) ) SUSAN ROBINS Appellant (Plaintiff) – v. –, 2017 ONSC 1778

CITATION : Robins v. PriceWaterhouseCoopers LLP, 2017 ONSC 1778 DIVISIONAL COURT FILE NO.: 563/16 DATE: 20170320 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) SUSAN ROBINS Appellant (Plaintiff) – and – PRICEWATERHOUSECOOPERS LLP Respondent (Defendant) )) )) )) )) ))) C. Dockrill, for the appellant J. Mitchell & S.

Serino, for the respondent ) ) HEARD at Toronto: March 16, 2017 NORDHEIMER J. : [ 1 ] The plaintiff, Susan Robins, appeals from the order of Master Abrams dated December 23, 2016, with reasons contained in her endorsement dated November 13, 2016, which denied the appellant leave to further amend the amended Statement of Claim, in certain respects. Other amendments were allowed. For the following reasons, I would dismiss the appeal. [ 2 ] While the appellant raised five issues in her factum, they can be fairly summarized in two, as the Master did. With respect to those two issues, the Master found: (

i) that the proposed amendments advancing a claim of gender discrimination, contrary to the Human Rights Code , R.S.O. 1990, c. H.9 , was based on an entirely new set of facts and theory of liability, which was statute-barred, given the passage of the limitation period, and (ii) the remaining proposed amendments sought to plead evidence and subordinate facts, contrary to r. 25.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. With respect to these latter amendments, however, the Master allowed the plaintiff to “rework” the amendments and bring a fresh motion for leave to amend, if so advised.

The gender discrimination claim [ 3 ] In terms of the gender discrimination claim, the appellant sought to add these allegations approximately seven years after the appellant filed her original statement of claim, and approximately ten years after the events on which the claim is based. While the appellant submits that she was not attempting to allege a new cause of action, but rather only sought to advance “an alternative plea of the basis/motivation for the breach of contract claim”, in my view, that submission is belied by the nature of the amendments sought to be made.

The reality is that the gender discrimination claim is a new, and factually distinct, claim. If it is not, then the proposed amendments are irrelevant. The “motivation” for the breach of a contract is not a relevant consideration, absent a claim for aggravated or punitive damages, of which there is none in this case. Either the contract was breached or it was not. Why it was breached is of no consequence. [ 4 ] In reality, the appellant is attempting to advance a discrimination claim as an alternative basis for imposing liability on the respondent.

That is evident, among other things, from the fact that a breach of the Human Rights Code is expressly alleged. The plaintiff contends that that is not the proper characterization of the amendments. She points to the fact that, at the time of the underlying events, a separate claim for discrimination under the Human Rights Code could not be advanced in a civil claim. A civil claim for

discrimination was only permitted with the amendment of the Human Rights Code in 2008 (see s. 46.1). [5] The fact that the claim was not allowed to be advanced, because of a prior statutory prohibition, does not change the fact thatthe claim is a stand-alone cause of action. A new cause of action cannot be advanced given the expiration of the limitation period. Thatresult cannot be avoided unless a triable issue regarding discoverability is raised, and none is raised in this case.

That conclusion followsfrom the fact tha the moving party must adduce positive evidence to satisfy the discoverability question: Skrobacky (Litigation guardianof) v. Frymer, 2014 ONSC 4544 , [2014] O.J. No. 3658 (Div. Ct.) at para. 14. No such evidence appears in the record for thiscase. [6] In any event, even if these amendments could be seen as nothing more than an addition of relevant facts to the breach ofcontract claim, that does not mean that the amendments must be permitted.

The appellant’s reliance on the fact that the rule regardingamendments to pleadings (r. 26.01) is mandatory, fails to consider that the mandatory nature of the rule is expressly subject to a showingthat no non-compensable prejudice will arise from the amendment. [7] In this case, there is evidence of both actual and presumed prejudice. The actual prejudice arises from the the departure ofkey witnesses from the defendant’s employ. The defendant does not enjoy the same access to these individuals, the same control overthem, or the same ability to investigate the allegations made.

While that prejudice might not be sufficient to preclude the amendmentsbeing made, one also has to consider the presumed prejudice. [8] On that topic, I have already pointed out that more than ten years have passed since the alleged events took place. Despitethe appellant’s assertion to the contrary, there cannot be any reasonable dispute with the basic proposition that the passage of timeweakens the memories of witnesses. That reality is recognized as a core aspect of presumed prejudice. Presumed prejudice does notrequire direct evidence. It arises from a matter of common knowledge and common sense.

