Ottawa, Ontario, this 11th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] This is an appeal, brought by way of a motion pursuant to Rule 51(1) of Federal Court Rules, 1998, of the order dated December 24, 2004 of Prothonotary Lafrenière refusing the Plaintiff's motion to amend his Statement of Claim.
[2] By Statement of Claim filed July 9, 2004, Mr. Ross Moore, the Plaintiff, commenced an action against Her Majesty the Queen and three individuals arising out of his employment as an officer of the Royal Canadian Mounted Police (the "RCMP"). In his original Statement of Claim, he claimed that the injuries he suffered began in October 2000 when a civilian employee of the RCMP initiated an unfounded harassment complaint against him. Following this incident, he alleged that the three named individuals took certain steps against him during the period from November 2000 and March 2001. Subsequent to the filing of the claim, by Order of the Court dated September 14, 2004, the action as against the individuals was struck for want of jurisdiction.
[3] The next significant step in this matter was the filing of a motion, on November 17, 2004, for summary judgment by the Defendant. The basis of the motion is that the injuries claimed ceased in March 2001. This would put the injuries beyond the two-year limitation set out in s. 2(1)(e) of the Manitoba Limitation of Actions Act C.C.S.M. c. L150. That motion has not yet been heard.
[4] On November 26, 2004, the Plaintiff filed a Motion seeking leave to amend his Statement of Claim. Specifically, the Plaintiff seeks to add paragraphs that claim that:
12 . . . during the next ensuing period of approximately 14 months, the plaintiff was subjected to continuing actions by the RCMP through its officers, servants and agents, which actions were directly linked to the unfounded harassment complaint initiated by Deschouwer against the plaintiff . . .
13 Further, in or about the month of July, 2002, a formal complaint made by the plaintiff in respect of the continuing actions . . . was dealt with summarily and in a manner that treated the plaintiff and his concerns unreasonably and without any or adequate regard for the plaintiff's rights.
ISSUES
[5] The issues raised by this motion are as follows:
1) What is the standard of review of the decision of the Prothonotary?
2) Was the Prothonotary clearly wrong by failing to allow the amendments to the statement of claim?
ANALYSIS
Issue #1: What is the appropriate standard of review?
[6] In my view, the decision of the Prothonotary, in this case, was not vital to the final determination of the matters at issue. A decision to amend a Statement of Claim is a discretionary one to which a high degree of deference ought to be given. Accordingly, the Prothonotary's Order denying the request may be overturned only if the exercise of his discretion was clearly wrong in that it "was based upon a wrong principle or upon a misapprehension of the facts" (Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.)).
[7] Even if I am wrong and this was a matter vital to the final issues of the case, the result would not change in this appeal. This is because, for the reasons set out in the following, I am persuaded that the Prothonotary applied a wrong principle by relying on an irrelevant consideration and misapprehended the nature of the amendments. Application of a lower standard of deference, as applicable when the question is vital to the final issues in the case, would not change the effect of these errors.
Issue #2: Was the Prothonotary clearly wrong?
[8] The Prothonotary based his decision to dismiss the motion to amend on the following two reasons:
I agree with the Defendant that the Plaintiff is simply attempting to extend the limitation date until two years from his retirement date, thereby undermining the Defendant's position that the Plaintiff's action is statutorily barred pursuant to the Limitations of Actions Act of Manitoba. The Defendant should be entitled to rely on the Statement of Claim and admissions obtained in cross-examination.
In any event, the allegations of misconduct contained in paragraphs 12 and 13 of the proposed pleadings are not simply "addition of particulars" to the Statement of Claim, but rather new causes of actions that go beyond the claims of breach of fiduciary duty or breach of conduct. Further, the allegations are deficient since they are simply bald assertions without material facts on which to base the assertions.
I will deal with each of these conclusions in turn.
1. Extension of limitation date
[9] The Defendant submitted this concern to the Prothonotary who, in turn, accepted it as a reason for denying the motion for amendment.
[10] The sequence of events makes it clear that the amendments were only proposed after the motion for summary judgment was filed. The Plaintiff concedes that the amendments would have the effect of extending the limitation date and that they should have been made sooner. I fail to see, however, why this reason is sufficient to deny an otherwise valid request to amend a statement of claim. In other words, I do not see this as a relevant factor in this case.
[11] The Plaintiff cites Fox Lake Indian Band v. Reid Crowthers & Partners Ltd., [2003]
1 F.C. 197 (F.C.T.D.) a case which provides an excellent survey of the law in this area:
_ Any pleading, including a proposed amendment, must be read in its entire context (para. 8).
