Colenutt v Colenutt, 2023 ABKB 562

Court of King’s Bench of Alberta Citation: Colenutt v Colenutt, 2023 ABKB 562 Date: 20231010 Docket: 4803 176550; 1803 13633 Registry: Edmonton Between: Shelley Colleen Colenutt Applicant - and - Christopher Lee Colenutt Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice D.A. Yungwirth _______________________________________________________ Introduction [ 1 ] This case is about amending pleadings to add claims arising from allegations of family violence.

At the time the application was filed, a new tort, the tort of family violence, had been recognized by the Ontario Superior Court of Justice in the case of Ahluwalia v Ahluwalia , 2022 ONSC 1303 . [ 2 ] At the time this application was heard, the Ahluwalia decision was on appeal to the Ontario Court of Appeal. Counsel agreed that it would be appropriate for this Court to wait until the Ontario Court of Appeal decision was released before completing this decision. [ 3 ] On July 7, 2023, the Ontario Court of Appeal released its decision in Ahluwalia v Ahluwalia , 2023 ONCA 476 .

The Ontario Court of Appeal found that it was not necessary for the Court to create a novel tort specific to family violence or to the proposed tort of coercive control.

[4] The Ontario Court of Appeal pointed out that the Divorce Act, RSC, 1985, c.3 (2nd Supp) does not include a remedy for aperson who has been subjected to family violence. The Court also concluded that s 2 of the Divorce Act, which defines family violence,is intended to have a very specific application. (Ahluwalia, paras 94-100) [5] The Court pointed out that the use of the Divorce Act definition of family violence is to be considered only in connectionwith parenting orders in s 16(3)(

j) when the Court assesses the best interests of children, and in s 16(4) when the Court is to consider theimpact of family violence on children.

The Court stated at para 94, that “[t]he trial judge adopted a definition of family violence meantfor post-separation parenting plans and used it to fashion the new tort.” [6] Importantly, the Court rejected the argument that the Supreme Court of Canada decision in Frame v Smith, (SCC), [1987] 2 SCR 99, supports the proposition that certain torts, including intentional infliction of mental distress, cannot apply in thefamily law context. (Ahluwalia, paras 39-46) [7] In response to the Trial Judge’s reasoning that the focus in the existing torts of assault and intentional infliction of emotionaldistress is on individual instances rather than on a pattern of behaviour, the Ontario Court of Appeal concluded at para 74, that “Courtshave long recognized that patterns of physical and emotional abuse constitute tortious behaviour.

Contrary to the Trial Judge’sconclusion, courts have considered the patterns of behaviour that constitute intimate partner violence without limiting their focus toindividual incidents.” Several cases (most from Ontario) were reviewed to support this conclusion. [8] The Ontario Court of Appeal stated at paras 99-100: [99] I agree with the trial judge that the relatively recent addition of family violence considerations reflects Parliament’s awareness ofand concern about the devastating effects of family violence on children. [100] I do not agree with the trial judge that these sections “formed the starting point” for creating a new tort between the spouses.

Tothe contrary, the legislature must be taken to have intentionally introduced this concept only in the context of parenting. [9] Starting at para 103, the Court also considered the proposed tort of “coercive control”. In refusing to recognize the tort ofcoercive control, the Court concluded that the existing tort of intentional infliction of emotional distress provided an adequate remedy. [10] The conclusions of the Ontario Court of Appeal on the issue of the need for a new tort of family violence were summarized inparas 91 and 92 of Ahluwalia: [91] In

summary the trial judge’s concern that “long-term, harmful patterns of conduct that are designed to control or terrorize” arenot captured by existing torts is misplaced. She found that the appellant had subjected the respondent to years of physical, psychological,emotional and financial abuse constituting behaviour calculated to be coercive and controlling. These facts fall squarely within theexisting jurisprudence on battery, assault and intentional infliction of emotional distress. The jurisprudence cited above demonstratethat patterns of recurring behaviour are addressed. [92] ...

The existing torts are flexible enough to address the fact that abuse has many forms. Recurring and ongoing abuse,intimidation, domination and financial abuse exist can be patterned into daily life. Trial judges should be alive to these dynamics. Thetrial judge here recognized the ability of existing torts to address the harm when she found that liability under the existing torts had infact been established. [11] In

summary, I find that it is appropriate to apply the Ontario Court of Appeal decision in Ahluwalia, for family law litigants inAlberta who wish to advance a claim for damages arising from family violence, including coercive control. They may proceed based onthe current tort laws related to assault, battery, and intentional infliction of emotional distress. This type of action cannot be commencedunder the Divorce Act, under the Family Law Act, SA 2003, c F-4.5, or under the Family Property Act, RSA 2000, c F-4.7. It is a separatecause of action requiring a separate action to be commenced.

