Citation: Loiselle v. Violette, 2018 ONSC 6688

DIVISIONAL COURT FILE NO.: DC 270/18

DATE: 20181107

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J.S.C., THORBURN, AND MYERS JJ.

BETWEEN:

ROLAND LOISELLE and FRANK PIQUETTE Plaintiffs/Respondents

– and –

DIANE A. VIOLETTE and BEECH LANE HOLDINGS (SUDBURY) INC. Defendants/Applicants

No one appearing for the Respondents

Kenneth J. Peacocke, lawyer for the Applicants

READ at Toronto: October 31, 2018

THE COURT

[1] The applicants are the defendants in this lawsuit. They seek leave to appeal to the Divisional Court from the interlocutory order of Gordon RSJ dated April 17, 2018 dismissing the defendants’ motion to dismiss this 16 year old action for delay.

[2] The court is resolving this motion without receiving a factum from the responding parties/plaintiffs. Their factum was due 25 days after service of the applicants’ factum. The applicants’ factum was filed with the court on June 1, 2018. The respondents’ factum was due more than four months ago.

[3] There appears to be some confusion surrounding the specific rules in the Rules of Civil Procedure, RRO 1990, Reg. 194 that apply to motions for leave to appeal to the Divisional Court from interlocutory orders made by judges of the Superior Court. As a result, responding factums are often delivered late. The Rules do not provide a sanction expressly for this issue. But the late filing of a responding factum can delay the scheduling of the written hearing of the motion for leave to appeal. This requires clarification.

Leave to Appeal to the Divisional Court from an Interlocutory Order of a Judge of the Superior Court

Rule 61.03.1 Applies to a Motion for Leave to Appeal to the Divisional Court from an Interlocutory Order of a Judge of the Superior Court

[4] Clause 19 (1)(b) of the Courts of Justice Act, RSO 1990, c C.43, provides for an appeal to the Divisional Court from an interlocutory order of a judge of the Superior Court “with leave as provided in the rules of court.”

[5] Rule 62.02 sets out the process for bringing a motion for leave to appeal from an interlocutory order of a judge as follows:

MOTION FOR LEAVE TO APPEAL

Leave to Appeal from Interlocutory Order of a Judge

62.02 (1) Leave to appeal to the Divisional Court under clause 19 (1) (b) of the Courts of Justice Act shall be obtained from a panel of that court in accordance with this rule.

Motion in Writing

(2) The motion for leave to appeal shall be heard in writing, without the attendance of parties or lawyers.

Procedures

(5) Subrules 61.03.1 (4) to (19) (motion for leave to appeal to Court of Appeal) apply, with necessary modifications, to the motion for leave to appeal and, for the purpose, a reference in those subrules to the Court of Appeal shall be read as a reference to the Divisional Court.

[6] The rules governing motions for leave to appeal to the Divisional Court from an interlocutory order of a judge are found in Rule 61.03.1. This is correct despite the fact that Rule 61.03.1 is entitled “MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL.”

[7] Moreover, Rule 61.03, that is entitled “MOTION FOR LEAVE TO APPEAL TO THE DIVISIONAL COURT,” does not apply to a motion for leave to appeal in relation to an interlocutory order of a judge of the Superior Court. This is made clear by Rule 61.01 that provides that Rules 61.02 to 61.16 apply to all appeals to an appellate court “except as provided in …rule 62.02.” That is, while Rule 61.03 deals with appeals to the Divisional Court from certain tribunals, final orders of a master, a case management master, or a judge (under $25,000) under s. 19 of the Courts of Justice Act, Rule 62.02 to takes precedence so that Rule 61.03.1 applies to motions for leave to appeal to the Divisional Court from an interlocutory order of a judge of the Superior Court.

The Respondent’s Factum and Materials are due 25 Days after the Applicant Perfects

[8] The timing of the perfection and written hearing of a motion for leave to appeal from an interlocutory decision of a judge is dealt with in Rules 61.03.1 (3) to (14). The applicant must serve its notice of motion for leave to appeal within 15 days of the decision under appeal (unless a statute provides otherwise). The notice of motion must be filed with the court within five days of being served. The applicant must perfect its motion for leave to appeal by filing its record and factum within 30 days of filing its notice of motion for leave to appeal. Then, Rule 61.03.1 (10) provides:

(10) The responding party shall file three printed copies of the factum, and of the motion record, if any, and an electronic version of the factum, with proof of service, within 25 days after service of the moving party’s motion record and other documents. [Emphasis added.]

[9] The rule is clear, precise, and mandatory. The deadline for filing the respondent’s factum is not 15 days after perfection (as it is for motions for leave to appeal under Rule 61.03 (2)) or four days before the hearing (as it is under Rule 37.10 (3) for motions in the Superior Court). On a motion for leave to appeal to the Divisional Court from an interlocutory order of a judge of the Superior Court, the respondent’s factum and other material is required to be filed with the court by 25 days after service of the applicant’s motion record, factum, and other material.

