



COURT OF APPEAL FOR ONTARIO

CITATION: French v. H&R Property Management Ltd., 2019
    ONCA 302

DATE: 20190416

DOCKET: C65128

van Rensburg, Benotto, Harvison Young JJ.A.

BETWEEN

Lloyd French

Plaintiff (Appellant)

and

H&R Property Management Ltd. and Vitali
    Vytrykouch

Defendants (Respondents)

Lloyd French, acting in person

Mark A. Freake, for the respondents

Heard: March 12, 2019

On appeal from the judgment of Justice James F. Diamond of
    the Superior Court of Justice, dated February 5, 2018, with reasons reported at
    2018 ONSC 769.

Harvison Young J.A.:

Overview

[1]

The appellant Lloyd French appeals from the dismissal of his action
    against the defendants following a trial. Although the appellant raises a
    number of grounds of appeal, the heart of the appeal is his submission that the
    trial judge erred in refusing to permit him to amend his pleadings during trial
    to plead negligence.

Factual Background

[2]

The underlying dispute between the appellant and
    H&R Property Management Ltd. arose out of Mr. Frenchs eviction from a
    residential apartment building managed by H&R.

The other respondent, Vitali Vytrykush,
[1]
was employed by H&R as the
    property manager for the apartment building in question.

[3]

On April 30, 2010, the appellant gave notice
    that he was terminating his tenancy, effective June 30, 2010. As a result, the
    respondent arranged showings of the apartment and found a new tenant. The
    appellant then sought to rescind his notice and refused to move out. The
    Landlord Tenant Board terminated his tenancy and required him to vacate his
    unit by July 31, 2010. The decision was upheld on review. The appellant still
    refused to move out. On August 24, 2010, the Sheriff posted a notice on
    his apartment door for eviction the following day. The appellant was also given
    notice that he was to remove his property from the apartment building by August
    28, 2010.

[4]

The appellant arrived to retrieve his property
    on August 27, 2010. When the respondents saw him remove a firearm, they
    asked him to leave, locked the door and called the police. Mr. French, in turn,
    alleges that he was assaulted by Mr. Vytrykush, without warning, and ordered to
    leave. He says that his three cats were in the apartment at that
    time. When he returned later that same day, he alleges that one of his
    cats, named Pony, was gone. He returned on September 10, 2010 to pick up the
    rest of his belongings, by then in storage. He alleges many things were
    missing.

[5]

Mr. French then commenced this action against
    the respondents. He sought damages for the assault allegedly perpetrated by Mr.
    Vytrykush and damages for the respondents alleged breach of s. 41 of the
Residential
    Tenancies Act 2006
, S.O. 2006, c. 17 (RTA), arising from their failure
    to make his property available for him to retrieve for a period of 72 hours.
[2]
A core focus of Mr. Frenchs
    statement of claim was the alleged loss of Pony, which Mr. French claimed had
    caused him significant emotional distress.

[6]

A simplified rules trial took place over the
    course of three days in January 2018. On the first day of trial, in response to
    questions from both counsel for the respondents and the trial judge, it became
    clear that Mr. French was abandoning his assault claim and that he sought to
    assert a claim in negligence relating to the loss of Pony. He subsequently
    brought a motion under r. 26.01 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 to amend his statement of claim. This motion was opposed
    by the respondents.

[7]

The trial judge refused to allow the amendment,
    finding that Mr. Frenchs negligence claim was statute-barred under s. 4 of the
Limitations Act, 2002
, S.O. 2002, c. 24, sched B. The trial judge also
    dismissed Mr. Frenchs remaining claim for breach of s. 41 of the RTA, as well
    as H&Rs counterclaim for arrears of rent.

[8]

Mr. French raises a number of grounds of appeal.
    He submits that the trial judge erred in:

1.

dismissing his motion to amend the statement of claim to plead
    negligence;

2.

concluding that the respondents had satisfied their statutory
    obligations under s. 41 of the RTA; and

3.

refusing to admit the affidavit of his ex-wife into evidence at
    trial.

[9]

I do not accept these submissions. For the
    reasons that follow, I would dismiss the appeal.

(1)

Did the trial judge err in refusing to allow the amendment pursuant to
    r. 26.01 of the
Rules
?

