| |||||
|
Llano v. Royal Shirt Co. Between Myriam Llano, plaintiff (respondent), and Royal Shirt Company Limited, Mary D'Abondanza and Luigi D'Abondanza, defendants Court File No. 96-CU-116229 Ontario Court of Justice (General Division) Master Clark Heard: June 12, 1997. Judgment: June 20, 1997. Counsel: S. Shields, for the plaintiff. A.E. Renton, for the defendants. -------------------------------------------------------------------------------- 1 ????MASTER CLARK:-- The defendant brings this motion for leave to amend its statement of defence as of right, citing rule 26.01. 2 ????The plaintiff opposes the motion on grounds that: (1)? the amendment involves a withdrawal of an admission so that rule 51.05 takes the precedent, and that (2)? as a result of intervening proceedings, the plaintiff has been prejudiced beyond what costs or an adjournment can repair. 3 ????Broadly speaking, the plaintiff sues for damages for wrongful dismissal and the defence is that the plaintiff was a union member subject to a collective agreement so that all of the plaintiff's remedies must flow from the collective agreement. In the result the plaintiff is not entitled to maintain the within action. 4 ????The proposed amendment, involves replacing one sentence with another in paragraph 3 of the statement of defence. 5 ????The existing sentence reads: "The reason that the plaintiff was ineligible for union membership was that she was in the "office/clerical" rather than the production." 6 ????It is common ground, if not patently obvious, that the sentence is an admission that while the plaintiff was working as "office/clerical," she was ineligible for union membership. 7 ????Clearly, to delete this sentence would involve the withdrawal of an admission. Therefore Rule 51 is the guiding rule on this motion because it more specifically deals with the withdrawal of admissions. (See Antipas v. Coronous (1988) 26 C.P.C. (2d) 63 (Ont. H.C.). 8 ????The defendants say that the existing sentence was clearly a mistake, was inadvertent, and that the error should have been obvious to the plaintiff because paragraphs 6 and 11 of the statement of defence state the opposite position to that taken in the impugned sentence in paragraph 3. 9 ????Paragraph 6 reads: "At all material times, the plaintiff was represented by the Amalgamated Clothing and Textile WorKers Union (the "Union") and was subject to the terms and conditions of a collective agreement ("the collective agreement") with the defendant Royal Shirt." Paragraph 11 reads: "As of the date of all of the matters referred to in the statement of Claim, the plaintiff, as is acknowledged, was a member of a unionized bargaining unit protected by the terms of a collective agreement which dealt with all of the conduct alleged in the statement of claim. As such, she has no status to sue for these matters civilly. The collective agreement directly and indirectly, dealt with the various matters referred to in paragraphs 40 - 42, including demotion, reduction of hours, false allegations of misconduct i.e. discipline and prosecution i.e. unreasonable application of management rights. Therefore she has no status to sustain this claim and to sue civilly for these matters." 10 ????A plaintiff is entitled to take a statement of defence as it is served and to rely on an admission contained therein even in the face of vaguer allegations to the contrary elsewhere in the pleading. The plaintiff is not obliged to take steps to force the defendant to declare which of several allegations may be inadvertent. 11 ????While the defendants now say that the admission in paragraph 3 of the statement of defence was inadvertent, and that paragraphs 6 and 11 properly state their position, it could just as easily have been the reverse, and the plaintiff would never know which paragraphs were inadvertent and which were not unless and until the defendant decided to regularize its pleading. 12 ????Having sought to regularize the statement of defence by making its allegations consistent, I accept the evidence of inadvertence as found in paragraphs 6 and 11. 13 ????If the admission in paragraph 3 of the statement of defence is left in, it will make mischief all through the balance of the litigation. Therefore leave is granted to withdraw the admission contained in the last sentence of paragraph 3 of the statement of defence, on terms set out below. 14 ????Dealing with the second-half of the motion, the replacement sentence reads: "The plaintiff was not excluded from the bargaining unit because she was managerial, and, in fact, was never excluded from the bargaining at all." 15 ????That sentence is unsatisfactory as a pleading because it is ambiguous. 16 ????The defendants sought to bolster their argument by reference to the affidavit material of a non-party, filed for other purposes, in which the deponent swears to the truth of the in the allegation contained in the proposed amendment. The question before me is not whether the offered amendment is true, but whether it meets the applicable part of the test in Antipas v. Coronous (supra). It must raise a triable issue. 17 ????In this case, the proposed amendment, as ambiguous as it is, simply re-states a triable issue already raised in two other paragraphs. 18 ????Leave is not granted therefore to insert the proposed amending sentence into paragraph 3. 19 ????As noted above, the plaintiff was entitled to rely on the admission and I have no doubt that the inadvertence of the defendant has caused the plaintiff prejudice in terms of costs. The plaintiff will now have to reconsider the substance of her reply, and if the defendant's witness on the main motion has been cross-examined, it may be necessary to re-examine in view of the withdrawal. 20 ????A fresh copy of the statement of the defence in its amended form shall be delivered on or before Monday, June 23, 1997, and the plaintiff is granted 10 days from the date of such delivery to deliver an amended reply if so advised. 21 ????When the issue of costs is addressed, the plaintiff may wish to include submissions as to costs experienced as a result of a withdrawal of the admission. MASTER CLARK |
||||
| |||||
Last modified: 23-02-19 By: admin | |||||
