COURT FILE NO.: 366/04
DATE: 20041126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NATHANIEL THOMAS, a minor by his Litigation Guardian, MARCUS THOMAS, MARCUS THOMAS personally and CAROLYNN THOMAS
Plaintiffs
(Respondents)
- and -
HARRIET GRAY and WAWANESA MUTUAL INSURANCE COMPANY
Defendants
(Harriet Gray, Appellant)
Emma Holland, for the Plaintiffs
Hershel J. Sahian, for the Defendant, Harriet Gray
HEARD: November 26, 2004
GROUND J.: (Orally)
[1] Master Albert appears to have based her dismissal of the motion to issue third party claims on the delay by the defendants in bringing the motion to issue the third party claim, being eighteen month period from the date that the defendants became aware of the third parties and the date that the motion was heard. It appears to me that at least some part of that eighteen month period was the delay in getting the motion heard.
[2] Master Albert then concludes as follows:
"The Court notes that the plaintiff did not oppose the motion. However, it is for the party seeking leave to satisfy the Court that there would be no prejudice to the plaintiff and that burden has not been met."
[3] I have some difficulty with this conclusion. I would have thought that a plaintiff opposing the motion would have to establish prejudice and that the onus is not on the defendant to establish no prejudice to the plaintiff.
[4] In the case at bar, the plaintiff was aware of the eighteen month delay at the time the motion was heard and did not oppose the motion. It strikes me as rather odd that the motion is hotly opposed today based on the same eighteen month delay being so prejudicial to the plaintiff that the third party claim should not be allowed to proceed. More importantly, I am not satisfied that the delay in bringing the motion or the possible delay in the trial date if the motion is granted, is the type of delay which the courts have found to be so prejudicial to the plaintiff that leave to issue third party proceedings should be denied. It appears to me that the delay in this case will result in some inconvenience and some additional work and that, to the extent that that is somewhat prejudicial to the plaintiff, it could be compensated for in costs.
[5] It also appears to me that the issue which will arise in the third party action is contributory negligence. This is not a complex issue and should involve rather simple pleadings, minimal oral discoveries and probably no documentary discovery. I am not satisfied that this should necessarily result in a postponement of the May 23, 2005 trial date if a tight timetable is established toward having the third party claim proceed so that all issues can be resolved in one proceeding with one trial and avoid a multiplicity of proceedings and to avoid the additional time and expense of a second proceeding. I would direct counsel to use their best efforts to establish such a timetable in conjunction with counsel for the third parties.
[6] The Order of Master Albert is set aside and an Order will issue that the defendant, Harriet Gray be granted leave to issue a third party claim naming Ryan Sullivan, Matt Todish, Matt Hamilton and John Doe as defendants in the third party claim.
[7] Costs to the defendant in the amount of $750.00, all inclusive, payable within 30 days.
___________________________
GROUND J.
Date of Reasons for Judgment: November 26, 2004
Date of Release: December 2, 2004
COURT FILE NO.: 366/04
DATE: 20041126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NATHANIEL THOMAS, a minor by his Litigation Guardian, MARCUS THOMAS, MARCUS THOMAS personally and CAROLYNN THOMAS
Plaintiffs
- and -
HARRIET GRAY and WAWANESA MUTUAL INSURANCE COMPANY
Defendants
ORAL REASONS FOR JUDGMENT
GROUND J.
Date of Reasons for Judgment: November 26, 2004
Date of Release: December 2, 2004