[10]

As this is Mr. Frenchs core ground of appeal, and
    the issue arose in the course of trial, it is important to set out with some
    detail the factual context which gave rise to Mr. Frenchs motion to amend his
    statement of claim.

[11]

On August 25, 2011, Mr. French commenced this
    action against the respondents by way of statement of claim. He sought total
    damages of $95,000 (adjusted on consent at trial to $100,000, as noted below)
    pursuant to two causes of action, as particularized at para. 11 of his
    statement of claim:

The plaintiff asserts the material loss, the pain due to the
    physical assault and the severe emotional trauma caused by the assault and the
    loss of a longtime pet, was caused solely by the illegal actions of the
    defendants, Mr. Vytrykush, and the corporation, and are therefore in law
    responsible. The particulars of said responsibility due to their actions are as
    follows:

(a)

The illegal physical assault is
    contrary to the Criminal Code of Canada and therefore speaks for itself.

(b)

The defendants were also in contravention of the Residential Tenancies
    Act  s. 41(2), (3).

[12]

At the outset of the first day of trial, Mr.
    French sought leave to amend his statement of claim to adjust the quantum of
    damages sought. He did not seek to make any other amendments to his statement
    of claim. The respondents consented to this amendment.

[13]

Still on the first day, Mr. French expanded on
    his affidavit evidence in-chief and was cross-examined by counsel for the
    respondents. In short, Mr. Frenchs evidence was that, when he returned to the
    apartment on August 27, 2010, Mr. Vytrykush assaulted him by shoving him out of
    the apartment, slamming the door in his face, and locking the door. He
    testified that Mr. Vytrykush yelled through the door that he was calling the
    police and Mr. French should leave the property immediately. Mr. French left
    without his three cats. When he returned later that day to retrieve his cats,
    Pony was gone.

[14]

Mr. French further testified that he returned to
    retrieve his belongings from the storage unit on September 10, 2010. He was only
    allowed that one visit. Since Mr. French could not afford to rent a moving van
    again, he was only able to retrieve a small portion of his property. The rest of
    his property, he alleged, was lost.

[15]

Mr. French was then cross-examined by counsel
    for the respondents. In the course of his cross-examination, Mr. French
    clarified that he was no longer seeking damages in relation to the alleged
    assault or the breaches of the RTA. He further clarified that the damages he
    was claiming for mental distress related to the loss of [his] pet cat.

[16]

At the conclusion of Mr. Frenchs
    cross-examination, the trial judge sought to clarify exactly what claims Mr.
    French was still pursuing. Mr. French reiterated that he was not pursuing his
    claim for damages for assault, nor his claims for breach of the RTA.
[3]
After an extended exchange,
    Mr. French indicated that he was only pursuing a claim for damages arising from
    the loss of Pony, and that the loss flowed from the respondents breach of a
    duty of care by leaving the apartment doors open while removing his property,
    which allowed Pony to escape.

[17]

The trial judge indicated that, on his initial
    review of the statement of claim, Mr. French had not pled a claim in
    negligence. This led Mr. French to bring a formal motion to amend his statement
    of claim pursuant to r. 26.01 of the
Rules
, which was argued in
    conjunction with closing submissions at the end of trial. Mr. French provided
    the following proposed amendment in support of his motion to amend, which were
    to comprise paras. 11 (c)  (f) in his proposed amended statement of claim:

(c) The defendants knew the cats were in the apartment, having
    allowed them to stay, and agreeing to feed them until the plaintiff returned on
    August 27, 2010 to retrieve them and his household belongings.

(d) Knowing the cats were in the apartment and agreeing to
    allow them to stay for these two days, the defendants owed the plaintiff a duty
    of care to take reasonable precautions to ensure their safety.

(e) The defendants were in breach of that duty of care in
    keeping both the front door to the apartment and the balcony door open,
    allowing one of the cats, Pony, to escape even after the plaintiff asked twice
    for the doors to be closed.

(f) A reasonable person would be aware
    that if one of the plaintiffs pets went missing, he would suffer mental injury
    as a result.

[18]

The respondents opposed the amendment. They took
    the position that negligence had never been pleaded  or at issue  in the 6.5
    year lifespan of the litigation.

