Horgan et al. v. Tanktek Environmental Services Ltd. [Indexed as: Horgan v. Tanktek Environmental Services Ltd.]
94 O.R. (3d) 559
Court of Appeal for Ontario,
Simmons, Blair and Juriansz JJ.A.
February 4, 2009
Civil procedure -- Motions -- Motion judge dismissing plaintiffs' motion to add parties because plaintiffs had not filed confirmation form and had not requested leave to bring motion under rule 48.04(1) -- Motion judge granting defendant's motion for partial summary judgment -- Plaintiffs' appeal allowed -- Motion judge's orders set aside on grounds of natural justice and fair procedure -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 48.04(1).
After they had set the action down for trial, and in response to a motion for partial summary judgment, the plaintiffs brought a motion to add party plaintiffs. The motion judge ruled that the motion to add parties could not succeed because the plaintiffs did not file a confirmation form and had not requested leave to bring the motion under rule 48.04(1). The plaintiffs' motion was dismissed and the summary judgment motion was granted. The plaintiffs appealed.
Held, the appeal should be allowed.
The motion judge's orders had to be set aside on grounds of natural justice and fair procedure. If the plaintiff's motion was not before the motion judge because they had not filed a confirmation form, the motion judge could not address the rule 48.04(1) issue or dismiss the motion. In any event, it was not open to the motion judge to dismiss the motion or rule that it could not proceed under rule 48.04(1) without permitting submissions to be made. The summary judgment motion depended on the defendant successfully resisting the motion to add parties.
APPEAL by plaintiffs from orders of Flynn J. of the Superior Court of Justice dated April 18, 2008 dismissing their motion to add parties and granting defendant's motion for partial summary judgment.
Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 37.10.1 [as am.], 48.04(1)
John W. McDonald, for appellants. Jennifer Stirton, for respondent.
[1] Endorsement BY THE COURT: -- The appellants appeal from an order of Flynn J. dismissing their motion to add party plaintiffs. The appellants brought their motion in response to a motion for partial summary judgment by the respondent.
[2] After raising the issues himself, the motion judge held that the appellants' motion to add parties could not proceed because the appellants did not file a confirmation form under rule 37.10.1 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] and [page560] because, although the appellants had set the action down for trial, they had not requested leave to bring their motion under rule 48.04(1). Without inviting or permitting submissions on these issues, the motion judge dismissed the appellants' motion. The motion judge went on to grant the respondent's motion for partial summary judgment, dismissing virtually all of the appellants' claims
[3] In our view, the motion judge's orders must be set aside on grounds of natural justice and fair procedure.
[4] If the appellants' motion was not before the motion judge because the appellants had not filed a confirmation form, the motion judge could not address the rule 48.04(1) issue or dismiss the motion. In any event, it was not open to the motion judge to dismiss the motion or rule that it could not proceed under rule 48.04(1) without permitting submissions to be made.
[5] Success on the partial summary judgment motion depended on the respondent successfully resisting the motion to add parties. Accordingly, that order too must be set aside. Although the respondent argues that the appellants' motion is doomed to failure based on a limitations issue, having regard to what took place in the court below that question does not properly arise on this appeal.
[6] The appeal is therefore allowed and the orders of the motion judge are set aside and the matter is remitted to the court below to be dealt with by a different motion judge.
[7] Costs of the appeal are to the appellants on a partial indemnity scale fixed in the amount of $8,000 inclusive of GST and disbursements. The costs orders made by Flynn J. are set aside and replaced by an order of no costs.
Appeal allowed.