CITATION: APA Holdings Inc. v. Duscio et al., 2017 ONSC 968
DIVISIONAL COURT FILE NO.: DC 16-749 DATE: 2017-02-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
APA HOLDINGS INC., operating as FILMAR CUSTOM HOMES
Plaintiff
(Appellant)
– and –
ANTONIO DUSCIO, also known as TONY DUSCIO and LEANNE DUSCIO
Defendants
(Respondents)
Michael A.van Bodegom and Jeramie J.A. Gallichan, for the Plaintiff (Appellant)
Ryan Wozniak, for the Defendants (Respondent)
HEARD at Hamilton: February 8, 2017
STEWART J. (Orally)
[1] This is an appeal from the order of Justice G.A. Campbell, dated September 8th, 2016, which dismissed a motion for an order restoring this construction lien action to the trial list and allowing the Appellant to deliver a defence to the Respondent’s counterclaim in the action.
[2] At the outset of the hearing the Panel, for reasons given orally by Sachs J., granted the Appellant’s motion to adduce fresh evidence on this appeal. Accordingly, we have the benefit of the sworn evidence of Sasa Filipovic, the president of the Appellant corporation, which was not before the motion judge when he heard and disposed of the motion. As a result, although a discretionary decision such as the one under appeal is normally entitled to deference, we may approach the issue anew in light of the fresh evidence filed.
[3] One of the issues raised by the parties on this appeal is the correct test to apply to whether or not this action should be restored to the trial list pursuant to Rule 48.11. The Appellant submits that the “ready for trial” test set out in Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (at para. 42) is the applicable test. Under that test, the Appellant argues that the action is ready for trial and should be restored to the trial list subject only to any possible directions or timetable requirements.
[4] The Respondents submit that the correct test to apply is that set out in Nissar v. Toronto Transit Commission, 2013 ONCA 361 (at para. 31). Under that two-part test, the moving party bears the burden of demonstrating:
(1) that there is an acceptable explanation for the delay; and
(2) that the responding party would suffer no non-compensable prejudice should the action be allowed to proceed.
The Respondents argue that the Appellant’s evidence, including that contained in the fresh evidence, is not of sufficient particularity or credibility to meet that test.
[5] In our view, it is unnecessary in this case for us to decide which test applies. We are satisfied by the evidence before us that the Appellant can succeed on either test. The action has progressed beyond the exchange of pleadings to include full production by way of exchange of affidavits of documents, examinations for discovery, and compliance with all undertakings given. We observe that the action is a comparatively straightforward one arising out of construction allegedly done of a custom home for the Respondents and that, although there will be some oral evidence required at trial, much of the evidence will be in the form of documents. The assertion by Mr. Filipovic in his affidavit that the action is ready for trial stands uncontradicted by either evidence or oral submissions. Consequently, the “ready for trial” test in Carioca’s has been met.
[6] If the Nissar test is applicable, the evidence before us demonstrates that the Appellant has provided an acceptable explanation for the admittedly lengthy delay in bringing this matter to trial. In particular, the uncontradicted evidence of Mr. Filipovic was that the parties had agreed to address their resources and energies to pursuing another action between them or closely related parties. That “companion action” went to trial and was not finally resolved until April 2014. After this occurred, counsel for the Appellant followed up on obtaining compliance by the Respondents with their outstanding undertakings given on discovery in this action. A motion compelling compliance had to be brought and the undertakings were not provided until December 20th, 2015. This was not the first time where the actions of the Respondents contributed to delay. Nearly a year of the delay issue can be attributed to a motion for security for costs that the Respondents brought which was ultimately unsuccessful. We note as well that throughout this time, the Respondents did not complain about delay, despite the fact they had advanced a counterclaim in the action.
[7] Following provision of the undertakings, counsel for the Appellant sought the consent of the Respondents to an order restoring this action to the trial list. When such consent was not forthcoming, a motion was brought and heard by the motion judge.
[8] In view of this procedural history, the agreement of the parties, and the conduct of the Respondents in contributing to the delay, the first branch of the Nissar test has been met.
[9] On the second branch of the test there is no evidence before us, nor did the Respondents seek to file any such evidence on this hearing, of any non-compensable prejudice to the Respondents. More importantly, the uncontradicted evidence of Mr. Filipovic demonstrates that there is no prejudice to the Respondents if the action is allowed to proceed.
[10] As a result, the second branch of the Nissar test has also been met by the Appellant in this case.
[11] Therefore, we would allow the appeal and set aside the order of the motion judge.
[12] One aspect of that order denied the Appellant the right to file a statement of defence to the counterclaim on the basis that doing so would delay the trial of the main action. The uncontradicted evidence before us is that this is not the case.
[13] For these reasons, we order that the Appellant is permitted to serve and file a statement of defence to the counterclaim and to serve and file an amended trial record within 10 days of today’s date. We direct that once this has been done, the action be restored to the trial list and placed on an appropriate assignment court list.
H. Sachs J.:
[14] For reasons given orally by Stewart J., this appeal is allowed and the order of the motion judge is set aside. An order will go permitting the Appellant to serve and file a defence to the counterclaim and an amended trial record within 10 days from today’s date. Following same, the action will be restored to the trial list and placed on the appropriate assignment court list.
Costs
[15] As the successful party on the appeal, the Appellant is entitled to its costs of this appeal and the motion to adduce fresh evidence which we fix in the amount of $10,000.00 all-inclusive. We would not disturb the award of costs that the motion judge made on the motion below.
___________________________ Stewart J.
I agree
Sachs J.
I agree
Spies J.
Date of Reasons for Judgment: February 8, 2017
Date of Release: February 10, 2017
CITATION: APA Holdings Inc. v. Duscio et al., 2017 ONSC 968
DIVISIONAL COURT FILE NO.: DC 16-749 DATE: 2017-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
APA HOLDINGS INC., operating as FILMAR CUSTOM HOMES
Plaintiff
(Appellant)
– and –
ANTONIO DUSCIO, also known as TONY DUSCIO and LEANNE DUSCIO
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
Stewart J.
Date of Reasons for Judgment: February 8, 2017
Date of Release: February 10, 2017