(a)

The
    trial judges decision

[19]

The trial judge refused to allow the amendment. He
    noted that Mr. French had admitted that he had full knowledge of all the
    material facts upon which his claim in negligence was based by August 27, 2010,
    such that the amendment would be time-barred if it asserted a new cause of
    action. Thus, the issue was whether the amendments were merely inserted by way
    of clarification of the original Statement of Claim and/or  [whether] there
    were sufficient material facts originally pleaded by [Mr. French] which,
    liberally construed, could nevertheless support a cause of action in negligence
    against the defendants: at para. 23.

[20]

The trial judge found that Mr. French had not
    met his burden of demonstrating that the material facts already pled in the
    statement of claim could support a claim for negligence in relation to the
    removal of Mr. Frenchs property, leading to the loss of his cat. In the trial
    judges view, the material facts pled in relation to the assault could not
    support a claim in negligence, as a pleading of battery is a separate and
    distinct tort from negligence: at para. 24. Similarly, the material facts pled
    in relation to the alleged breach of s. 41 of the RTA could not support a claim
    in negligence. Section 41 of the RTA imposes certain obligations upon a
    landlord when it seeks to dispose of an evicted tenants property. In
    particular, the landlord cannot sell, retain or otherwise dispose of a tenants
    property before 72 hours has elapsed from the enforcement of the eviction
    order, and the landlord must make the property available to the former tenant
    at a location close to the unit during that time: at para. 25.

[21]

The trial judge further noted, at para. 27, that
    the content of the proposed amendments underscored that the original statement
    of claim was deficient, and failed to plead sufficient material facts to
    support a claim in negligence:

There are no material facts
    pleaded in the original claim which could support a claim in negligence against
    the defendants. Ironically, the particulars raised by the plaintiff in his new
    paragraphs 11(c) through 11(f) are exactly the type of facts which could, in
    theory, support a finding of a duty of care and a breach of that duty. Their
    absence from the original claim only serves to highlight the fact that the new
    amendments are simply out of time.

(b)

The
    parties positions on appeal

[22]

The appellants position is that the trial
    judges suggestion at trial that there was no cause of action in negligence
    pleaded came as a surprise because he had always thought of his action as claiming
    negligence, as the doors of the apartment had been left open on August 27, 2010
    when he went to retrieve his belongings, allowing Pony to escape. Mr. French
    acknowledges that negligence was not expressly pleaded in the statement of
    claim, but argues it was implied throughout. He also points to the rest of the
    pleadings in the action, which he says indicate negligence was in issue from
    the beginning of the proceedings. For example, in the respondents statement of
    defence, the respondents plead that the door to the Apartment was consistently
    closed during August 27 and deny that Mr. French in fact had a third cat. Mr.
    French also notes that in his reply, he made express reference to negligence,
    stating:

When the plaintiff arrived at the
    apartment, and at all material times, both the front door, and balcony door
    were propped open wide. The plaintiff contends that this constituted negligence
    on the part of the defendants since they knew and even admit that there were
    pet cats in the apartment. The plaintiff also contends that this was the means
    for the non-fictitious Pony to go missing.

[23]

The respondents state that they only understood
    there to be two causes of action  the claim for assault and the claim for
    breach of the RTA. They point to para. 11 of the statement of claim (outlined
    above), which particularizes Mr. Frenchs claims. In the respondents
    submission, these two causes of action have been the sole focus of the
    litigation since its inception. The putative claim in negligence was not raised
    during their examination of Mr. French during discoveries, their
    cross-examination of Mr. French at trial, nor the respondents statement of law
    and authority delivered prior to trial. Further, while Mr. Frenchs reply
    refers to the respondents negligence, rr. 25.06(5) and 25.08(2) of the
Rules
preclude the assertion of a new ground of claim by way of reply
    pleading.

[24]

The respondents also argue that because the
    trial judge correctly articulated the applicable test to determine whether an
    amendment discloses a new cause of action, this court may not interfere with
    his finding in the absence of an error of law, an error in principle or a
    palpable and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235.

