Lawrence v. The Queen, docket T-1714-94

     T-1714-94

Between:

     ANDREA LAWRENCE,

     Plaintiff,

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF THE CANADA IN THE

     NAME OF THE ROYAL CANADIAN

     MOUNTED POLICE,

     Defendant.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     These reasons arise out of a motion heard November 4, 1996, to substantially amend the Defence. At the conclusion of the hearing I denied the amendments and indicated reasons would follow. The reasons are brief for the action is scheduled for trial beginning November 12, 1996.

BACKGROUND

     This action, in which the Plaintiff, who is a constable in the Royal Canadian Mounted Police, seeks damages as a result of an October 1992 riding accident during training, was begun July 15, 1994. The Defence was filed September 2, 1994. In August of 1995 the Defendant's nominee was examined for discovery. Examinations for discovery focused on the accident. On January 9, 1996, counsel for the parties signed and filed an agreed statement pursuant to Rule 485, to which I will return.

     The minutes of the pre-trial conference, which took place March 8, 1996, two months after the Rule 485 statement had been agreed upon and filed, set out that the parties proposed to deal with issues of liability at the trial. The parties, together, intended to call three or four witnesses. There was to be a joint book of documents. The parties were to settle agreed facts, either by written statement or orally by counsel at the beginning of trial, and Mr. Justice MacKay directed the Registry to file the Rule 485 letter, with a copy of it to be appended to the certified record. The proceedings seemed to be shaping up to lead to a neatly-packaged four-day trial.

The trial in this action was initially set to begin September 17, 1996. However, in June of 1996, the Defendant obtained an adjournment, to which the Plaintiff consented. The trial was thus adjourned to November 12, 1996, four days again being set aside for the hearing.

I now return to the Rule 485 statement, which contains the usual advice that the parties are ready for trial. It also includes an agreement pursuant to Rule 485(1)(a) as follows:

The parties agree that the issues for trial are those which are defined in the pleadings, save and except for the additional claim of the plaintiff set out as follows;

In addition or in the alternative, the Plaintiff pleads the providisions [sic] of the Occupier's Liability Act, R.S.O., 1980, c.322, in that the Defendant was an occupier of the subject facilities, had a duty to ensure that the riding conditions were safe for the conduct of the Course, and breached said duty, thereby causing or contributing to the subject accident and damages suffered herein.

The Defendant took no exception to the addition. Indeed, the Defendant agreed to the additional plea. By Rule 485(2) the agreed statement supplements the pleadings to the extent that it extends the pleadings.

AMENDMENTS SOUGHT

     In the Defence as filed, the Defendant pleaded the Crown Liability Act, R.S.C. 1985, c.C-50, as amended. The name of the Act was changed, in 1990, to the Crown Liability and Proceedings Act. It is clear to which legislation the Defendant refers. Given that I have denied the balance of the amendments, there is no point in cluttering up the file with an Amended Defence containing one purely housekeeping amendment, particularly in that the Defendant refers to the Crown Liability Act "as amended".

     The Crown seeks to add two new paragraphs to the Defence as follows:

7.      In answer to the Plaintiff's claim made pursuant to the Occupier's Liability Act, R.S.O. 1980, c.322, which claim is contained in the Rule 485 Statement dated January 8, 1996, the Defendant says that the Plaintiff's claim under the Occupier's Liability Act, supra, is barred by section 45 of the Limitations Act, R.S.O., c. L.15 and, in addition to or in the alternative, the Plaintiff's claim is barred by section 3 of the Limitation Act, R.S.B.C. 1979, c. 236.

8.      In answer to the whole of the Statement of Claim, the Defendant says that the Plaintiff's claim is barred by the provisions of section 111 of the Pension Act, R.S.C. 1985, C. P-6 [sic], and the provisions of the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1970, C. R-11 [sic].

     Counsel for the Plaintiff initially intended that the Occupier's Liability plea be by way of an amendment to the Statement of Claim. However, he subsequently proposed the Occupier's Liability plea be by way of the Rule 485 statement. Counsel for the Defendant, in her affidavit in support of this motion, says she intended to file an Amended Defence in response to the Occupier's Liability plea, but not having received an Amended Statement of Claim and apparently not having read Rule 485 of the Federal Court Rules, took no further steps.