As in this case, an application can be made to consolidate actions or havethem tried together, and those applications will be decided on their merits. If the family/property actions are tried with the tort action,then the family/property claims should be determined first, with the claims in the tort action being considered second (Ahluwalia, para136). [12] Against that backdrop, I turn to the current application. Ms. Colenutt seeks an order for the following: 1. Permitting her to amend her Statement of Claim in Action 1803 13633 to add the tort of family violence; 2.

Permitting her to serve the Amended Statement of Claim on Mr. Colenutt by email; 3. Combining Court Actions 1803 13633 and 4803 176550; and 4. Costs of the Application, payable forthwith. Background Facts [13] The parties began cohabiting in 1989, and were married on November 2, 1994. The date of separation is in dispute, with Ms.Colenutt maintaining that the parties separated in June of 2016 and Mr. Colenutt maintaining that the parties separated in December of2013. When they began cohabiting, Ms. Colenutt had 2 children from a previous marriage. The parties have one child together.

All of thechildren are now adults and no longer dependent on the parties. The Divorce and Property Action 4803 176550

[ 14 ] Mr. Colenutt commenced an action for divorce and division of matrimonial property on June 23, 2016. Ms. Colenutt filed a Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property on September 7, 2016. The court record indicates that there was a spousal support application heard in the Fall of 2018 and a Notice to Disclose Application in June of 2019. Counsel advised the Court that questioning on affidavits occurred in January/February of 2018 and that questioning for discovery of one of the parties occurred on June 3, 2019.

The Assault and Battery Action 1803 13633 [ 15 ] On July 10, 2018, Ms. Colenutt commenced an action for assault and battery in relation to an assault that is alleged to have occurred on July 10, 2016. Mr. Colenutt filed a Statement of Defence and Counterclaim in that Action on May 16, 2019. He alleged that it was Ms. Colenutt who assaulted him on July 10, 2016. It appears from the Court file that a Notice to Admit Facts and a Reply to Notice to Admit Facts were filed in September of 2022. [ 16 ] On August 29, 2022, this matter was heard in Family Docket Court, as Ms.

Colenutt’s request for relief was filed in both the divorce and civil actions. The matter was directed to a half-day special chambers application, which was heard on March 29, 2023. In addition to the submissions provided by Counsel on March 29, 2023, Counsel were given an opportunity, after the release of the Ontario Court of Appeal decision in Ahluwalia , to make further submissions. The Applicant did not provide anything further. The Respondent provided further written submissions on September 11, 2023. Issues for Determination Issue 1: Should the Court permit Ms.

Colenutt to amend the Statement of Claim for assault to add the tort of family violence? [ 17 ] The amendments sought by Ms. Colenutt consist primarily of the addition of 34 paragraphs that set out the alleged incidents upon which she is relying to support her claim that Mr. Colenutt engaged in behavior that included grooming, coercion, manipulation, humiliation, degradation, sexual assault, harm to animals, and assault and battery.

She also wishes to add to the list of injuries in para 39, “complex post-traumatic stress disorder”. [ 18 ] This Court accepts and applies the decision of the Ontario Court of Appeal in Ahluwalia and concludes that there is no separate tort of family violence. Rather, any claims made would be under the current tort laws related to assault, battery, and intentional infliction of emotional distress. [ 19 ] The original Statement of Claim in Action 1803 13633 was focussed on a specific incident that occurred on July 10, 2016.

The Statement of Claim refers to “assault and battery” against the Plaintiff by the Defendant on that day. The amendments proposed by the Plaintiff are in support of a claim for damages related to a pattern of recurring behavior.

Though the nature of the exact tort is not specifically identified in the proposed amendments, with the benefit of the clarifications provided by Ahluwalia , it does appear that the proposed amendments would support a claim for assault (in relation to the sexual assault claims) and intentional infliction of emotional distress. [ 20 ] Accordingly, the main issue in this case, is whether Ms.