Scheduling the Written Hearing

[10] Rules 61.03.1 (11) to (13) allow an applicant to file a reply factum to respond to any issue raised by the respondent on which the applicant has not previously taken a position. The reply factum, if one is used, is to be filed within 10 days of service of the respondent’s factum.

[11] Rule 61.03.1 (14) then provides:

Date for Hearing

(14) The Registrar shall fix a date for the hearing of the motion, which shall not be before the earlier of the filing of the moving party’s reply factum, if any, and the expiry of the time for filing the moving party’s reply factum.

[12] Under this rule, the registrar can set the date for the written hearing at any time as long as the date chosen is after the applicant’s reply factum is filed or the time for the applicant to file a reply factum has expired. There is no requirement that the registrar’s office to wait for the reply factum to be filed before setting the date for the written hearing. However if the court sets a date for a hearing before the responding party’s factum has been filed, the respondent can deliver its factum so late and near to the date of the hearing as to deprive the applicant of its ten days to deliver a reply factum or require the adjournment of the appeal to allow the applicant time to do so. Neither is a practical, affordable, or proportional outcome. One could protect the applicant’s right to reply by delaying setting the date for the written hearing until the respondent’s factum has been filed. However, since there is no sanction applicable to respondents who are late with their factums, this approach exacerbates delay.

The Court may proceed without Responding Material in Appropriate Cases

[13] In order to protect the parties’ rights to an efficient process that minimizes delay and expense, the court will presumptively enforce the time limit for filing the respondent’s factum set out in Rule 61.03.1 (10). Subject always to the discretion of the panel reading a motion for leave to appeal, motions will be scheduled in the ordinary course based on the times set out in the Rules regardless of whether the respondent has actually delivered its factum on time as required. If, despite the provision of the Rules and despite these reasons, a respondent does not file its factum when required and its delay risks prejudicing the applicant’s rights, the court will deal with situation with efficiency, affordability, and proportionality at the forefront.

[14] In this case, the respondents’ factum is at least four months overdue. The court was unsuccessful in attempts to reach counsel who acted for the responding parties below. The panel reviewed the applicants’ motion material and determined to proceed without hearing from the respondents.

Analysis of Leave to Appeal

[15] The applicants submit that the decision from which they seek leave to appeal conflicts with decisions that note differences between the tests applicable to dismissal for delay under Rule 24.01 (1) and Rule 48.14 (3). We disagree. The judge set out the applicable law and found the presumption of prejudice had been rebutted. He put the burden for rebutting the presumption squarely on the plaintiffs as it would be under either rule.

[16] The applicants submit that the judge erred in assessing prejudice by ignoring that the case is one in which witness credibility may play a significant role. On that basis, they submit that the plaintiffs’ efforts to protect witness’s testimony and the integrity of the documentary record were insufficient to rebut the prejudice caused by memories fading with time. Again, we disagree. The judge applied the correct legal standard. The balancing that he performed was a matter of discretion to which deference is due. Sickinger v Krek, 2011 ONCA 459 at para. 31.

[17] The applicants had to satisfy one or the other of the foregoing tests to meet the leave to appeal requirements set out in Rule 62.02 (4). They have failed to do so. In any event, we do not see this case as one of importance or in which it is desirable for leave to appeal to be granted as is also required under Rule 62.02 (4). The case law applicable to motions for dismissal for delay is well settled by the Court of Appeal. Langenecker v Sauve, 2011 ONCA 80. The particular exercise of discretion under the established law in this one case does not transcend the interests of the parties.

[18] The motion for leave to appeal is therefore dismissed.

Costs

[19] The respondents were successful in the result. However, as they did not appear, file a factum, or costs submissions, we do not view this as a case for costs.

[20] We note that on the listing for hearing of a motion for leave to appeal, the parties are informed that their costs submissions should be served and filed no later than five days before the hearing. This is the current deadline. However, the better practice is for the applicant to deliver its costs outline with its factum and for the respondent to do likewise. This practice will save costs by requiring the costs submissions to be prepared at the time that counsel are actively engaged in their document preparation. Moreover it avoids the inconvenience of last minute filings and ensures that the court has the costs submissions in case the leave motion is heard sooner than had previously been anticipated as occurred in this case.

[21] If there are offers to settle that are relevant to costs that cannot be disclosed to the court before the motion for leave to appeal is read, counsel should jointly advise the court so that the panel knows not to look for costs submissions at the time that the motion is decided.

Outcome

[22] The appeal is dismissed with no order as to costs.

Marrocco A.C.J.S.C.

Thorburn J.

F.L. Myers J.

Release Date: November 7, 2018

DIVISIONAL COURT FILE NO.: DC 270/18

DATE: 201811**

ROLAND LOISELLE and FRANK PIQUETTE Plaintiffs/Respondents

– and –

DIANE A. VIOLETTE and BEECH LANE HOLDINGS (SUDBURY) INC. Defendants/Applicants

Released: November__, 2018