ANALYSIS

     There are two main issues. First, whether the amendments intended to appear as paragraphs 7 and 8 ought to be granted, for the Plaintiff says they would be prejudicial, particularly at this late date and not compensable in costs. Second, if this decision goes to appeal and it is found that I generally ought to have granted the amendments, the Defendant is nonetheless particularly unable to plead in response to the Occupier's Liability claim in the Rule 485 statement that the plea is time barred. This is because the agreed addition to the Statement of Claim, the Rule 485 statement, forms part of the pleadings, as an amendment, and thus speaks from the time the Statement of Claim was issued: the Statement of Claim was issued within the relevant limitation period.

Some General Principles

     Turning first to the amendment as a whole, I must abide by certain general principles.

     Amendments should be allowed at any stage in a proceeding, in order to determine the real question and controversy, or where it would serve the interests of justice, with some exceptions: most notably an amendment will be refused if it may cause injury or injustice to the other side of a type or magnitude which cannot be compensated for by an award of costs (see for example Her Majesty the Queen v. Canderel Limited, [1994] 1 F.C. 3 at 10 (F.C.A.) and Leesona Corp. v. United Throwsters Ltd. (1978), 37 C.P.R. (2d) 210 at 212, approved by the Federal Court of Appeal in Her Majesty the Queen v. Mandel, an unreported decision of February 26, 1996, in Action A-528-94).

     In addition, it is not for me to anticipate whether the amendments might be successful at trial. Indeed, I should assume the facts in the proposed amendment might be proven. If the amendments also constitute a reasonable cause of action I should then go on to determine whether by reason of prejudice, or by any other reason, the amendments ought not to be granted: see for example the reasons of Madame Justice McLauglin, as she then was, in McNaughton v. Baker, [1988] 4 W.W.R. 742 at 752 (BCAA) and Gleason Works v. Excalibar Tool Inc. (1966), 66 C.P.R. (3d) 139 at 140 (F.C.T.D.).

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APPLICATION OF VARIOUS PRINCIPLES

     There are several reasons why the amendment as a whole ought not to be allowed. Leaving aside that a last minute amendment, perhaps indicative of the Defendant not putting her mind to the case despite obtaining an adjournment of the trial, makes a mockery of the whole pre-trial process, the principle reason is that of prejudice to the Plaintiff. At such a late date, there can be no effective preparation for trial and thus the Plaintiff cannot be compensated for the surprise and injustice which would result if the amendment were allowed.

     More specifically, counsel for the Plaintiff indicated that he would require further discovery and this is understandable, for there is no dispute that the principle thrust of the discoveries held so far have been as to liability and not as to a number of other factors, including the Plaintiff's injury and disability and the particulars of the facts and the evidence that will have to go to flesh out the bare assertions contained in the amendments. This lack of discovery is not compensable by an award of costs.

     The amendments would also seem not to comply with Rule 409:

409.      A party shall plead specifically any matter (e.g. performance, release, a statute of limitation, prescription, fraud or any fact showing illegality)

(a)      that he alleges makes a claim or defence of the opposite party not maintainable;

(b)      that, if not specifically pleaded, might take the opposite party by surprise; or

(c)      that raises issues of fact not arising out of the preceding pleading.

Mr. Justice Collier touched on this problem in Sandvik v. Windsor Machine Ltd. (1986), 2 F.T.R. 81 at 87, where the issue was the propriety of a limitation plea which merely incorporated section 38(1) of the Federal Court Act, which in turn incorporated relevant provincial limitations. In the present instance, the Defendant proposes to specifically incorporate provisions of the Ontario and British Columbia Limitation Acts and also limiting provisions, specified and unspecified, in the Federal Pension Act and in the Royal Canadian Mounted Police Superannuation Act. Mr. Justice Collier, in the Sandvik case, pointed out that to bring into play a limitation or prescription, it is proper to set out the material facts giving rise to the invocation of the prescription periods relied upon. Such has not been done in the present instance. This is yet another reason why the amendment is improper.

     An amendment ought not to be granted if it will complicate or lengthen a proceeding unduly: Cardinal v. Canada (1992), 47 F.T.R. 203 at 219. The amendments proposed are not as straightforward as they would seem. For example, both section 111 of the Pension Act and Part II of the Royal Canadian Mounted Police Superannuation Act deal with pensions for disability. However, the definitions of disability in the two Acts are very different. The Plaintiff and indeed both parties might well have to call expert evidence as to the Plaintiff's capability or lack thereof. Even assuming the time requirements for experts' reports were waived, it would not only be impractical to try to organize expert evidence, as to the Plaintiff's abilities or inabilities going to disability, but also it would substantially lengthen and complicate what is presently, as I have said, a fairly neat four-day trial package dealing solely with liability.

