Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought leave to amend the Statement of Claim nearly 7 years after it was filed, introducing new allegations related to design and construction deficiencies.

• Proposed amendments included claims that the stairs and handrails were non-compliant with the National Building Code and the Occupational Health and Safety Act.

• The actual stairs, built in Summer 2015 and replaced in June 2024, were no longer available for inspection, raising a concern of lost physical evidence.

• Defendants contended that this evidence loss impaired their ability to defend against the new claims and barred possible third-party contribution from TNT Construction due to limitation expiry.

• The Court found the original pleadings did not alert Defendants to design/construction issues, making the late amendments unjustified.

• Motion to amend was denied due to resulting prejudice; costs of $1,250 were awarded to the Defendants.

Background and procedural history

Juanita Davidson filed a Notice of Action with Statement of Claim on May 1, 2017, alleging negligence after a slip-and-fall incident on February 9, 2016. The fall occurred on stairs outside a grocery store operated by Manuel Groceries Limited, on property owned by Loblaws Inc. The original claim focused solely on the alleged failure to maintain the stairs in a safe condition.

Statements of Defence were filed by both Defendants by September 7, 2017. Although discoveries took place in 2018, the case did not progress substantially until 2024.

On June 4, 2024, Plaintiff’s counsel advised Defendants of the intent to proceed to trial. On December 14, 2024, a motion was filed seeking to amend the Statement of Claim to include new allegations that the stairs were negligently designed and constructed, and not compliant with applicable building codes.

Expert reports and evidence loss

The new claims were prompted by an expert report from forensic engineer Andrew Happer, retained around June 14, 2024. His report, dated October 9, 2024, noted the stairs had been altered since the accident. Happer based his analysis on photographs and computer modeling, not direct inspection.

Manuel Groceries had replaced the stairs in June 2024, and no notice had been given to the Plaintiff before doing so. Plaintiff's counsel had not requested access to the stairs prior to their removal. After receiving the Plaintiff’s expert report, the Defendants retained structural engineer Robert Vale, who reported that, without the actual stairs, he could not assess compliance or potential causes.

Arguments and judicial analysis

Defendants cited three forms of prejudice: (1) permanent loss of key evidence, (2) potential loss of a third-party remedy against TNT Construction due to limitation periods, and (3) extreme delay. Plaintiff countered that the stairs were removed without warning, and that the amendment was in the interest of justice.

The Court addressed preliminary objections to affidavit evidence but found no serious deficiencies under Rule 4.05(2) or Rule 39.01(4). Affidavits and exhibits, including an insurance adjuster’s report from 2016, were deemed admissible.

Justice Petrie examined Rule 27.10 and relevant precedent (including Triathlon Leasing Inc. v. Juniberry Corp. and ALGO Enterprises Ltd. v. REPAP New Brunswick Inc.), emphasizing that amendments should only be refused where prejudice cannot be compensated by costs or adjournment.

Decision and conclusion

The Court found this to be one of the "rare circumstances" justifying refusal of an amendment. It concluded that:

• The Plaintiff’s original pleadings did not put the Defendants on notice regarding design or construction deficiencies.

• The Plaintiff’s delay—over seven years—resulted in the destruction of key evidence.

• This loss impaired the Defendants’ ability to defend themselves and could not be remedied by adjournment or costs.

Further, the Court accepted the Defendants’ argument that the delay might prevent them from pursuing a claim against TNT Construction due to expiry of limitation periods.

Disposition

Justice Petrie dismissed the Plaintiff’s motion to amend the Statement of Claim. Costs of $1,250, inclusive of disbursements and HST, were awarded to the Defendants. The Court also indicated a willingness to schedule a Case Management Call to discuss next steps.