Colenutt should be permitted to amend her Statement of Claim in the assault and battery action by adding a claim for intentional infliction of emotional distress, claims for sexual assault, and by expanding the list of injuries suffered as a result of those claims. [ 21 ] Mr. Colenutt argues that Ms. Colenutt’s Application is specific in that she is seeking to amend her pleadings to include the tort of family violence and no other tort. He also submits that the proposed pleadings do not properly particularize any alleged tortious incidents.

I reject this argument, as the specific amendments sought encompass allegations of sexual assault. Legal Principles Applicable to Amending Pleadings [ 22 ] In Astolfi v Stone Creek Resorts Inc , 2023 ABKB 416 ( Astolfi ), paras 39-42 , Marion J recently provided an excellent

summary of the general principles applicable to amending pleadings with leave of the Court. [ 23 ] He summarized the current state of the law based on Alberta Court of Appeal authorities, which conclude that: 1. there is a strong presumption in favor of allowing amendments to pleadings after the close of pleadings, and 2. Courts should exercise their discretion to allow the amendment unless the non-moving party demonstrates an exception or compelling reason not to. [ 24 ] Marion J goes on to summarize the types of compelling reasons or exceptions that have been recognized over time.

Five of those are the focus of counsels’ arguments in this case: 1. The amendment would cause serious prejudice to the opposing party, not compensable in costs; 2. The amendment requested is “hopeless” (an amendment that, if it were in the original pleadings, would have been struck); 3. The proposed amendment is not supported by a required threshold level of evidence, based on the nature of the proposed amendment;

4. Unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period; and 5. There is an element of bad faith associated with the failure to plead the amendment in the first instance. [ 25 ] I will address each of these in turn. Would the amendments cause serious prejudice to the opposing party, not compensable in costs? [ 26 ] Ms. Colenutt argues that the proposed amendments do not prejudice Mr. Colenutt’s ability to defend himself at trial. She argues that any concerns related to the passage of time affect both parties equally. [ 27 ] Mr.

Colenutt argues that the allegations being made relate to specific incidents, some of which occurred 35 years ago. He argues that it will be difficult for him to respond to such dated allegations. He also raises the possibility of dismissal of the civil action for long delay. He argues that the significant additional steps that will have to be taken are contrary to the purpose and intention of the Alberta Rules of Court , Alta Reg 124/2010 . Finally, Mr.

Colenutt argues that allowing the amendments would be inherently unfair to him because he has already been defending both the divorce action and the civil action for many years, and had the claims been made at the outset, it would have affected settlement discussions and litigation strategies.

Applicable Legal Principles [ 28 ] The non-moving party has the onus to establish serious prejudice that cannot be adequately abridged by an ameliorative costs order or any other order. ( Astolfi at paras 98-99 ) [ 29 ] The case of Sorrell v eQube , 2019 ABQB 31 , provides an example of the kind of prejudice that cannot be adequately addressed by a costs order or other order. The amendments were not allowed because the plaintiff applied to amend their pleadings on the last day of a five-day trial after it took 6 years to get the matter to trial.

In Sorrell , the Court found that allowing the amendments so late in the process would prejudice the defendant beyond what could be sufficiently addressed in costs. Analysis [ 30 ] In this case, both actions in are still in the discovery phase of the proceedings. No questioning has occurred in the civil action and only partial questioning has been completed in the divorce and property action.

Neither party appears to have been diligent in taking the required steps necessary to move either action toward conclusion. [ 31 ] The possible availability of a tort of family violence was only recently addressed by a superior court in Canada. This is when Ms. Colenutt attempted to amend her pleadings. [ 32 ] There is no evidence of anything other than fading memories to allow the Court to conclude that the passage of time alone should create an inference of prejudice. If the amendments are permitted, both parties can prepare for questioning and trial with knowledge of the allegations being made. [ 33 ] Mr.

Colenutt has not established that there will be serious prejudice, not compensable in costs if the amendments are permitted. [ 34 ] I conclude that any prejudice associated with additional steps required as a result of any amendments to the Statement of Claim in Action 1803 13833 can be compensated with costs. Therefore, the proposed amendments should not be rejected on this basis. Are the proposed amendments hopeless? [ 35 ] Ms. Colenutt argues that the proposed amendments would not have been struck in the original pleadings.

She submits that she is not seeking to add a new party or a new cause of action after a limitation period. She says that there is no bad faith on her part, as the tort of family violence was not available to her until the trial decision in Ahluwalia . [ 36 ] Mr. Colenutt argues that the amendments would have been struck if pled in the first instance. He argues that except for the paragraphs alleging sexual assault, the proposed amendments disclose no cause of action. He argues that the allegations are improper, frivolous and that they fall far below the pattern of coercion and abuse found in Ahluwalia .

