COURT OF APPEAL FOR ONTARIO

CITATION: Davis v. East Side Mario's Barrie, 2018 ONCA 410

DATE: 20180501

DOCKET: C64555

MacFarland, LaForme and Epstein JJ.A.

BETWEEN

Katherine Irene Davis, Gregg James Davis and Paige Davis, a minor by her Litigation Guardian Katherine Irene Davis

Plaintiffs (Appellants)

and

East Side Mario’s Barrie

Defendant (Respondent)

J. Keenan Sprague, for the appellants

Robert Love and Edona Vila, for the respondent

Heard: April 10, 2018

On appeal from the order of Justice Chris de Sa of the Superior Court of Justice, dated August 4, 2017, with reasons reported at 2017 ONSC 6071.

MacFarland J.A.:

A.           Introduction

[1]          The appellants’ claims were dismissed following a motion for summary judgment. They appeal, arguing the motion judge erred.

[2]          While the motion judge did err, the correct result was reached. Accordingly, for the reasons that follow, I would dismiss the appeal.

B.           Background

[3]          On September 20, 2010 the appellant Katherine Davis, while carrying her newborn baby Paige, fell while going down a set of stairs to use a washroom located on the lower level of the respondent’s Barrie premises.

(1)         The first summary judgment motion

[4]           In the original statement of claim the allegations pleaded – “negligence, breach of duty, breach of contract and breach of the Occupiers' Liability Act, R.S.O. 1990, c. O.2” (the “OLA”) – were focused on the staircase on which the appellant’s fall occurred. The particulars pleaded in the original statement of claim were that the respondent:

a)   failed to take reasonable or any care to ensure that the plaintiff Katherine Irene Davis would be reasonably safe while walking in or about the Defendant’s premises;

b)   permitted or allowed the plaintiff Katherine Irene Davis to walk in or about the Defendant’s premises when it knew or ought to have known that it was unsafe and dangerous for the plaintiff to do so;

c)   failed to employ competent and experienced individuals to work at the Defendant’s premises;

d)   failed to implement or maintain any or adequate training programs to ensure that the persons chosen to work at the Defendant’s premises were sufficiently skilled, particularly with respect to proper safety procedures;

e)   failed to exercise any or adequate supervision or control over the persons chosen to work in the area of the store where the plaintiff Katherine Irene Davis was injured;

f)     failed to give the plaintiff Katherine Irene Davis reasonable or any adequate or effective warning of the dangerous situation which it knew or ought to have known existed;

g)   failed to have adequate lighting in the immediate area of the premises where the plaintiff Katherine Irene Davis was injured.

[5]          The respondent moved for summary judgment before Sutherland J. (the “First Motion Judge”) and in reasons delivered April 27, 2016 he concluded, at paras. 36 and 37:

I do not find that the plaintiffs have shown, on the balance of probabilities, that there is a genuine issue requiring a trial concerning whether the defendant did not take such care in doing an act or failed to do an act that did not make Katherine reasonably safe. It is unfortunate that Katherine fell down the stairs with her newly born daughter, Paige. But a fall in itself does not translate into a breach of duty of reasonable care by the defendant.

Thus, the plaintiffs have failed to provide evidence for which this court can find, on the balance of probabilities, that there is a genuine issue requiring a trial, being that the defendant breached its duty of care imposed by section 3 of the OLA.

[6]          The First Motion Judge also considered the appellant’s alternative argument advanced before him. He summarized this theory at para. 24 of his reasons, quoting from the appellant’s factum filed on the motion before him:

In this case it is the plaintiffs’ position that, in addition or in the alternative to allegations of breaches under the [OLA], the defendant breached its statutory warranty that its service supplied to the plaintiff would be of reasonably acceptable quality pursuant to the [Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, (the “CPA”)]. The defendant’s breach stems from the failure to explicitly advise the plaintiff of the main floor washroom. Fair and just adjudication of this novel allegation requires a ruling on the interplay between the CPA and the [OLA], and whether the CPA imposes a heightened standard of care in the context of putting forth its argument of the CPA issue on a full factual record that would develop through regular trial procedure. [Emphasis in original.]

