Britton v. Manitoba, (2011) 270 Man.R.(2d) 43 (CA)

• Judge: Monnin, Hamilton and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 27, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 270 Man.R.(2d) 43 (CA);2011 MBCA 77

Britton v. Man. (2011), 270 Man.R.(2d) 43 (CA);

      524 W.A.C. 43

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. SE.026

Debra Britton (plaintiff/respondent) v. The Government of Manitoba (defendant/appellant)

(AI 10-30-07484; 2011 MBCA 77)

Indexed As: Britton v. Manitoba

Manitoba Court of Appeal

Monnin, Hamilton and Chartier, JJ.A.

September 9, 2011.

Summary:

The plaintiff sued the defendant, seeking a declaration that she was totally disabled within the meaning of the Government of Manitoba Long Term Disability Income Plan, judgment for unpaid disability income benefits and general and aggravated damages. She sought an order granting leave to amend her statement of claim.

The Manitoba Court of Queen's Bench, in a decision reported at 260 Man.R.(2d) 297, allowed the motion. Manitoba appealed respecting the allowed amendment to include a claim for punitive damages.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The plaintiff sued the defendant, seeking a declaration that she was totally disabled within the meaning of the Government of Manitoba Long Term Disability Income Plan, judgment for unpaid disability income benefits and general and aggravated damages - She sought an order granting leave to amend her statement of claim to add a claim alleging breach of an alleged duty of good faith and fair dealing and a claim for punitive damages - The motion judge held the proposed amendment did not seek to add a new cause of action and, therefore, there was no limitation issue to address - The Manitoba Court of Appeal dismissed Manitoba's appeal - The motion judge did not err in law in holding that the plaintiff's claim was a claim under an insurance contract - Therefore, the plaintiff was entitled to assert a claim for breach of an implied duty of good faith and fair dealing and to seek punitive damages arising from that alleged breach - The alleged breach, as set out in the amendments, was an actionable wrong independent of the alleged wrongful termination of disability benefits - It was not an independent cause of action in this case - Therefore, the motion judge did not err in law when he allowed the amendments to the plaintiff's statement of claim.

Practice - Topic 2115.1

Pleadings - Amendment of pleadings - To add claim for punitive damages - An issue on this appeal was whether an independent actionable wrong required for a claim of punitive damages was, by definition, a separate cause of action - The Manitoba Court of Appeal stated, inter alia, that a cause of action was a set of facts that provided the basis for an action in court - The word action was used, not remedy - This was important as punitive damages were a remedy (albeit a non-compensatory one), not an action - Therefore, a claim for punitive damages did not, in and of itself, determine whether the claim was an independent cause of action - The question of whether the amendments constituted a new cause of action could be reframed to ask whether the amendments introduced a new set of facts that provided the basis for an action in court - What was required when claiming punitive damages was an actionable wrong (conduct deserving of punishment by punitive damages) - An actionable wrong could be an independent cause of action, but it need not be - It depended on whether the actionable wrong could sustain an action on its own - See paragraphs 1, 35, 38, and 44.

Practice - Topic 2115.1

Pleadings - Amendment of pleadings - To add claim for punitive damages - [See Practice - Topic 2111 ].

Cases Noticed:

Desrivieres v. Manitoba (2002), 170 Man.R.(2d) 139; 285 W.A.C. 139; 2002 MBCA 153, refd to. [para. 5].

J-Sons Inc. v. Paterson (N.M.) & Sons Ltd. (2009), 246 Man.R.(2d) 176; 2009 MBQB 263, affd. (2010), 255 Man.R.(2d) 149; 486 W.A.C. 149; 2010 MBCA 67, refd to. [paras. 17, 20].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 17].

McCallum v. Manitoba (2006), 203 Man.R.(2d) 161; 2006 MBQB 114, refd to. [para. 19].

Lumsden v. Manitoba (2007), 219 Man.R.(2d) 97; 2007 MBQB 227, affd. (2009), 236 Man.R.(2d) 130; 448 W.A.C. 130; 2009 MBCA 18, refd to. [para. 19].

Dimartino v. Gacek et al., [2010] O.T.C. Uned. 2124; 83 C.C.L.I.(4th) 311; 2010 ONSC 2124, refd to. [para. 20].

Atlantic International Trade Inc. v. Georgian College of Applied Arts and Technology, [2008] O.T.C. Uned. B99 (Sup. Ct.), refd to. [para. 20].

Maxwell v. Dhalla et al., [2006] Man.R.(2d) Uned. 19; 2006 MBCA 33, refd to. [para. 21].

Ranjoy Sales and Leasing Ltd. et al. v. Deloitte, Haskins & Sells (1990), 63 Man.R.(2d) 248 (C.A.), refd to. [para. 25].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 25].

Campbell v. Canada Life Assurance Co. (1990), 65 Man.R.(2d) 95 (C.A.), refd to. [para. 31].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 30, refd to. [para. 31].

Markevich v. Minister of National Revenue, [2003] 1 S.C.R. 94; 300 N.R. 321; 2003 SCC 9, refd to. [para. 35].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 41].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 45].

Authors and Works Noticed:

Brown, Donald J.M., Civil Appeals (2009 Looseleaf), vol. 2, c. 12, para. 12:1330 [para. 25].

Counsel:

W.G. McFetridge and B.T. Jones, for the appellant;

H.I. Pollack, Q.C., and D.E. Labun, for the respondent.

This appeal was heard on April 27, 2011, by Monnin, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following reasons for judgment for the court on September 9, 2011.