He submits that the tort of family violence is not recognized in Alberta. Applicable Legal Principles [ 37 ] The principles on hopeless amendments to pleadings are summarized in paras 45-49 of Astolfi . [ 38 ] Briefly, the amendments must adequately plead a cause of action or provide further particulars on existing claims or seek additional remedies or plead new legal conclusions arising from a cause of action or claim that is already in the original pleadings.

Where the grounds to challenge an amendment are based on the failure to disclose a cause of action, a claim will only be struck if it is plain and obvious, assuming the facts pled to be true, that the proposed amendments disclose no reasonable cause of action. The amendments must be considered not in isolation, but in the context of the pleadings to which they are proposed to be added.

The proposed amendments must be interpreted liberally and generously, not restrictively. [ 39 ] The Alberta Court of Appeal also described hopeless amendments at para 27 of Attila Dogan Construction and Installation Co Inc v AMEC Americas Limited , 2014 ABCA 74 :

[27] Several things might make a proposed amendment "hopeless". That category would include amendments that do not disclose acause of action. There may be other circumstances where the proposed amendment is so inconsistent with the record that it could fairlybe described as "hopeless".

Analysis [40] The proposed amendments related to allegations of sexual assault disclose a cause of action. [41] Even if the tort of family violence does not exist in Alberta, the other proposed amendments allege a pattern of behavior thatmay be sufficient to support a claim for the tort of intentional infliction of emotional distress. [42] Before moving on, it is necessary to consider whether the proposed amendments are supported by the required threshold levelof evidence. Are the proposed amendments supported by a required threshold level of evidence, based on the nature ofthe proposed amendments? [43] Ms.

Colenutt argues that the evidentiary threshold is not applicable in this case because the proposed amendments do notrelate to new evidence that has arisen, but rather to the fact that following Ahluwalia, a new tort of family violence has been recognized.Due to the conclusions of the Ontario Court of Appeal, this argument cannot be sustained. [44] Mr. Colenutt argues that Ms. Colenutt’s Affidavit of November 23, 2022, does not contain any evidence of the events detailedin the proposed amendments. He submits that Ms. Colenutt has not sworn to the events alleged in the proposed amendments.

Applicable Legal Principles [45] In Astolfi, Marion J discussed the requisite amount of evidence for amending pleadings at paras 60-61. 60 An amendment that is not supported by sufficient evidence to meet the evidentiary threshold can be considered hopeless: AttilaDogan at para 27; Kichton Contracting Ltd v Giselbrecht, 2022 ABQB 476 at para 15; Ingram v Alberta (Chief Medical Officer ofHealth), 2022 ABQB 164 at para 35; Brewin at para 32. 61 The evidence threshold for amending pleadings after the close of pleadings depends on the nature or classification of the proposedamendment: Balm at para 25; Hartum (Estate of) v Loewen, 2007 ABCA 15 at para 12; Tiger Calcium at para 38.

For example: (

a) many amendments require no or minimal evidence. This includes amendments that are trivial, inconsequential, ancillary or merelyclarifying wording: Waquan v Canada, 2002 ABCA 110 at para 26; Balm at para 10; Bard at para 12. It also includes amendments thatadd new causes of action based on the facts already pleaded: Balm at para 11; Tiger Calcium at para 39; (

b) most other significant amendments require only modest evidence and have a low evidentiary threshold: Balm at paras 25, 29; AttilaDogan at paras 24-26; Remington at para 33. The type of "evidence" can be any admissible evidence, but may also include hearsay (seeBalm at para 25, citing Marathon Construction (Alberta) Ltd v Bank of Nova Scotia, (SKCA); Green v Redlick,2023 ABKB 19 at para 10) and possibly even opposing party pleadings: Balm at para 31. But it must have some foundation in fact:Attila at paras 24-26; Bard at para 12; (

c) some amendments have a significantly elevated evidentiary threshold. Amendments that add new causes of action based on fraud,high-handedness, or malicious conduct require "significant evidence" establishing a "good ground" or "exceptional circumstances":Canadian Natural Resources Limited v Arcelormittal Tubular Products Roman SA, 2013 ABCA 87 at para 11; Waquan at para 61;Balm at para 63; Tiger Calcium at para 41; Condominium Corporation No. 00311443 v Goertz, 2022 ABQB 104 at para 29; EvanoffEnterprises Ltd v Pioneer Hi-Bred Limited, 2009 ABQB 223 at para 49.

