ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CHRISTOPHER ZEPPA and TRIQUEST HOLDINGS INC.
Plaintiffs
(Appellants)
- and -
ERNEST ELIAS JR. and THE ELIAS GROUP INC.
Defendants
(Respondents)
Barry J. Goldman, for the Plaintiffs (Appellants)
Lori Marzinotto, for the Defendants (Respondents)
HEARD at Toronto: May 1, 2008
kiteley J.: (Orally)
1The trial of this action, anticipated to be about twelve days, and therefore on the long trial’s list, was to start on Friday, May 25, 2007. Counsel for the plaintiffs made an oral motion to amend the Statement of Claim at the opening of trial. Because it was a trial, I have a transcript of the submissions and of the ruling.
2The plaintiff had earlier brought a motion to amend in 2000, that was not pursued at the time. In that motion, the possibility of changing the name of the corporate defendant was raised but that was the only point of the amendment then. On Monday of the week of the trial, the possibility of an amendment of the Statement of Claim had been raised but the proposed amended pleading arrived only on the eve of trial. It contained more than just changing the name of the corporate defendant.
3During submissions by counsel for the plaintiffs proposing the amendment, counsel referred to facts, some of which were contested; for example, whether the amendments were a surprise or not to defence counsel and the defendant. In addition, there was some issue whether the amendments constituted a cause of action; for example, the amendment proposed damages for injury to reputation and alienation of affection, the latter of which, as was pointed out by Wilkins J., no longer exists.
4It wasn’t simply a question of applying the mandatory Rule 26 of which Wilkins J. was well aware according to the transcript. It was more complicated because there were issues as to the viability of the pleading against the existing defendant and against the defendant corporation as named in the proposed amendment.
5Wilkins J. heard lengthy submissions. He afforded the plaintiffs a recess to give counsel further instructions. Plaintiffs remained committed to the requested amendment. At page 45 of the transcript, Wilkins J. used a venerable legal term to describe the situation as “a complete mess”. That conclusion led him to make an order that is unique, namely, that a full motion to amend the Statement of Claim must be heard by a Master with the parties having the right to present proper evidence, make submissions, file material, facta and conduct cross-examinations if advised, that the action was struck from the list, not to be returned without leave of a Superior Court Judge who was satisfied that the action was ready for trial, that the defendants recover substantial indemnity costs thrown away, costs of court preparation and costs of the motion and that the plaintiffs pay the defendant costs fixed at $25,000 for court preparation and costs thrown away, $7,500 costs of the motion. Costs of the proposed amendments were left to the Master.
6The costs that were fixed by Wilkins J. were payable before the motion to amend the Statement of Claim could be heard before the Master.
7In this motion for leave to appeal, counsel relies on 62.02(4)(a) and (b). The conflicting decision is said to be Moyal v. Hawa, [2004] O. J. No. 3281 (C.J.). Under 62.02(4)(b), the good reasons to doubt the correctness of the decision is alleged to be the conclusion by Wilkins J. that he was adding a party, that the amendments were substantial and substantive, that the trial judge ought not to have directed that the motion be heard on a full record by the Master while at the same time imposing substantial costs, and that the costs were excessive and the order was made without a costs outline.
8I am not persuaded that the decision of Moyal v. Hawa is in conflict. Nor am I persuaded that there is good reason to doubt the correctness of the decision. Wilkins J. was confronted with an unusual situation. It cried out for an unusual solution. The costs may have been significant but his decision as to costs attracts substantial deference.
9Even if I had been satisfied of conflicting decisions or good reason to doubt correctness, I would not have granted leave on the basis that I am not persuaded that it would be desirable to grant leave or that this decision attracts matters of such importance that leave ought to be granted. These circumstances are truly unique to these litigants.
10The motion for leave to appeal is therefore dismissed.
11I endorse the Motion Record: “Motion for leave to appeal is dismissed. The respondent is entitled to partial indemnity costs which I fix at $4,500 including fees, disbursements and GST. Counsel for the respondents asked for an order pursuant to Rule 57.03 that the costs be paid within 30 days. Given the unique order as to timing of costs made by Wilkins J. and the outcome of this motion, this is a case where the costs ought to be paid in a timeframe which allows the parties to assess their positions in the litigation. Accordingly, plaintiffs shall pay the costs ordered by November 3, 2008, without interest before November 3, 2008, but with the usual terms of interest after November 3, 2008, pursuant to the Courts of Justice Act.”
KITELEY J.
Date of Reasons for Judgment: May 1, 2008
Date of Release: May 6, 2008
COURT FILE NO.: 521/07
DATE: 20080501
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CHRISTOPHER ZEPPA and TRIQUEST HOLDINGS INC.
Plaintiffs
(Appellants)
- and -
ERNEST ELIAS JR. and THE ELIAS GROUP INC.
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: May 1, 2008
Date of Release: May 6, 2008