(c)


Analysis

[25]

In this case, there is no dispute that the
    material facts relied on by Mr. French in support of his negligence claim and
    proposed amendment were known to him as of August 27, 2010. As a result, if the
    proposed amendment is the assertion of a new cause of action, it is clear that
    it is statute-barred based on the expiration of the two-year limitation period
    provided by s. 4 of the
Limitations Act, 2002
:
Frohlick v.
    Pinkerton Canada Ltd.
, 2008 ONCA 3, 232 O.A.C. 146, at para. 24;
United
    Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers
    Holdings Limited
,
2018 ONCA 671
,
    at para. 64.

[26]

However, there is a distinction between pleading
    a new cause of action and pleading new or alternative relief based on the same
    facts as originally pleaded. An amendment is not the assertion of a new cause
    of action where the original pleading contains all the facts necessary to
    support the amendments [such that] the amendments simply claim additional
    forms of relief, or clarify the relief sought, based on the same facts as
    originally pleaded:
Dee Ferraro Ltd v. Pellizzari
, 2012 ONCA 55, 346
    D.L.R. (4th) 624, at paras. 4, 13-14; see also
1100997 Ontario Ltd v. North
    Elgin Centre Inc
., 2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 20-21;
Davis
    v. East Side Marios Barrie
, 2018 ONCA 410, at paras. 31-32;
Quality
    Meat Packers
, at para. 65.

[27]

The relevant principle is summarized in Paul M.
    Perell & John W. Morden,
The Law of Civil Procedure in Ontario
, 3rd
    ed. (Toronto: LexisNexis, 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.
[4]

[28]

The trial judge correctly articulated the test at
    para. 23 of his reasons, when he framed the relevant question as being whether
    there were sufficient material facts originally pleaded by [Mr. French] which,
    liberally construed, could nevertheless support a cause of action in negligence
    against the [respondents].

[29]

I would not interfere with the trial judges conclusion
    that, even reading the statement of claim generously, Mr. French failed to
    plead the requisite material facts to support a claim in negligence.

[30]

It was open to the trial judge to conclude that
    the proposed amendment was not merely an alternative claim for relief or a
    different legal conclusion based on the facts as already pled, nor the
    addition of further particulars of an allegation already pled, but rather the
    assertion of an entirely different cause of action.

[31]

To begin, the statement of claim does not
    contain the material facts necessary to ground a claim in negligence. The
    statement of claim does not plead facts that would support the existence of a duty
    on the part of the respondents to use reasonable care to prevent Mr. Frenchs
    cats from escaping in the course of removing his property from the unit. Nor
    does the statement of the claim include facts that would support the breach of
    any such duty.

[32]

The original claim contained none of the alleged
    material facts which Mr. French sought to introduce through his proposed
    amendment. These included:

·

the respondents knowledge that the cats were in the unit;

·

the undertaking to care for the cats;

·

the breach of duty in leaving the units doors open; and

·

the foreseeability of harm to Mr. French.

[33]

I
    agree with the trial judge that Mr. Frenchs proposed amendment is not an
    alternate claim for relief or a different legal conclusion based on the
    facts as already pled. Nor is it merely an insertion of additional
    particulars based on an allegation already pled. Rather, the proposed
    amendment seeks to introduce new material facts and to assert a new cause of
    action.

[34]

This conclusion is further reinforced by the
    particularization at para. 11 of the statement of claim of two specific causes
    of action: (1) the assault claim; and (2) claim for breach of the RTA. Read as
    a whole, the statement of claim sets out the material facts in support of those
    two claims, and those two claims alone. It does not set out material facts in
    support of a claim for negligence. In this vein, to allow the amendment would
    be to allow Mr. French to pursue a fundamentally different claim based on
    facts not originally pleaded:
North Elgin
, at para. 23.

[35]

While the word negligence appears in Mr.
    Frenchs reply, the respondents are correct that it is impermissible to assert
    a new claim by way of reply. In any event, the use of the word negligence by
    itself is insufficient; there must be material facts pled that would support
    negligence as a cause of action. Similarly, the fact that the respondents pled
    in their statement of defence some material facts that, if initially pled by
    Mr. French, could support a negligence claim cannot be used to cure the
    deficiencies in Mr. Frenchs statement of claim.

[36]

For these reasons, I would not give effect to
    this ground of appeal.

(2)

Did the trial judge err in concluding that the respondents had satisfied
    their statutory obligations under s. 41 of the RTA?

