Marks v. Ottawa (City),

• Jurisdiction: Ontario
• Judge: Feldman, Juriansz and LaForme, JJ.A.
• Neutral Citation: 2011 ONCA 248
• Citation: 2011 ONCA 248,(2011), 280 O.A.C. 251 (CA),[2011] CarswellOnt 2165,[2011] OJ No 1445 (QL),280 OAC 251,81 MPLR (4th) 161,(2011), 280 OAC 251 (CA),280 O.A.C. 251,[2011] O.J. No 1445 (QL)
• Date: 08 November 2010
• Court: Court of Appeal (Ontario)

Marks v. Ottawa (2011), 280 O.A.C. 251 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.010

Bruce D. Marks, Irina Marks and Julia Marks, by her Litigation Guardian, Bruce D. Marks (appellants) v. The City of Ottawa, Justin Maheux and Jennifer Natividad and Derek Petch (respondents)

(C51745; 2011 ONCA 248)

Indexed As: Marks v. Ottawa (City) et al.

Ontario Court of Appeal

Feldman, Juriansz and LaForme, JJ.A.

April 1, 2011.

Summary:

Neighbours obtained a right-of-entry permit from a city pursuant to a recent bylaw to allow them to enter on the plaintiffs' land in order to waterproof a portion of the neighbours' basement wall. Litigation ensued. The plaintiffs sued the neighbours, city and Petch (a city bylaw officer) alleging, inter alia, trespass, nuisance, negligence, breach of fiduciary duty, misfeasance in public office. The plaintiffs sought leave to amend their statement of claim to add further claims against the city and Petch.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 112, allowed some amendments but denied leave to amend in some respects. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal in part.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - The Ontario Court of Appeal stated that, although the general rule was that amendments to pleadings were presumptively approved, there was no absolute right to amend pleadings - The court had a residual right to deny amendments where appropriate - The proper factors to be considered were as follows - An amendment should be allowed unless it would cause an injustice not compensable in costs - The proposed amendment had to be shown to be an issue worthy of trial and prima facie meritorious - No amendment should be allowed which, if originally pleaded, would have been struck - The proposed amendment had to contain sufficient particulars - See paragraph 19.

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of court to amend - [See Practice - Topic 2101 ].

Practice - Topic 2142

Pleadings - Amendment of pleadings - Considerations governing granting of leave - [See Practice - Topic 2101 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - Neighbours obtained a right-of-entry permit from a city pursuant to a recent bylaw to allow them to enter on the plaintiffs' land in order to waterproof a portion of the neighbours' basement wall - Litigation ensued - The plaintiffs sued the neighbours, city and Petch (a city bylaw officer) alleging, inter alia, trespass, nuisance, negligence, breach of fiduciary duty, and misfeasance in public office - The plaintiffs sought leave to amend their statement of claim to add further claims against the city and Petch - A motion judge denied leave to amend some amendments on the ground that they constituted a collateral attack on the order of Ray, J., granting the plaintiffs an ex parte injunction enjoining the neighbours from encroaching on the plaintiffs' property and subsequently lifting it upon the neighbours giving an undertaking that any work constructed would not result in an encroachment onto the plaintiffs' property - The plaintiffs appealed - The Ontario Court of Appeal allowed the appeal - Ray, J., did not make a finding or ruling respecting the validity of the right-of-entry bylaw - His order did not authorize the defendants to proceed in a certain fashion - Therefore, plaintiffs' proposed amendments did not constitute a collateral attack of the order and was not an abuse of process - See paragraphs 41 to 59.

Cases Noticed:

Daniele et al. v. Johnson (1999), 123 O.A.C. 186; 45 O.R.(3d) 498 (Div. Ct.), refd to. [para. 19].

Herzig v. Markham (Town) et al., [2007] O.A.C. Uned. 556 (Div. Ct.), refd to. [para. 19, footnote 2].

Simrod v. Cooper et al., [1952] O.W.N. 720 (Master), affd. [1952] O.W.N. 720 (H.C.), refd to. [para. 19].

Vaiman v. Yates (1987), 60 O.R.(2d) 696 (H.C.), refd to. [para. 19].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 21].

Edmundston (City) v. Auberge du Parc ltée/Maison du Parc ltée (1999), 217 N.B.R.(2d) 291; 555 A.P.R. 291 (T.D.), refd to. [para. 22].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 31].

Board of Education (Roman Catholic Separate) of Windsor v. Windsor (City) et al. (1988), 27 O.A.C. 275; 64 O.R.(2d) 241 (C.A.), refd to. [para. 32].

McLaren et al. v. Stratford (City), [2004] O.T.C. 600; 50 C.P.C.(5th) 310 (Sup. Ct.), refd to. [para. 32].

Little v. Ottawa (City) et al., [2004] O.T.C. Uned. 447; 49 M.P.L.R.(3d) 115 (Sup. Ct.), refd to. [para. 32].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260, refd to. [para. 33].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128, refd to. [para. 46].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 51].

Counsel:

Richard Marks, for the appellants;

Pierre Champagne, for the respondents, City of Ottawa and Derek Petch;

No one appearing, for the respondents, Justin Maheux and Jennifer Natividad [See footnote 1].

This appeal was heard on November 8, 2010, before Feldman, Juriansz and LaForme, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., delivered the following decision for the Court of Appeal on April 1, 2011.