_ The Court should take a generous approach to a request for an amendment and take into account Rule 3 so as to secure just, expeditious and inexpensive determinations of the merits in a proceeding (para. 9).
_ So long as there is a cause of action which may not plainly and obviously be struck out as futile, the amendment ought to be allowed, so long as the amendment can be made without prejudice to the other side (para. 10).
_ It is not the Court's role on a motion to amend to edit the proposed amendments and if taken as a whole appear to be reasonable, then the fact that some words or phrases may be susceptible to being struck does not render the amendment as a whole bad (para. 8).
_ An amendment can only be denied in a plain and obvious case where the situation is beyond doubt and deserves emphasis (para. 11).
_ Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done (para. 12).
[12] As noted in Fox Lake, a relevant factor is whether the other side would be prejudiced. The Defendant could argue that its motion for summary judgment is prejudiced. However, an award of costs would adequately compensate the Defendant for the time and trouble of preparing and bringing the motion for summary judgment if it is rendered. Here, there is no prejudice as the Defendant could adequately be compensated for his motion by an award of costs.
[13] Accordingly, the first error of the Prothonotary was in relying on an irrelevant consideration.
2. New causes of action that are merely bald assertions
[14] In assessing whether amendments should be allowed, the question to be answered is will the amendments, when incorporated into the statement of claim, assist in determining the substance of the dispute on its merits, thus enabling the Court to deal with the real question in controversy (Fox Lake, at para. 29)? Bald assertions do not meet this threshold.
[15] While the Court takes a generous approach to allowing amendments to pleadings, even with respect to adding a new cause of action (Donovan v. Canada, [2000] F.C.J. No. 2125 (F.C.T.D.)), there are limits. The Prothonotary concluded that these limits had been reached. Having examined the nature of the proposed amendments, I cannot agree.
[16] In the materials filed in respect of the original motion, the Plaintiff described the proposed amendments as ones that served "mostly to clarify a statement of claim". However, in oral argument on this motion of appeal, the Plaintiff agreed that the amendments constitute a new cause of action against certain unknown members of the RCMP arising from the same unwarranted charge of harassment that occurred in October 2000. The original statement of claim was limited to the actions of three named RCMP members taken in response to the harassment allegation during a four-month period between November 2000 and March 2001. The essence of the proposed amendments is that, during the period extending from April 2001 until his retirement in July 2002, the Plaintiff was subjected to continuing actions by the RCMP, through its officers, servants and agents, "which actions were directly linked to the unfounded harassment complaint . . . initiated against the Plaintiff". The Plaintiff argues, that the fact that he cannot, at this early stage of the claim, name those responsible for the actions should not be a ground upon which to reject the amendments. As the action proceeds, the identities will be revealed and further amendments to the pleadings will be made accordingly.
[17] Contrary to the assertions of the Defendant, these amendments, when read in the entire context of the Statement of Claim, are clearly linked to the unfounded allegation of harassment brought against the Plaintiff. Given this link, which was not recognized by the Prothonotary, I accept that the amendments satisfy the very low threshold for amendments to a statement of claim.
[18] The Plaintiff further argues that the Defendant will not be prejudiced in any way that cannot be dealt with by an award of costs. I agree.
CONCLUSION
[19] As stated by Prothonotary Hargrave in Fox Lake, atpara. 12, "Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done". In this case, that result is achieved by allowing the amendments. This conclusion, of course, does not mean that the Plaintiff will ultimately succeed or that other procedural concerns may apply to the Amended Statement of Claim. However, those are battles for another day. At this stage, the amendments should be allowed.
[20] On the particular facts of this motion, I would exercise my discretion and order that the parties each bear their own costs of this motion in appeal and of the motion below.
ORDER
THIS COURT ORDERS THAT:
1. The motion of the Plaintiff is allowed and the decision of the Prothonotary reversed;
2. The Plaintiff is granted leave to file the proposed amendments to the Statement to Claim; and
3. Each side will bear its own costs of this motion and the motion below.
"Judith A. Snider"
_____________________________
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1283-04
STYLE OF CAUSE: Ross Moore v. Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 7, 2005
REASONS FOR ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Barry L. Gorlick, Q.C. FOR PLAINTIFF
Mr. Duncan Fraser FOR DEFENDANT
SOLICITORS OF RECORD:
Monck Goodwin LLP FOR PLAINTIFF
Barristers & Solicitors
Winnipeg, Manitoba
John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada