) ) Nordlund Family Retreat Inc. Plaintiff (Defendant by Counterclaim)/Applicant – v. –, 2013 ONSC 258

CITATION : Nordlund v. Plominski, 2013 ONSC 258 COURT FILE NO.: 25009/09 DATE: 2013-01-16 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Nordlund Family Retreat Inc. Plaintiff (Defendant by Counterclaim)/Applicant – and – Ben Plominski Defendant (Plaintiff by Counterclaim)/Respondent ) ) ) ) ) ) ) ) ) Frederick J. Skeggs, for the Plaintiff (Defendant by Counterclaim)/Applicant Paul A. Johnson, for the Defendant (Plaintiff by Counterclaim)/Respondent ) ) ) HEARD: September 20, 2012; additional submissions on January 14, 2013 E.J. koke J. REASONS FOR JUDGMENT - ADDENDUM [ 1 ] This was a motion for

summary judgment by the plaintiff. [ 2 ] In its statement of claim the plaintiff requested a declaration that an agreement it entered into dated September 7, 2004 for an easement over the defendant’s lands was binding on the defendant, or in the alternative for a declaration that this agreement, as amended from time to time was binding on the defendant. The plaintiff also requested specific performance of the agreement and a mandatory order requiring the defendant to apply to the Ministry of Municipal affairs and Housing for a severance of the easement. [ 3 ] In its motion for

summary judgment the plaintiff also requested an order for leave to amend its statement of claim by adding the following claims for relief: (

a) a declaration that the written contract dated the 24 th day of August, 2007, made between Donald Nordlund and the defendant attached to the statement of claim as

Schedule D and of which partial performance by both parties has been made, is a binding contract between the plaintiff and the defendant for an easement over the defendant’s lands in favour of the plaintiff’s lands.” (

b) an order vesting in favour of the plaintiff’s lands an easement for egress and ingress over the lands of the defendant more particularly set out on a plan of survey by C.G. Trivers dated July 24, 2008 being over the whole of parts 1 and 2, 1R-11251, and over

part 1 of the said plan after registration, or in the alternative, a mandatory order requiring the defendant to apply to the Ministry of Municipal Affairs and Housing for the severance of the easement from the said lands according to the said plan drawn by Colin Trivers, O.L.S.” [ 4 ] At the hearing both parties made brief submissions with respect to the amendments to the statement of claim, following which they made extensive submissions with respect to the main motion for

summary judgment. [ 5 ] The Reasons for Judgment were released on October 5, 2012. Following their release it was pointed out to me in a letter from counsel for the plaintiff that the Reasons did not specifically address his client’s request that the statement of claim be amended. He stated that it was his position that it was clearly implied in the Reasons that the amendments had been granted but counsel for the defendant refused to sign a consent order to this effect.

In the absence of a court order amending the statement of claim, counsel were unable to settle the order in the main motion. [ 6 ] Counsel for the defendant replied by stating that the judgment is set out in the Reasons for Judgment and any problems with respect to settling the judgment can be dealt with by way of an appointment with me to have the judgment settled. [ 7 ] As a general rule, pleadings lay out the four corners of a dispute and a proceeding continues to be defined by the pleadings even after judgment has been obtained.

A judgment should reflect the claims made in the pleadings; to do otherwise can only lead to

confusion, both for the parties and for any other persons relying on the judgment after its release. In my view it is therefore necessary that a decision with respect to the amendment to pleadings be noted on the record in some form. Since counsel could not reach agreement with respect to the form of the order, it became necessary to

schedule an appointment to settle the judgment. These reasons follow a hearing on January 14, 2013 which was scheduled for this purpose. [ 8 ] With respect to my jurisdiction and discretion to deal with this matter after the release of my Reasons for Judgment I note that in this case judgment has not yet been entered. [ 9 ] Rule 59.06 provides that an order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on motion in the proceeding.

To the extent that it can be said that the failure to explicitly deal with the requested amendments constitutes an error, it is my view that such error arises from an accidental slip or omission and I therefore have jurisdiction to amend my Reasons for Judgment. [ 10 ] Quite apart from Rule 59.06 it is my view that a trial judge has a wide discretion to reconsider and vary or withdraw a judgment or endorsement before it is entered.

Rule 50.06 is not intended to restrict counsel and court in such circumstances and a judge is not functus officio until the judgment has been perfected by formal entry. [1] Furthermore, a trial judge has a wide discretion to even permit the reopening of a case prior to the entering of judgment, particularly in circumstances where a failure to do so would result in abuse or a miscarriage of justice. [2] [ 11 ] As a result of the inability of counsel to settle the order on the basis of my existing written Reasons for Judgment, I have chosen to supplement these reasons by preparing an addendum thereto.

In doing so I wish to emphasize that this addendum should not be viewed as a reconsideration of my Reasons, rather it should be considered as a clarification and amplification thereof. [ 12 ] For the following reasons I am ordering that the statement of claim be amended, on the terms as requested in the motion for

summary judgment. [ 13 ] Firstly, although there is no specific reference in my original reasons for judgment that I granted the amendments, it is implicit therein that the amendments were approved. The plaintiff requested that the statement of claim be amended to include a paragraph requesting a declaration that a written contract dated the 24 th day of August, 2007 between the parties is a binding contract.

This is exactly the relief I ordered in paragraph 100.1 in my Reasons for Judgment. [ 14 ] The plaintiff also requested an order that the statement of claim be amended to include a provision that there be a vesting order in favour of the plaintiff’s lands for an easement for egress and ingress over the defendant’s lands. This is exactly the relief I ordered in paragraph 100.2 in my Reasons for Judgment. [ 15 ] Secondly, at the initial hearing the defendant failed to point to any prejudice which would result from the amendment.

In this respect, I note that he had ample notice of the request by the plaintiff for the amendments. The notice of motion was filed on March 15, 2011 and the matter was not heard until September 20, 2012. [ 16 ] Thirdly, there was no merit to the defendant’s argument that the amendment would result in a breach a limitation period. In the original statement of claim the plaintiff requested a declaration that a written contract dated the 7 th day of September, 2004….. as amended from time to time for valuable consideration, is binding on the defendant. [Emphasis added].

In my view, the agreement of August 24, 2007 was regarded in the original claim as an amendment to the September 7, 2004 agreement.

It was appended to the original statement of claim for this reason. [ 17 ] Quite clearly the plaintiff’s request for an amendment to his statement of claim was not a request to commence a new and fresh claim; it was merely a clarification and narrowing of an existing claim and cause of action. [ 18 ] Fourthly, I note that Rule 26.01 which deals with amendments to pleadings directs that on motion at any stage of the action, the court shall grant leave to amend a pleading, on such terms as are just, absent prejudice.

The rule therefore has a strong mandatory component. [ 19 ] Fifthly, although I did not specifically rule on the request for the amendments at the hearing, the argument before me on the

summary judgment portion of the hearing evolved in such a way that it proceeded on the understanding that leave to amend the pleadings had in fact been granted. The alleged written contract of August 24, 2007 was the focus of many of the submissions by both parties. [ 20 ] In

summary, I find that it was implicit in my reasons for judgment that the request for the amendments to the pleadings was in fact granted. The

summary judgment submissions also proceeded on the basis that the amendments had been or would be granted. [ 21 ] In conclusion, and for the purpose of clarifying my decision and ensuring that justice has been done in the circumstances of this case, I am stating for the purposes of the record that the plaintiff’s requests for amendments to the pleadings are hereby granted for reasons set out above. These amendments are to be incorporated in a formal order or judgment of the court in these proceedings. E.J. Koke J. Released: January 16, 2013

CITATION : Nordlund v. Plominski, 2013 ONSC 258 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Nordlund Family Retreat Inc. Plaintiff (Defendant by Counterclaim)/Applicant – and – Ben Plominski Defendant (Plaintiff by Counterclaim)/Respondent REASONS FOR JUDGMENT-ADDENDUM E.J. Koke J.

Released: January 16, 2012