COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O., Paciocco and Nordheimer JJ.A.
BETWEEN
Mason Maillet by his Litigation Guardian, Asher Maillet
Plaintiff (Respondent)
and
Krzysztof Deren
Defendant (Appellant)
Sydney McIvor, for the appellant
Rachel Law and Gavin Cosgrove, for the respondent
Heard: January 29, 2025
On appeal from the order of Justice John M. Johnston of the Superior Court of Justice, dated May 31, 2024.
1Krzysztof Deren appeals from the order of the motion judge that dismissed his motion for leave to issue a third party claim. While there are some concerns with the reasons of the motion judge, I agree with the result reached and would dismiss the appeal.
A. Background
A. Background
2This action involves a claim by the minor respondent for damages resulting from a dog bite that he suffered on May 21, 2021. The dog was owned by the appellant. The statement of claim was issued on December 15, 2022, and the statement of defence was filed on January 11, 2023.
3On February 7, 2023, the appellant advised the respondent of his intention to file a third party claim against the respondent’s mother. The third party claim was not issued at that time, apparently because then counsel for the appellant “did not have sufficient time”. Examinations for discovery were held on September 20, 2023. On October 18, 2023, counsel for the appellant asked the respondent to consent to the issuance of the third party claim. The respondent refused. The motion for leave was then brought.
4The motion judge dismissed the motion on two grounds. One was that the motion judge found that the respondent would suffer prejudice if the appellant was granted leave. The prejudice found by the motion judge was the prospect of further delay in the proceeding; that the respondent would lose the benefit of his father as his litigation guardian; and that further “cross-examination of the child” would occur.
5The other ground found by the motion judge was the lack of merit in the proposed third party claim. While the motion judge alternated between saying that the proposed third party claim had no merit and that it had little merit, it is clear that the motion judge ultimately concluded that the proposed third party claim could not succeed.
B. Discussion
(i) Assessing Prejudice Under r. 29.01(1.2)
B. Discussion
6Rule 29.02(1.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 reads:
A third party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.
7The wording of the rule makes it clear that leave must be granted absent prejudice being shown. Unfortunately, the motion judge’s analysis of prejudice is flawed in a couple of respects. The motion judge treated the loss of the father as litigation guardian as a certainty. It is not. Similarly, there is no certainty, at this point, that there would be any further discovery of the respondent.
8Nevertheless, the realization that either, or both, of these events might happen in the future is still fairly considered as part of the prejudice analysis. So is the possibility that the father might feel conflicted, if the third party claim is made, such that he might choose to withdraw as litigation guardian. A new litigation guardian would then have to be found and brought up to speed. The later in the process that such a change takes place creates additional problems, including that the father has likely been privy to privileged conversations regarding trial tactics and strategy, all of which will have to be revisited with the new litigation guardian.
(ii) Delay in Issuing the Third Party Claim
(ii) Delay in Issuing the Third Party Claim
9Delay is another factor. Delay that is inordinate and unexplained is presumed to cause prejudice: Family Delicatessen Ltd v. London (City), 2006 CanLII 5135 (Ont. C.A.), at para. 6. No explanation is offered by the appellant for the nine month delay in seeking to issue the third party claim. The appellant says that he is not obliged to offer any explanation, citing Tadiem Inc. v. Allied Properties Management LP, 2018 ONSC 7676, 42 C.P.C. (8th) 414, at para. 53, aff’d 2019 ONSC 2351, 43 C.P.C. (8th) 27 and Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375, at para. 16. I do not agree with that proposition. The presence or absence of an explanation for delay is always a factor to be considered when a party is seeking an extension of time. As I shall explain below, the test for an extension of time is the appropriate test to be applied when considering a motion under r. 29.02(1.2). The failure to offer an explanation weighs against the party seeking the extension of time. It also fails to rebut any presumed prejudice. My conclusion, in this regard, is consistent with authorities such as Bell Canada v. Olympia & York Developments Ltd. (1988), 1988 CanLII 2876 (BC SC), 26 C.P.C. (2d) 113 (Ont. H.C.), aff’d (1988), 30 C.P.C. (2d) 155 (C.A.), where Rosenberg J. said, at para. 24: “Accordingly, I am of the view that the fourth party claim should not be allowed as the reason for the more than two year delay has not been adequately explained.” See also Waterloo County Board of Education v. Mark, Musselman, McIntyre, Coombe et al.; J.T. Donald & Co. Ltd. et al. (Third Parties) (1982), 1982 CanLII 2072 (ON SC), 38 O.R. (2d) 61 (H.C.), at para. 2(c).
10As the motion judge recognized, the issue of delay, by itself, is not determinative in this case. By the time of the motion, the delay in bringing third party proceedings was eleven months. That may not be an excessive delay in a case that is only slightly more than two years old, but it is nonetheless problematic given that the appellant had months earlier indicated that he would be advancing such a claim. I also recognize that this is not a case, like some others, where prejudice arises from the fact that the case has been set down for trial or the case has a trial date that would be lost.1
11Nevertheless, delay is still a matter that factors into the overall consideration of prejudice. Two circumstances make delay of more consequence in this case. One is that this is a claim by a minor. The other is that this is a proceeding under the simplified rules, which are intended to make proceedings move more quickly.
(iii) Merits of the Proposed Third Party Claim
(iii) Merits of the Proposed Third Party Claim
12The other consideration in the prejudice analysis is the issue of the merits of the proposed third party claim. In saying that, I am not suggesting that a motion of this type should be treated as some form of surrogate motion for summary judgment. Indeed, I would strongly caution against any such approach. But that does not change the accepted principle that when a party is seeking an indulgence, it is a relevant factor whether the step, for which the indulgence is sought, appears to have merit.