A similar elevated evidentiary threshold applies to newallegations of bad faith: Bard at paras 33, 36. However, the elevated threshold does not apply where the amendments add particulars foran existing cause of action: Tiger Calcium at para 42; Bard at para 36. Analysis [46] The issue here is whether Ms. Colenutt’s Affidavit contains enough evidence to support the proposed amendments. [47] Paragraph 10 of Ms. Colenutt’s November 3, 2022 Affidavit states: 10.

Attached as Exhibit A is a proposed Amended Statement of Claim that includes the history of family violence that I experiencedduring the marriage, the coercion, manipulation, sexual assault, harm to animals, and the assault and battery. (emphasis added) [48] This evidence, under oath, essentially states that the particulars detailed in the proposed amendments are what sheexperienced during the marriage. [49] The threshold for evidence to support amendments to pleadings is low. [50] Applying the legal principles to the facts in this case, I would not disallow the amendments on the basis that the evidentiarythreshold has not been met.

I would also not disallow the amendments on the basis that they are hopeless. Do the proposed amendments seek to add a new party or a new cause of action after the expiry of alimitation period?

Applicable Legal Principles [51] Sections 3, 3.1, and 6 of the Limitations Act, RSA 2000, cL-12 provide a framework for what must be considered in this case. [52] Section 3(1) of the Limitations Act states: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1, 3.2 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. [53] The limitation period runs from the discoverability of the injury, not discoverability of the cause of action for any injury: SunGro Horticulture Canada Ltd v Abe’s Door Service Ltd, 2006 ABCA 243 at paras 10-11 [Sun Gro]; Gayton v Lacasse, 2010 ABCA123 at paras 18-19.

Put another way, a cause of action arises for the purposes of a limitation period when the material facts on which it isbased have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence: Central & EasternTrust Co v Rafuse, (SCC), [1986] 2 SCR 147 at 224. Therefore, the limitation period may commence at different timesfor different injuries: Sun Gro, ibid.

The discoverability principle does not require the claimant to have “perfect knowledge” or certaintythat the claim will succeed: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 at para 58 [Weir-Jones]. [54]

Section 1(e)(

i) of the Limitations Act provides that “injury” includes personal injury. Analysis [55] Ms. Colenutt’s allegations can properly be described as allegations of personal injuries, including physical and emotionalinjuries. It is clear that Ms. Colenutt knew that she had suffered personal injuries and that these injuries were attributable to the conductof Mr. Colenutt. The issue arises under s 3(1)(a)(iii), namely whether Ms.

Colenutt knew or ought to have known that the injuries“warranted bringing a proceeding”. [56] Courts in Alberta have adopted the guidance from the Supreme Court of Canada in Novak v Bona, (SCC),[1999] 1 SCR 808 [Novak], as to when an injury would warrant bringing a proceeding: HOOPP Realty Inc v Emery Jamieson LLP,2020 ABCA 159 at para 56, leave to appeal to SCC refused, (SCC). The Court does not look at the legal strength ofthe plaintiff’s case for recovery, but rather to the circumstances of the plaintiff: HOOPP, ibid.

Time begins to run when, “in light of theplaintiff’s particular situation, the bringing of a suit is reasonably possible, not when it would be ideal from the plaintiff’s perspective todo so [emphasis original]”: Novak at para 84. [57] Subsequent cases in Alberta have deemed the above inquiry to be a cost-benefit analysis of sorts, “embranc[ing] aconsideration of the extent of the injury in comparison to the economics of a prospective action”: Condominium Plan 9421549 v MainStreet Developments Ltd., (AB KB), 365 AR 162, at paras 63, 69, 72; see also Gouthro v Kubicki, 2020 ABQB 46.The cases note that a claimant’s interests and circumstances must be serious, significant and compelling; non-pressing, tactical, trivial orunreasonable circumstances and interests will not postpone the running of the limitation period: Novak at para 93; HOOPP at para 59. [58] Further and more importantly, these authorities confirm that the analysis under s 3(1)(a)(iii) of the Limitations Act does notconsider whether there existed a cause of action to warrant bringing a proceeding.

