Date: 20001227
Docket: T-1944-95
BETWEEN:
BRIAN DONOVAN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] This is an application on behalf of the plaintiff, Brian Donovan (hereinafter the "plaintiff"), on motion pursuant to Rule 369 of the Federal Court Rules, 1998, (hereinafter the "Rules") for an order granting leave to amend once again his statement of claim.
BACKGROUND
[2] The plaintiff was the subject of an investigation by the Special Investigations Branch of Revenue Canada (now the Canada Customs and Revenue Agency). As a result, three search warrants were issued pursuant to section 231.3 of the Income Tax Act, (hereinafter the "Act"), for a search of the plaintiff's business premises, his personal residence and the offices of H.M. Parlee and Company, the plaintiff's chartered accountant.
[3] The searches were conducted on July 17, 1990, when Revenue Canada officials entered the various premises and seized documents. The plaintiff brought an action claiming that the search and seizure was in violation of the Canadian Charter of Rights and Freedoms, (hereinafter the "Charter") based on the Federal Court of Appeal's decision in R. v. Baron [1991] 1 F.C. 712 (hereinafter "Baron").
[4] On December 6, 1991, charges were laid against the plaintiff but all matters were left in abeyance until the question of the legality of the searches and seizures was resolved as leave to appeal to the Supreme Court had been granted on May 16th 1991, in the Baron case.
[5] On January 21, 1993, the Supreme Court of Canada's decision in Baron, [1993] 1 S.C.R. 416, affirmed the Federal Court of Appeal's decision that section 231 of the Act violated the Charter and was of no force and effect. Accordingly in the case at bar, an arrangement was made for Revenue Canada to return the seized documents.
[6] The plaintiff alleges that Revenue Canada purposely returned the documents to the wrong location and simultaneously applied for new warrants which would allow Revenue Canada to seize the documents anew. These warrants were subsequently quashed. The plaintiff then brought the present action against Revenue Canada by way of statement of claim filed on September 15, 1995, seeking pursuant to section 24(1) of the Charter, exemplary and punitive damages for the illegal search and seizure, damages for unlawful trespass, damages for loss of business, reimbursement of all accounting and legal fees and interest and costs.
DISCUSSION
[7] Generally, the Court will allow a party to amend pleadings at any time during the proceedings, in a manner that will protect the rights of all parties. (See Rule 75.) The Rules provide that an amendment may be made, even if it adds a new cause of action, as long as the new cause of action arises out of substantially the same facts as the cause of action for which the amendment is sought. (See Rule 201.)
[8] Furthermore, the case law dealing with applications for leave to amend, indicates that unless there are very clear reasons such as an injustice to the opposing party that cannot be compensated for by an award of costs, the amendment should be allowed. For example, Décary J.A. for the Federal Court of Appeal in Canderel Ltd v. Canada, [1994] 1 F.C. 3, stated:
| ... while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. [Underlining added.] |
[9] In Scottish and York Insurance Co. v. Canada (1999), 239 N.R. 131, Strayer J.A. for the Court of Appeal stated:
| In these circumstances we believe that the learned motions judge should have given much greater weight to the principle that, in the absence of prejudice to an opposing party, an amendment to pleadings should be allowed, if otherwise proper... [Underlining added.] |
[10] Pratte J.A. for the Federal Court of Appeal in Francoeur v Canada, [1992] 2 F.C. 333, also stated that:
| ... Under Rules 420(1), 424 and 427, an amendment adding a new cause of action after the expiry of a period of limitation must nevertheless be allowed "if it seems just to do so" and "if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." |
[11] This Court will allow amendments to a statement of claim unless the proposed amendments will create a prejudice to the opposing party that can not be alleviated by the award of costs. This attitude is clearly motivated by the desire to ensure that the real questions in controversy between the parties, are resolved.
[12] In this case, the proposed amendments consist mainly of background information that will put the original claims in context. These amendments arise out of substantially the same basic facts. It is important to note that the information the plaintiff wishes to add to the amended statement of claim came to light during examinations for discovery and therefore, is not information to which he was privy and simply failed to include in the original statement of claim. These proposed amendments will in my view assist the trier of fact in his or her appreciation of the issues.
[13] The proposed amendment introducing the claim for general damages does not, in my view constitute a new cause of action. The claim for general damages constitutes an altered claim for relief as Martin J. stated in Jelin Investments Ltd. v. Signteck Inc. (1991), 44 F.T.R. 39:
| ... It is correct to say that under Rule 424 a new cause of action may be added by way of amendment to the Statement of Claim notwithstanding the expiration of the limitation period which applies to that cause of action but I fail to see that the amendments allowed by the Associate Senior Prothonotary gave rise to new causes of action. The Associate Prothonotary clearly considered that the causes of action had already been pleaded i.e. the facts upon which relief could be claimed. To claim damages and profits as opposed to damages or profits does not, in my view, amount to a new cause of action but only to an altered claim for relief. |
| Similarly to claim punitive damages in addition to damages is only a claim for an increased degree of relief which, as the Associate Senior Prothonotary found, could have been anticipated by the allegation of facts contained in the original Statement of Claim and does not, in my view, give rise to a new cause of action. [Underlining added.] |
[14] With respect to the defendant's argument that the proposed amendments do not comply with the Rules, this can be remedied by directing the plaintiff to comply with them.
[15] The defendant contends that oral arguments are warranted before deciding this motion. Dawson J. in Behnke v. Canada (Department of External Affairs), [2000] F.C.J. No. 1166, reviews the instances where oral arguments will be permitted:
| In Sterritt v. Canada (1995), 98 F.T.R. 68, affirmed (1995), 98 F.T.R. 72 (F.C.T.D.), Prothonotary Hargrave of the Court canvassed case law which has considered when the Court will agree to a request made by a Respondent for an oral hearing. The instances which were canvassed include circumstances where the matter is complex; where the issues raise questions of public interest that are novel so that oral argument would be of great assistance to the Court; where an assessment of the credibility of witnesses and full legal arguments is required; where there is substantial reason for concluding that the applicant cannot adequately present his application in writing; where the matter is urgent and can be disposed of more expeditiously if an oral hearing were directed; and where many people are interested in the matter that an oral hearing would avoid an otherwise cumbersome procedure. |
[16] Here, the defendant has failed to satisfy me that this matter cannot be adequately dealt with in writing. The arguments that the defendant relies on to justify an oral hearing, are simply not sufficient.
CONCLUSION
[17] In my view, the proposed amendments will serve mostly to clarify the statement of claim as originally filed and will not result in an injustice to the defendant.
[18] For these reasons, leave is granted to the plaintiff to serve and file a further amendment to his statement of claim within 30 days from the date of this order. Should additional discoveries be required as a result of the amendment, costs shall be to the
defendant in any event of the cause. Costs of the motion are in the cause. The proposed amendment must comply with the Rules.
"François Lemieux"
Judge
OTTAWA, ONTARIO
December 27, 2000
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