13There is a dispute between the parties regarding the test to be applied in assessing the merits. The appellant submits that the test should be the one applied under Rule 21, that is, that the allegations in the pleadings should be taken as being capable of being proved. The appellant says that any evidence that may exist going to the merits should not be considered. More specifically, the appellant criticizes the motion judge for evaluating the viability of the third party claim “by considering the untested evidence provided by the plaintiff.” In support of his position, the appellant principally relies on the decision in Tadiem Inc.,at para. 41, where Master Short adopted that test.
14I do not agree that the test under Rule 21 is the appropriate test to apply when one is considering the merits of a proposed third party claim in the course of determining whether leave should be granted to issue that third party claim out of time. There is no doubt that r. 21.01(1)(b) could have applied, by analogy, to the third party claim if it had been issued within the 10 day period provided by r. 29.02(1). Rule 21.01 is a specific rule that addresses questions of law arising from a pleading or the viability of a claim or defence. With respect to the latter issue, it expressly prohibits the filing of evidence. Intrinsically, the rule contemplates that the disposition of that issue will occur near the outset of the proceedings before any evidence has been revealed.
15But that is not this case. Here, the appellant is seeking an indulgence to permit him to issue a third party claim that is outside of the stipulated time limit by many months. In this case, there is available evidence regarding the events in issue and thus a preliminary determination can be made whether there is some merit to the proposed claim. In making that determination, the evidence should be viewed generously and without making any findings regarding credibility or reliability.
16In my view, the appropriate test to be applied, in these circumstances, is the test generally used in determining whether an extension of time to take a step in a proceeding should be granted. That test involves, among other things, an assessment of the merits of the proposed step. As Gillese J.A. said, albeit in a different context, in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 16: “In my view, lack of merit alone can be a sufficient basis on which to deny an extension of time”.
17As many cases have held, in assessing the merits, the threshold is not a high one. In some cases, it has been characterized as “a low bar” and other times it has been characterized as whether the step has “any real chance of success”: see Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 45, at para. 6, and Paulsson v. University of Illinois, 2010 ONCA 21, at para. 5.
18In a case such as this, where there have been discoveries held and, consequently, there has been some canvassing of the evidence that is likely to be heard at trial, the motion judge was entitled to make a preliminary determination of the apparent merits of the third party claim and factor that into his prejudice analysis. No party is benefitted by permitting the taking of a step in a proceeding that has no real merit to it.
19In the draft third party claim, the appellant pleads that the third party had the care and custody of the respondent; that she was present at the time of the incident; that she left the respondent unsupervised; and that she did not see what happened between the respondent and the dog because she was not supervising the respondent. The appellant adds, in the alternative, that if the third party did see the respondent approach the dog, she neglected to act with reasonable care to prevent the respondent from being harmed.
20As I earlier set out, the motion judge concluded that the third party claim had little or no merit. In doing so, he referred to the general standard of care set out in Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, at p. 290, namely, “the accepted standard of care by parents generally in the community”. In Arnold, the Supreme Court of Canada concluded that the mother was not contributorily negligent. I note that there are some factual similarities between that case and this one.
21The appellant has not demonstrated any error in the motion judge’s conclusion in this respect. The motion judge had the evidence of the respondent as to what had happened, both through an affidavit that he filed on the motion as well as from his examination for discovery. That evidence would tend to undercut the suggestion that the mother’s supervision (or lack thereof) played any role in the injuries suffered by the respondent. Indeed, the motion judge concluded that the “plain and obvious foreseeable outcome” of the third party claim would be that the mother would not be found liable. In that regard, the respondent’s evidence is that the dog bite occurred some five to seven minutes after he approached the appellant and chatted with him, that the appellant permitted him to pet the dog, that the dog reached out to sniff the respondent, and that, when the respondent put his hand forward to allow the dog to sniff it, the dog suddenly “lunged and attacked” the respondent.
22I recognize that none of the evidence has been tested in the fashion that it would be at a trial (or on a motion for summary judgment). Nevertheless, it is enough to provide a reason to question the merit of the proposed third party claim sufficient to call upon the appellant to respond. In that regard, the appellant did not place any direct evidence before the motion judge in support of any of the allegations made against the mother, including the lack of supervision, as I have set them out above. More specifically, the appellant did not refer to any such evidence in his affidavit on the motion. In fact, the only evidence that the appellant offered as supporting his claim for contribution and indemnity, and which is referred to in his factum, is from the examination for discovery of the respondent. The brief excerpt referred to does not actually provide that support.
23As I have already said, lack of merit in the proposed step for which leave is sought is a relevant consideration in the prejudice analysis, especially when it is coupled with other ramifications that might arise that would add to that prejudice, as discussed above. Further, the fact that a party will incur additional time and expense in responding to a proposed step, which apparently will not advance the proceeding in any material way, is also a form of prejudice – prejudice that is, at least partly, non-compensable.
C. Conclusion
C. Conclusion
24The motion judge considered all of these factors in arriving at his decision to deny leave to issue the third party claim. That decision involved an exercise of the motion judge’s discretion, which is entitled to deference from this court. The appellant has not shown any palpable and overriding error in the motion judge’s decision.
25I would dismiss the appeal. I would award the respondent his costs of the appeal in the agreed amount of $8,300, inclusive of disbursements and HST.
Released: March 4, 2025 “M.T.”
“I.V.B. Nordheimer J.A.”
“I agree. M. Tulloch C.J.O.”
“I agree. David M. Paciocco J.A.”