This is in line with the general concept thatdiscoverability relates to facts, not the applicable law or assurance of success: Weir-Jones at para 56. [59] The discoverability principle is illustrated in Herman v Alberta (Public Trustee), 2005 ABQB 337, which presents factsanalogous to the case at bar. In Herman, the plaintiffs sought to amend their Amended Statement of Claim to include a damages claimfor bereavement for their adult children under the Fatal Accidents Act, RSA 1980, c F-5.

One of their arguments was that the applicablelimitation period did not commence until the Alberta Court of Appeal released a decision striking down age and marital restrictions in theFatal Accidents Act. Like Ms. Colenutt, the plaintiffs’ position was that any limitation period did not start to run until the Court ofAppeal’s decision determined that those damages were available: Herman at paras 16, 36. [60] Justice Marceau allowed the amendments on the basis that they were simply a particularization of the remedies originallysought: Herman at paras 32-33.

However, he went on to consider the plaintiffs’ argument that the claim was not discoverable until theCourt of Appeal’s decision. At paras 37-38, Justice Marceau held: I am not convinced this is the case. In my opinion, the phrases "knew or ought to have known" and "warranted in bringing a proceeding"refer to some concept of discoverability. Discoverability refers to facts, not law, and error or ignorance of the law, or uncertainty of thelaw, does not postpone the commencement of a limitation period: Hill v South Alberta Land Registration District (1993), 1993 ABCA75 , 100 D.L.R. (4th) 331 (Alta. C.A.) at p. 336.

…… The Plaintiffs' claim for bereavement was discoverable as soon as all of the underlying facts required to make out that claim were known, i.e., in October 1997. [ 61 ] Ms. Colenutt argues that prior to February 28, 2022, there was no remedy in statute or common law for a pattern of family violence. Hence, she did not know that her injuries warranted bringing a proceeding until the Ontario Superior Court recognized the tort of family violence. Essentially, Ms.

Colenutt’s position is that the limitation period began to run on February 28, 2022, and that since she brought the Application to amend her pleadings within the same year, the two-year limitation period has not expired. I reject Ms.

Colenutt’s position for the reasons indicated below. [ 62 ] Ahluwalia makes it clear that “Courts have long recognized that patterns of physical and emotional abuse constitute tortious behavior” and that “courts have considered the patterns of behavior that constitute intimate partner violence without limiting their focus to individual incidents”. ( Ahluwalia , para 74) Some of these cases are reviewed at paras 75 through 85 of Ahluwalia . [ 63 ] Accordingly, there has for some time, been support in the law for a claim for damages arising from tortious behavior due to patterns of physical and emotional abuse between intimate partners. [ 64 ] Ms.

Colenutt has not put forward any personal circumstances which are serious, significant, and compelling such that it was unfeasible for her to initiate an action earlier. [ 65 ] Ms. Colenutt did not need to rely on a tort of family violence or a tort of coercive control to include her claims related to a pattern of conduct in her pleadings. These allegations could have been pled at any time during the limitation period to particularize a claim for such tortious conduct. [ 66 ] Even if one assumes that the limitation period commenced when the parties separated in June of 2016 (Ms.

Colenutt’s evidence and her best-case scenario), the application to amend the Statement of Claim was not filed until November 3, 2022, well beyond the two-year limitation period. Therefore, Ms. Colenutt’s proposed amendments are prima facie statue-barred pursuant to s 3(1) of the Limitations Act . [ 67 ] However, s 3.1(1)(1)(c)(ii) of the Limitations of Action Act must also be considered to determine if the proposed amendments are captured by that

section and therefore not caught by the two-year limitation period. [ 68 ]

Section 3.1(1)(1)(c)(ii) of the Limitations Act states: 3.1

(1) There is no limitation period in respect of (

a) a claim that relates to a sexual assault or battery, (

b) a claim that relates to any misconduct of a sexual nature, other than a sexual assault or battery, if, at the time of the misconduct, (

i) the person with the claim was a minor, (ii) the person with the claim was in an intimate relationship with the person who committed the misconduct, (iii) the person with the claim was dependent, whether financially, emotionally, physically or otherwise, on the person who committed the misconduct, or (iv) the person with the claim was a person under disability, or (

c) a claim that relates to an assault or battery, other than a sexual assault or battery, if, at the time of the assault or battery, (

i) the person with the claim was a minor, (ii) the person with the claim was in an intimate relationship with the person who committed the assault or battery, (iii) the person with the claim was dependent, whether financially, emotionally, physically or otherwise, on the person who committed the assault or battery, or (iv) the person with the claim was a person under disability. (2) Subsection (1) applies to a claim in respect of

an act that occurred before or after the coming into force of this section, regardless of the expiry of any previously applicable limitation period set out in

section 3 or a predecessor of this Act. [ 69 ] Pursuant to s 3.1(1)(

a) of the Limitations Act , RSA 2000, cL-12, there is no limitation period in respect of a claim that relates to a sexual assault or battery. The amendments related to claims of sexual assault are therefore not caught by the two-year limitation period. [ 70 ]