     Associate Chief Justice Jerome, in the Cardinal decision [supra] also pointed out, at p. 219, that amendments must be relevant. Section 111 of the Pension Act, one of the amendments upon which the Defendant would like to rely, is a bar to proceedings against the Crown in the case of an injury resulting in disability ". . . where a pension is or may be awarded under this Act or any other Act in respect of a disability . . . ". The Defendant obviously relies on the reference to "any other Act" as referring to the Royal Canadian Mounted Police Superannuation Act, which provides for pensions. However, the pleadings show Corporal Lawrence to have been with the Royal Canadian Mounted Police, to date, only eight years: Section 11(2) of the Royal Canadian Mounted Police Superannuation Act makes it clear that to be entitled to a pension a member of the force must have ten or more years pensionable service. Thus the amendment is irrelevant, would serve no useful purpose and ought not to allowed.

     Still dealing with the requirement that an amendment must be relevant. In Tremblay v. The Queen in Right of Canada (1977), 70 D.L.R. (3rd) 250 the majority of the Federal Court of Appeal pointed out that the phrase "is or may be awarded a pension", in section 88 of the Pension Act, which now is section 111 of the Pension Act, contemplated that the facts upon which the pension might be awarded in the future must exist at the time the bar is invoked: the words do not contemplate a possible future pension based on a subsequently arising state of facts.

     Counsel for the Plaintiff referred Madame Justice Simpson's distinguishment of the Tremblay case in her unreported 14 December 1995 reasons in Leach v. Her Majesty the Queen, action T-986-93. Madame Justice Simpson points out that in the Tremblay case, where no application for a pension had been made, no facts existed which might vest in the pension commission a jurisdiction to award a pension. That is also the Plaintiff's situation in the present instance, for not having ten years service in the R.C.M.P. she is not eligible for a pension.

     It also seems to me far too speculative, in the present instance, to say that a future pension might be awarded on the basis of the Plaintiff's present state of health. On this line of reasoning the amendment is not relevant and ought not to allowed. However, if I am wrong on this assessment, there is also the fact that to properly consider the nature of the Plaintiff's disability and whether a pension might be awarded, there ought to have been exploration, on discovery, of more than just liability and, as I have also pointed out, there ought to be expert medical evidence, which has not been arranged.

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Rule 485 and the Limitation Plea

     It is useful at this point to set out a portion of Rule 485:

485. (1) Before making an application for an order fixing a date and place for trial or setting a case down for trial at a General Sittings, a party shall,

(a) unless the pleadings sufficiently define the issues of fact in dispute between the parties as of that time, file an agreement of all parties stating such issues;...

(2) An agreement filed under paragraph (1)(a) replaces or supplements the pleadings to the extent that it is inconsistent with them or extends them.

     It is clear from Rule 485(2) that the agreement filed under Rule 485(1)(a) by counsel for both parties supplements the pleadings, just as would an amendment. There is no requirement in Rule 485 that the statement or agreement filed must then be embodied in an amended pleading. In any event the statement, concerning the Occupier's Liability Act, is a part of the pleadings. There are no reservations on the part of the Defendant.

     It is trite to say an amendment speaks from the date of the original document. This rule is likely the reason or a reason a plaintiff cannot amend to add a statute-barred cause of action without either review by the Court under Rule 422, or by leave of the Court as allowed by Rule 424.

     Counsel for the Defendant, by agreeing to the amendment, by way of the Rule 485 statement, without reservation, ought not to be allowed to challenge the plea by bringing up a statute of limitation plea any more than could the Defendant have challenged the Occupier's Liability plea had it been an amendment allowed not be consent, but by Court Order with the amendment speaking from the date of the filing of the Statement of Claim, when the plea would not have been time-barred.

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CONCLUSION

The apparent last minute attention of the Crown to the pleadings places the Plaintiff in a predicament such that were the amendments allowed injury and injustice not only might, but in all likelihood would result. Thus I can see no reason for allowing the amendments. Costs will be in the cause.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

November 6, 1996

Vancouver, British Columbia