[7]          The First Motion Judge considered this argument and accepted “that the interplay between the CPA and the OLA may be a novel argument” and one which would have some significance in determining whether or not there was any duty on the respondent to advise Ms. Davis of the existence of a main floor washroom.

[8]          He noted that the statement of claim did not plead such a duty of care nor did it cite any section of the CPA. He said:

In effect, the plaintiffs are making arguments to fend off the summary judgment of the defendant but have not pleaded those novel claims of liability against the defendant.

[9]          Nor did the appellants seek to amend their pleading before the First Motion Judge. He found the allegations in the statement of claim as pleaded were not broad enough to include the “novel claims” being advanced before him.

[10]       The First Motion Judge granted summary judgment on the basis of the record before him and dismissed the appellant’s action “as pleaded” but did so “without prejudice to the plaintiffs to bring a motion to amend their statement of claim to plead the ‘novel questions of law’ described above.”

[11]       As noted, before the First Motion Judge the appellants did not seek to amend their pleadings – the motion judge on his own motion permitted the amendment.

[12]       The motion was argued in February 2016 but the reasons were delivered in April 2016. There was no argument as to the propriety of those amendments at the time.

(2)         Appeal of the first summary judgment motion

[13]       The appellants appealed the judgment of the First Motion Judge to this court. The appeal was dismissed: 2016 ONCA 770.

[14]       Following the decision of the First Motion Judge, and before their appeal was heard, the appellants amended their statement of claim. The parties agreed to an order amending the statement of claim “without prejudice to any of the Defendant’s rights, including but not necessarily limited to the Defendant’s right to bring a further motion for procedural/substantive relief on the grounds that the amendments do not disclose a cause of action, are barred by the Limitations Act, 2002, [S.O. 2002, c. 24, Sched. B], and otherwise do not disclose a genuine issue requiring trial”.

[15]       The amended statement of claim was not at issue before this court on the first appeal. This court noted, at para. 5, that the dismissal of the claim “on the first branch of their theory of liability” was “amply supported” by the evidence.

[16]       It went on to note, at para. 6, that “the second branch of their theory of liability is expressly preserved by the motion judge’s judgment” and, at para. 7, that “the appellants are not constrained from advancing the second branch of their liability case at trial.”

[17]       It is clear that the propriety or lack thereof of those amendments – made after the First Motion Judge’s decision – was not before this court on the appeal of the First Motion Judge’s decision.

(3)         The second summary judgment motion

[18]       A second motion for summary judgment followed and proceeded before de Sa J. (the “Second Motion Judge”) and is the subject of this appeal.

[19]       The Second Motion Judge concluded, at para. 22:

In my view, it is essentially an alternative theory of liability for the same complaint that was before [the First Motion Judge]. I agree with the Plaintiffs that the Amended Claim does not advance a “new cause of action” for the purposes of the Limitations Act and under normal circumstances an amendment would be permissible under Rule 26.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194].

[20]       He went on, however, despite the agreement of the parties to argue only the limitation point before him, to conclude that there was no genuine issue for trial and, at para. 24, stated:

Given that the Amended Claim relates to the same essential complaint, I cannot see how that cause of action can be revived simply by reframing the complaint in different legal terms. If that were permitted, it would render the original decision of [the First Motion Judge] meaningless. Given that the Plaintiffs have been precluded from relying on the “condition of the stairs” as a basis for liability, there is no residual merit to the cause of action advanced in the Amended Claim. The Plaintiffs cannot simply assert a general duty to advise of the existence of a main floor washroom as a distinct basis for liability. Accordingly, I find that summary judgment is warranted.

[21]       In the alternative, the Second Motion Judge would have held that, if the duty to advise of the main floor washroom was a distinct cause of action, it would be barred by the Limitations Act: see para. 25.

(4)         The current appeal

[22]       The appellants argue essentially that it was unfair for the Second Motion Judge to proceed further after finding that the amendments did not constitute a new cause of action. They submit that the parties had agreed to argue only the limitation issue and to defer any argument on the merits to a later date. They were, in essence, deprived of a fair hearing.