Section 3.1(1)(c)(ii) must also be considered because the parties were in an intimate relationship at the time the alleged tortious conduct occurred. [ 71 ] The issue here is whether the proposed amendments disclose a non-sexual assault or battery.

[ 72 ] Assault, battery, and intentional infliction of emotional distress are distinct concepts in tort law. Each has distinct elements that must be established. Barker v Barker , 2022 ONCA 567 at paras 132-143 . [ 73 ] The applicable paragraphs from Barker that relate to the torts of battery and assault are summarized in Ahluwalia at paras 61- 66 as follows: 61 In Barker v Barker , 2022 ONCA 567 , 162 O.R. (3d) 337, this court recently provided a

summary of the torts of battery and assault. Although the terms are often used interchangeably, there is a distinction. At para. 138: . . . battery and assault are distinct concepts in tort law, both being examples of trespass to the person . . . a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature. [Citations omitted.] 62 The tort of battery requires direct interference with one's person. Interference is direct if it is the immediate consequence of a force set in motion by

an act of the defendant. The interference must be "harmful or offensive" or contact that is "non-trivial": Scalera , at para. 16. …. 64 Assault is conceptually different. It involves creating the apprehension of imminent harmful or offensive contact. In Barker, at para. 170 , this court approved the following statement of law from the Hon. Allen M. Linden, et al., Canadian Tort Law , 10th ed. (Toronto: LexisNexis, 2015), at §2.42: Assault is the intentional creation of the apprehension of imminent harmful - or offensive contact.

The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. [Emphasis added.] …. 66 [….] A fear of future harm is not an apprehension of imminent harm: see Barker ONCA at para. 182 . [ 74 ] For the tort of intentional infliction of emotional distress, the essential elements of the tort were reviewed at para 69 of Ahluwalia : (

i) the defendant's conduct was flagrant and outrageous; (ii) the conduct was calculated to harm; and (iii) the conduct caused the plaintiff to suffer a visible and provable illness. [ 75 ] The question is whether the proposed amendments (excluding those related to sexual assault) disclose an assault or battery. [ 76 ] A careful review of the proposed amendments, (excluding paras 20 and 29) disclose a pattern of behavior that could best be described as supporting a claim for intentional infliction of emotional distress.

They do not involve “actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person” or “intentionally causing another to fear imminent contact of a harmful or offensive nature”. [ 77 ] Though one might argue that s 3.1(1)(

c) should be read broadly so that it also applies to claims for intentional infliction of emotional injury in intimate relationships, the legislation does not go that far. [ 78 ] Therefore, unless they are saved by application of s 6 of the Limitations Act , Ms. Colenutt’s proposed amendments (excluding those related to sexual assault) will be caught by the two-year limitation period. [ 79 ]

Section 6 of the Limitations Act operates to save claims added to a proceeding after the expiration of the relevant limitation period. Sections 6(1) and (2) state: 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied.

(2) When the added claim (

a) is made by a defendant in the proceeding against a claimant in the proceeding, or (

b) does not add or substitute a claimant or a defendant, or change the capacity in which a claimant sues or a defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding. [ 80 ] If Ms. Colenutt’s proposed amendments satisfy the requirements of s 6(2), Mr.

Colenutt cannot rely on a limitation period to claim immunity from liability. [ 81 ] The focus here is on whether the added claim relates to the conduct, transaction or events described in the original pleading? [ 82 ] Under s 6(5) of the Limitations Act , the claimant has the burden of proving that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding. There is no bright-line test for determining relatedness; Crystal Ridge Fuels Ltd v McIntosh , 2013 ABQB 618 at para 71 .

