



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 Marios 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 respondents 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 appellants 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 Defendants premises;

b)

permitted or allowed
    the plaintiff Katherine Irene Davis to walk in or about the Defendants
    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 Defendants premises;

d)

failed to implement or
    maintain any or adequate training programs to ensure that the persons chosen to
    work at the Defendants 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 appellants alternative
    argument advanced before him. He summarized this theory at para. 24 of his
    reasons, quoting from the appellants 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 defendants 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 appellants 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 Defendants
    rights, including but not necessarily limited to the Defendants 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 judges 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 Judges decision  was not before this court on the appeal of the
    First Motion Judges 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
    appellants 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.





[1]

Counsel for the appellant informed the court that, at the time
    he prepared the amended pleading and his materials for this appeal, he was
    unaware that this court had recently dealt with the issue of whether the
CPA
is properly applicable to occupiers cases. See
Schnarr v. Blue Mountain Resorts Limited
, 2018 ONCA 313.