[23]       The respondents argue that the Second Motion Judge erred in his conclusion that the amendments did not constitute a new cause of action, but that his conclusion to the effect that the amendments offered no more than particulars of or a reframing of the same complaint that had been properly dismissed by the First Motion Judge is correct.

[24]       In light of the agreement of counsel as to the issue to be argued before the Second Motion Judge, this appeal falls to be determined on whether or not the Second Motion Judge erred in concluding that the amendments to the statement of claim did not constitute a new cause of action. The appellants concede that if they do, their claim is statute-barred.

C.           Analysis

[25]       What is a cause of action and what constitutes a “new claim?”

[26]       Each case of course falls to be determined on its own facts.

[27]       The original statement of claim here pleaded general negligence, breach of duty, breach of contract and breach of the OLA. The focus clearly was on the appellant’s fall down the stairs as the cause of her injuries. It was on the staircase and its condition – “the area of the store where the plaintiff Katherine Irene Davis was injured”. There is no mention whatsoever of the CPA, any interplay between the CPA and the OLA or of any failure on the part of the respondent to advise the appellant of the availability of a first floor washroom.

[28]       The amended claim on the other hand, is focused on the failure to advise and contains, beginning at para. 8(f.1), new pleas in support of what the appellants describe as their alternative theory of liability.

[29]       Those pleas are that the respondent:

(f.1)   failed to supply services of reasonably acceptable quality to the plaintiff contrary to subsection 9(1) of the [CPA] and/or contrary to the terms of the implicit or explicit terms of their contract;

(f.2)   failed to identify the plaintiff as a person that required the use of an accessible Family Washroom,

(f.3)   failed to advise the plaintiff of the existence and whereabouts of the accessible Family Washroom when it knew or ought to have known that stairs presented a safety hazard to the plaintiff.

(f.4)   failed to instruct its staff to advise customers who appeared in need of the accessible Family Washroom that there existed an accessible family washroom;

(f.5)   failed to provide any markings or signage to alert customers of the existence of the accessible Family Washroom […] and to direct customers to the location of the accessible Family Washroom.

[30]       Paragraph 9 of the pleadings was also amended so as to read:

9.   The plaintiffs plead and rely upon the provisions of the [OLA] and amendments thereto and the provisions of the [CPA]. [Emphasis on additions.]

[31]       As this court recently said in 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at para. 19:

A cause of action is “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. [Citations omitted.]

[32]       And, quoting from Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3d ed. (Toronto: LexisNexis Canada, 2017), at p. 186:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.

See also 1100997 Ontario Limited, at para. 20.

[33]       The Second Motion Judge and the First Motion Judge came to opposite conclusions on whether the original statement of claim was sufficient to include the appellants’ alternative theory of liability. The former said it was. The latter said it was not, and, without argument on the point, granted leave to amend.

[34]       In my view, the amended statement of claim does not merely provide particulars of the cause of action previously pleaded and the Second Motion Judge erred in so finding.

[35]       The original statement of claim focused on the staircase that they alleged was dangerous, inadequately maintained, poorly lit and caused the plaintiff to fall.

[36]       In the amended claim the plea is very different. The appellant pleads a new duty of care: a duty to advise the appellant of the existence and availability of washroom facilities on the main floor of the restaurant. They argue that provisions of both the OLA and the CPA support these arguments. While the OLA was pleaded in the original statement of claim, it was pleaded in relation to the condition of the staircase.

[37]       The new claim is a fundamentally different claim based on facts not originally pleaded.   It is not mere particulars of the prior claim. The CPA and its relationship with the OLA is a new plea in support of a new cause of action[1] and the Second Motion Judge erred in finding to the contrary.

[38]       Because the new plea raises a new cause of action, it is statute-barred as it is raised for the first time, long after the two year period of limitation has expired.

[39]       In the end, the Second Motion Judge achieved the right result but for the wrong reason.

D.           Disposition

[40]       The appeal is dismissed. Costs to the respondent fixed in the sum of $10,000 inclusive of disbursements and applicable taxes as per the agreement of counsel.

Released: May 1, 2018 (“H.S.L.”)

“J. MacFarland J.A.”

“I agree. H.S. LaForme J.A.”

“I agree. Gloria Epstein J.A.”