Whether a new claim is related to the same conduct, transaction or events requires an assessment of the whole factual and legal context: Homersham v New Urban (Ramsay Exchange) GP Ltd , 2023 ABCA 86 at para 13 ; DeSoto Resources Limited v Encana Corporation , 2010 ABCA 110 at para 8 . [ 83 ] In Astolfi , Marion J offered the following guidance at para 111:

[111] No firm line can be drawn between an unrelated new claim and what has previously been pleaded; too general a definition wouldgive the plaintiff an unlimited ability to add statute-barred claims: DeSoto at para 8. However, the "relatedness" of the new claims to theconduct, transaction or events described in the original pleading has been described as being broadly defined and having a low threshold:Bow Valley Insurance Services

(1992) Limited v Shah, 2005 ABCA 304 at para 14; Domenic Construction Ltd v Primewest CapitalCorp, 2019 ABQB 840 at para 46, rev'd in

part 2020 ABCA 265; Kang v MB, 2019 ABQB 246 at para 56.

But it is not unlimited; theremust be more than only a cursory or superficial connection: 513320 Alberta Inc v St Jean, 2015 ABQB 826 at paras 34-35; Stirling vEncana Corporation, 2019 ABQB 182 at para 40. [84] In DeSoto Resources Limited v Encana Corporation, 2010 ABCA 110 at para 10, the Court held that one test for whether anew claim is involved is to examine the extent to which a new set of conduct, transactions and events would have to be proven at trial,and whether the documents or other evidence needed to prove the new allegations differ significantly from those required to prove theoriginally pleaded facts. [85] In the case at bar, Ms.

Colenutt’s original Statement of Claim relates only to one event that occurred in 2016. The proposedamendments significantly expand the scope of the litigation, not just in terms of the time frame of the alleged events, but also the natureof the claims. The amendments place the parties’ entire relationship into issue. If allowed, the amendments would require significantlymore facts to be proven at trial. The evidence needed to prove the new allegations would differ significantly, in nature and quantity, fromthe evidence required to prove the one incident complained of in the original pleadings. [86] Ms.

Colenutt has not met her burden of proving that the added claims relate to the conduct, transaction or events described inthe original pleading in the proceeding. Therefore, the proposed amendments (excluding those related to sexual assault) are not saved bys 6 of the Limitations Act.

Summary and Conclusion [87] I would not disallow the proposed amendments on the basis that they are prejudicial, hopeless, lack the required evidentiaryfoundation, or were done in bad faith. [88] However, I do find that with the exception of the proposed amendments related to sexual assault and the amendment to para39(b), the proposed amendments seek to add a new cause of action, intentional infliction of emotional distress, after the expiry of alimitation period. [89] I also find that the exceptions in s 3.1 and s 6 of the Limitations of Actions Act do not apply and that the proposedamendments, aside from those alleging two incidents of sexual assault, are statute-barred. [90] For all of these reasons, Ms.

Colenutt’s Application to amend the Statement of Claim in Action number 1803 13633 is grantedonly with respect to paras 20 and 29, which contain allegations of sexual assault and to para 39(b), which could relate to the originalpleadings or the allegations to sexual assault. The balance of the proposed amendments are disallowed because they seek to add a newcause of action after the expiry of a limitation period. [91] With respect to the balance of the relief sought by Ms. Colenutt, I grant the Application to combine Actions 4803 176550 and1803 13633.

In doing so, I am considering Rule 3.72 of the Alberta Rules of Court, which allows the Court to consolidate two actionsand order that two or more claims be tried together. I am considering the comments of Paperny JA at para 6 of Alliance Pipeline Limitedv Universal Ensco Inco, 2007 ABCA 285 , 2007ABCA 285. I am also considering that both Actions arise from the intimaterelationship between the parties. I am considering the stage of the proceedings in both Actions, the impact on the family of two separateActions and two separate trials, and the scarcity of judicial resources.

I conclude that it is in the interests of justice that the Actions beconsolidated and tried together. [92] For service of the Amended Statement of Claim, and as Mr. Colenutt has Counsel, I permit the Amended Statement of Claimto be sent to each of Mr. Colenutt and Ms. Boyles by email. [93] Failing agreement between the parties, costs may be spoken to within 45 days. Heard on the 29th day of March, 2023. Dated at the City of Edmonton, Alberta this 10th day of October, 2023. D.A. Yungwirth J.C.K.B.A.

Appearances: Laura H. Bruyer, KC Bruyer & Mackay LLP for the Applicant Melissa M. Boyles Prowse Chowne LLP for the Respondent