Court of Appeal for Ontario
Between:
Everett Reece Respondent (Plaintiff)
and
Cory Wase and Ken Wase Appellants (Defendants)
and
David Reece, Deanne Weller, Eric Weller, minors by their Litigation Guardian, The Children’s Lawyer and Tina Weller and Paul Weller Respondents (Third Parties)
Before: Laskin, Gillese and Juriansz JJ.A.
Counsel:
David Zarek for the appellants (defendants)
Saman M. Jaffery, for David Reece, by his litigation guardian, the Office of the Children’s Lawyer
Greg Robson, for the respondent (third party) Tina Weller
Heard & released orally: April 23, 2010
On appeal from the judgment of Justice Whitten of the Superior Court of Appeal dated September 29, 2009.
ENDORSEMENT
1On consent, the third party claim against David Reece is dismissed. The third party claim against Deanne Weller, Eric Weller and Paul Weller is discontinued. Consequently, the appeal concerns only the third party action against Tina Weller.
2While significant deference is due to the conclusion of the motion judge, we would allow the appeal.
3The motion judge stated the correct test. However, we are persuaded that the motion judge did not attach sufficient weight to the fact that this was a third party action. His reasons indicate that he proceeded solely on the basis that the responsibility for advancing the third party claim rested on counsel for the defendants. The motion judge failed to recognize that the progression of the third party claim to trial was entirely dependent on the main action. The main action had been struck from the trial list, finally reinstated, and is still pending. The third party action was progressing steadily, albeit slowly, when the registrar dismissed it. Discoveries had been completed.
4Moreover, when the third party action was dismissed, the form of the court’s order misled all counsel into believing that it was the main action that had been dismissed. The style of the dismissal order did not include the third parties. Counsel all acted diligently when the mistake was discovered.
5In addition, the motion judge’s finding of prejudice has been overtaken by subsequent events. That finding rested entirely on the “unbearable” effect of the delay on the memories of the minor third party defendants. The defendants are no longer proceeding against the minors, and the respondent recognizes that, as a result, no prejudice would be suffered by the reinstatement of the third party claim.
6The appeal is allowed. The order of the motion judge and the order of the registrar are set aside and the third party claim is reinstated.
7The appellants/defendants are entitled to their costs of the appeal in the amount of $2,500 plus disbursements and GST.
8There shall be no costs of the motion vis-à-vis the third party Tina Weller.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“R.G. Juriansz J.A.”