'new cause of action' after the expiry of the applicable limitation period..." (see: Klassen, at para 27). However, unless the limitation issue to prevent an amendment is clear"the Court of Appeal has expressed a reluctance to make findings about limitation periods in the absence of a full record" (see: Vale Canada Limited v. Solway Investment Group Limited et al, 2021 ONSC 7562 ("Vale Canada"), at para 89, referring to Clark v. Ontario (Attorney General), 2019 ONCA 311, at paras 47-50).

[15] "[T]he case law discloses a 'factually oriented' approach to the concept of a 'cause of action' – namely, 'a factual situation the existence of which entitles one person to obtain from the court a remedy against another person...'" (see: Klassen, at para 27).

[16] "An amendment does not assert a new cause of action – and therefore is not impermissibly statute-barred if the 'original pleading ... contains all the facts necessary to support the amendments ... [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded'" (see: Klassen, at para 28).

[17] For example"if the original claim pleaded a series of facts and alleged that those facts constituted a tort, an amendment to plead breach of contract arising out of those same facts would not trigger a limitation period. By contrast, what may trigger a limitation period are fundamentally different facts and a fundamentally different claim" (see: Vale Canada, at para 117, relying upon Klassen, at paras 27-30).

[18] Finally, as the Court of Appeal makes clear in Klassen that on a Rule 26.01 motion"it is necessary to read the original Statement of Claim generously and with some allowance for drafting deficiencies..." (at para 30).

[19] The proposed amendments must otherwise comply with the rules of pleading. For example, the proposed amendments must not be "scandalous, frivolous or vexatious" (Rule 25.11(b)); but must contain a "concise statement of the material facts" relied on "but not the evidence by which those facts are to be proved" (Rule 25.06(1)); and the proposed amendments are not to be "an abuse of the process of the court" (Rule 25.11(c)).

[20] In George v. Harris, [2000] OJ No 1762 ("George"), Epstein J. describes a proposed amended pleading that is scandalous, frivolous, or vexatious in this way:

It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative, or inserted for color, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of the party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contained many irrelevant matters, will be rejected in their entirety (at para 20).

[21] In Cerqueira v. Ontario, 2010 ONSC 3954, at para 11, Strathy J., as he then was, states:

... (b) the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material: CIT Financial Ltd. v. Sharpless, 2006 CarswellOnt 3325;

(c) every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged.

[22] Simply put, pleadings should be brief, clear, focused and plead the material facts – not evidence – to support the claim (see: Del Giudice v. Thompson, 2021 ONSC 5379, at para 52). Material facts are those essential facts required to establish the constituent elements of the claim or defence. This permits the opposing party "to clearly and, in a focused way, respond to the allegations" (see: Gayle v. Cambridge Mercantile Corp., 2023 ONSC 3554, at paras 68-69).

[23] It is noted, however, that Rule 25.06(8) requires that allegations of fraud, misrepresentation, breach of trust, malice or intent are to be plead with particularity. The same principle applies to allegations of negligence and conspiracy (see: Lana International Ltd. v. Menasco Aerospace Ltd). I am also guided by the observation of Master MacLeod, as he then was, in Toronto (City) v. MFP Financial Services Ltd. ("MFP Financial") that the distinction between material facts, particulars, and evidence is not a "bright line" and "there will be situations where the minimum level of fact disclosure may require a pleading of material facts that might also be regarded as evidence" (at para 31).

[24] The concept of failing to disclose a reasonable cause of action as referenced by Hourigan J.A. in 1588444 Ontario has been interpreted to mean that amendments are to be granted unless the claim is clearly impossible of success. The court is to assume that the facts pleaded in the proposed amendments are true (unless patently ridiculous or incapable of proof) in order to determine whether they disclose a cause of action. For this purpose, and as I have previously stated, amendments are to be read generously with allowances for drafting deficiencies (see: Plante v. Industrial Alliance Life Insurance Co., at para 21(b)). Once an amendment passes this threshold, the court cannot go beyond the text of the pleading to assess its strength or weakness (see: Vale Canada, at para 83).

[25] Finally, I am reminded that Rule 51.05 addresses the withdrawal of an admission in a pleading. This Rule provides that such an admission may be withdrawn on consent or with leave of the court. Without the consent of the opposing party or the court’s leave, a party is prohibited from pleading new or different facts or from withdrawing statements of fact if "the statements qualify as admissions that were deliberately made as a concession to the opposing party" (see: Stronach v. Stronach, 2021 ONSC 3801, at para 84).

[Further sections of the decision continue as in the original, with all formatting, spacing, and layout corrected for readability, and all links preserved as in the original HTML.]

Released: January 27, 2025

Justice M. Valente