[37]

The trial judge dismissed Mr. Frenchs claim for
    breach of s. 41 of the RTA. He found that the respondents had complied with
    their statutory obligations under s. 41 of the RTA because  regardless of
    whatever had occurred on August 27, 2010  Mr. Frenchs belongings were
    retained on site and available to him to pick up for a 72 hour period (and, in
    fact, beyond). He noted that Mr. French had returned to the apartment building
    in September to retrieve his belongings and accepted Mr. Vytrykushs evidence
    that most, if not all, of Mr. Frenchs property had been removed from storage
    by the end of September: at paras. 35-38.

[38]

On appeal, Mr. French argues the trial judge
    erred in this conclusion. Mr. French says that after he was prevented from
    removing his property on August 27, he was only allowed to return to the
    apartment building to retrieve his belongings once, on September 10. Since he
    was unable to rent a moving truck, he was forced to leave most of his
    belongings behind.

[39]

In effect, Mr. French repeats the evidence he
    gave a trial. His version of events was rejected by the trial judge, who
    accepted Mr. Vytrykushs evidence that Mr. French had, in fact, retrieved his
    property from storage. Indeed, even on Mr. Frenchs own evidence (repeated here
    on appeal) he was given access to his belongings for a period in excess of the
    72 hours mandated by s. 41 of the RTA. There is simply no basis for this court
    to interfere with the trial judges conclusion that the respondents complied
    with s. 41 of the RTA, and I decline to do so.

(3)

Did the trial judge err by refusing to admit his ex-wifes affidavit
    into evidence at trial?

[40]

At trial, Mr. French sought to introduce into evidence
    an affidavit sworn by his ex-wife. The purpose of her evidence was to establish
    that Mr. French owned a third cat named Pony (which had been denied by the
    respondents in their statement of claim) and certain other property.

[41]

According to Mr. French, Ms. French was too ill
    to attend trial and testify in person. In the course of oral argument on the
    appeal, counsel for the respondents advised that while he had been willing to
    agree to cross-examination by video-conference, he was not willing to agree to
    the admission of Ms. Frenchs affidavit without the opportunity to
    cross-examine her on it. Mr. French did not make the necessary arrangements in
    advance of trial to have Ms. French cross-examined by video-conference.
    Ultimately, on the second day of trial, after several unsuccessful attempts to
    reach Ms. French, Mr. French withdrew the affidavit.

[42]

On appeal, the appellant argues that the trial
    judge erred by not allowing Mr. French to introduce Ms. Frenchs affidavit into
    evidence, notwithstanding that she was not available for cross-examination.

[43]

I see no merit in this argument. While Mr.
    French raises issues as to the respondents technical compliance with r.
    76.12(3) of the
Rules
, I am satisfied that Mr. French had ample notice
    of the respondents intention to examine Ms. French. Further, there was no
    prejudice to Mr. French in not admitting the affidavit, as the trial judge
    accepted that Mr. French had a third cat named Pony  a primary reason, if not
    the overriding reason, that Ms. Frenchs affidavit was tendered in the first
    place. While Ms. French would also have provided evidence that Mr. French owned
    certain other items, the trial judge simply rejected that the respondents had
    breached s. 41 of the RTA in a manner leading to the loss of any of those
    items. Ms. Frenchs evidence would have had no effect on the outcome of trial.

Conclusion

[44]

For these reasons, I would dismiss the appeal
    with costs in the all-inclusive amount of $10,000.

Released: April 16, 2019

MLB

Harvison Young J.A.

I agree K. van
    Rensburg J.A.

I agree M.L. Benotto
    J.A.





[1]

Mr. Vytrykush is misnamed in the statement of claim and style
    of cause as Vitali Vytrykouch.



[2]

Mr. French also asserted claims for breach of ss. 25 and 26 of
    the RTA, but withdrew these claims at trial.



[3]

While Mr. French said he was not seeking damages for the
    respondents alleged breaches of the RTA, he resiled from this position during
    closing submissions and indicated that he was still seeking damages for breach
    of s. 41 of the RTA. As a result, the trial judge went on to deal with this
    claim on its merits.



[4]
This statement of the law has been adopted by this court
in
East
    Side Marios
, at para. 32, and in
North Elgin
, at para. 20.