As Hourigan J.A. recently said in 1588444Ontario Ltd. (c.o.b. Alfredo’

s) v. State Farm Fire and Casualty Co., 2017 ONCA 42 , [2017] O.J. No. 241 (C.A.) at para. 36: In other words, after inordinate delay, the presumption in favour of granting leave shifts to a presumption that non-compensableprejudice will result if leave is granted. This makes sense as a matter of fairness. It would be very difficult for a responding party toprove, for example, the generalized prejudice that witnesses’ memories will be diminished after a lengthy passage of time. [9] There has been inordinate delay in this case. Ten years have passed.

While the appellant seeks to place the blame, for thepassage of time, entirely on the defendant, it is clear that the appellant has not pressed this matter forward in the manner that she couldhave. As is almost always the case, neither side is blameless in the delay game.

The “particulars” amendments [10] In terms of the other proposed amendments, the appellant contends that, because the proposed amendments are contained inher reply to the respondent’s demand for particulars, they become part of the pleadings, and she is therefore entitled to now include themin her statement of claim. [11] In support of her submission, the appellant relies on the following statement from Sinclair v. Markham (Town), [2014] O.J.No. 4202 where Belobaba J. said, at para. 14: The law is clear that particulars form part of the pleadings.

Once delivered, a response to a demand for particulars is deemed to form apart of the statement of claim, and together with the statement of claim form the background for the action. [12] The first sentence is a correct statement of the law. Particulars do form part of the pleadings. This conclusion flows from twofacts One is that particulars form part of the trial record pursuant to r. 48.03(1)(e). The other is that the purpose of particulars is tosupplement the allegations in a pleading, whether it is a claim or defence.

They assist in defining the scope of a claim or defence. [13] That said, I believe that it overstates the basic proposition, regarding the function of particulars, to say that they are “deemedto form part of the statement of claim”, at least insofar as the appellant interprets the impact of that statement. The appellant contendsthat, since the particulars are deemed to form part of the statement of claim, she is entitled to amend her statement of claim to incorporateher response to the demand for particulars. I do not agree with that contention.

It obscures the differences that exist between allegationsin a pleading, and particulars. In that regard, I repeat the observation made by Weiler J.A. in Janssen-Ortho Inc. v. Amgen Canada Inc., (ON CA), [2005] O.J. No. 2265 (C.A.), at para. 89: Janssen’s argument requires this court to consider the effect of particulars. Particulars are not evidence. As Master Sandler stated in theoften-cited Copland v. Commodore Business Machines Ltd. (1985), (ON SC), 52 O.R. (2d) 586: Material facts must be pleaded; evidence must not be pleaded.

In between the concept of “material facts” and the concept of “evidence”,is the concept of “particulars”.

These are additional bits of information, or data, or detail, that flesh out the “material facts”, but they arenot so detailed as to amount to “evidence”. [14] It would be undesirable to conclude that particulars are deemed to form part of a party’s pleading, because it would then leadto an argument that a response to a demand for particulars must comply with the rules for pleadings (e.g. r. 25.06) which could, in turn,lead to motions to strike responses to demands for particulars, on the basis that they offend the pleadings rules. All of that would be anunwelcome result.

It would also defeat the fundamental purpose of particulars, which is to provide the opposite party with more detail,and a better understanding, of the allegations that the party is facing. As Lerner J. said in Steiner v.

Lindzon et al. (1976), (ON SC), 14 O.R. (2d) 122 (H.C.J.), at para. 20(QL): Particulars are ordered primarily to have a pleading made sufficiently clear to enable the applicant to frame his answer thereto properly;the secondary purpose is to prevent surprise at trial: [citation omitted] [15] Admittedly, there may be situations where the allegations in a pleading are so bald that the court, rather than ordering

particulars, would order the delivery of a fresh pleading, but that is not this case. In any event, even if the court were to consider ordering that the particulars be included in a pleading, as I have already noted, they must then comply with the rules applicable to pleadings. In that respect, there is the basic requirement that the pleading contain “the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved”: r. 25.06(1). The amendments proposed by the appellant are replete with pleadings of evidence.

Presumably, it is that problem that led the Master to allow the appellant to rework her proposed amendments and try again. [ 16 ] In the end result, I am unable to find any error in the conclusions reached by the Master with respect to her disposition of the appellant’s motion to amend her amended statement of claim. [ 17 ] The appeal is dismissed. Having reviewed the costs outlines of the parties, I fix the costs of the appeal at $10,000 inclusive of disbursements and HST, payable by the plaintiff to the defendant, within thirty days. NORDHEIMER J. Date of Release: March 20, 2017 CITATION : Robins v.

PriceWaterhouseCoopers LLP, 2017 ONSC 1778 DIVISIONAL COURT FILE NO.: 563/16 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: SUSAN ROBINS Appellant – and – PRICEWATERHOUSECOOPERS LLP Respondent REASONS FOR JUDGMENT NORDHEIMER J.

Date of Release: