Superior Court lets Windsor amend defence in bodily injury claim against it

In an injury claim against Windsor City, the Ontario Superior Court of Justice gave the city permission to amend its statement of defence to add a defence under s. 44(10) of Ontario’s Municipal Act, 2001. 

In Hardcastle v. Corporation of the City of Windsor, et al., 2025 ONSC 5610, a single-vehicle accident allegedly occurred at the intersection of 9th Concession Road and County Road 42 in Windsor in May 2019. 

The plaintiff claimed negligence on the part of Windsor City and the occupier of the Windsor Airport. He argued that he suffered bodily injury when his vehicle drove through the intersection, entered the airport’s property, and hit a concrete barrier. 

Last Mar. 17, the city moved for leave to amend paragraph 16 of its statement of defence and crossclaim to add a defence under s. 44(10), which required a person intending to sue a municipality for bodily injury arising from a public road’s alleged non-repair to notify the municipality within 10 days. 

In the proposed amendment, the city asserted that the plaintiff’s negligence caused any injuries and damages, given that he failed to: 

• observe the sign showing the road’s end and the requirement to turn 
• follow the stop sign for traffic at the intersection 
• adhere to the rules of the road under Ontario’s Highway Traffic Act, 1990 
• properly apply his brakes 
• perform any manoeuvres to evade a collision 
• take the steps to avoid the accident by exercising reasonable care 
• take advantage of the last clear chance to prevent the accident 
• keep a proper lookout 
• maintain appropriate control of his motor vehicle 
• keep his vehicle in working order 

The city also alleged in its proposed amendment that the plaintiff: 

• was an incompetent driver without reasonable self-command and control 
• travelled at an excessive speed in the circumstances 
• operated his vehicle when alcohol and/or drugs impaired his ability to do so 
• drove when physical exhaustion significantly reduced his capability 
• should not have been driving on that occasion 

The plaintiff opposed the proposed amendment. He argued that the amendment involved an issue that was unworthy of trial and unmeritorious on its face, and granting leave would cause prejudice not compensable in costs. 

On the other hand, the occupier consented to the proposed amendment. 

Defence amended

The Ontario Superior Court of Justice granted leave for the defendant to amend paragraph 16 of its statement of defence in line with the draft order, amended pleading, and mutually agreed terms. 

The court determined that permission to amend would not lead to non-compensable prejudice. 

The court accepted that the amendments might result in compensable prejudice. However, the court ruled that a cost award and reasonable terms, like strict timelines for examinations or other procedural steps, could address any prejudice. 

The court noted that the trial judge would be well-placed to decide whether to award any costs and throwaway costs due to the amended pleadings. 

The court found that the city was trying to correct its oversight in unjustifiably failing to plead the s. 44(10) defence on time. The court did not consider the proposed amendment scandalous, frivolous, vexatious, or abusive of its process. 

The court said the proposed amendment did not take the plaintiff by surprise or materially change his litigation strategy. The court added that the plaintiff knew about the unpleaded s. 44(10) defence and the possibility of amending the statement of defence, but apparently hoped that the city would not assert this obvious defence during the proceedings. 

The court held that the proposed amendment amounted to a triable issue. The court said the merits of the s. 44(10) defence seemed strong, based on the limited evidentiary record at this stage. 

The court acknowledged that the city failed to explain its delay in bringing its motion and thus rebut any presumption of prejudice. However, the court did not consider the unexplained delay long enough to trigger presumptive prejudice. 

The court noted that the city: 

• served its notice to amend about five years and nine months after the incident, almost three years and nine months after the action’s commencement, and around 15 months after setting down the matter for trial 
• served its motion to amend approximately 14 months before the scheduled trial