Court File and Parties

Court of Appeal for Ontario Date: 20220525 Docket: M53432 (C68319)

Before: Huscroft J.A. (Motion Judge)

Between: Bedros (Peter) Avedian, Claudio Petti and Mario D’orazio Plaintiffs (Appellants/Moving Parties)

And: Enbridge Gas Distribution Inc. operating as Enbridge Gas Distribution, Enbridge Solutions Inc. operating as Enbridge Energy Solutions, Enbridge Inc., Lakeside Performance Gas Services Ltd. operating as Lakeside Gas Services Defendants (Respondents/Responding Parties)

And: Alpha Delta Heating Contractor Inc. and Aubrey Leonard Dey Third Parties (Respondents/Responding Parties)

And: TQB Heating and Air Conditioning, Brentol Bishop a.k.a. Brent Bishop, Enbridge Solutions Inc. operating as Enbridge Energy Solutions and Enbridge Inc. Fourth Parties (Respondents/Responding Parties)

Counsel: Christine Carter, for the appellants Cynthia Sefton, for the respondent Enbridge Inc. James G. Norton for the respondents Enbridge Gas Distribution and Lakeside Performance Gas Services C. Kirk Boggs and Jennifer O’Dell, for the respondents Alpha Delta Heating Contractor Inc. and Aubrey Leonard Dey Chris Morrison, for the respondents TQB Heating and Air Conditioning and Brentol Bishop a.k.a. Brent Bishop

Heard: May 20, 2022 by video conference

Reasons for Decision

[1] In an order dated May 31, 2021, this court set aside an order for partial summary judgment and ordered that the appellants’ action “be restored to the trial list in Toronto on an expedited basis”. The moving parties say that the action has not been restored to the list. They seek an order requiring the Regional Senior Judge to set a four-week trial date to commence no later than June 13, 2022.

[2] The responding parties say that this court is functus and has no jurisdiction to entertain the motion; the court’s order has not been breached; a motion judge lacks jurisdiction to hear a motion for contempt; the elements of contempt have not been made out; and r. 20.05(2) (n) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is inapplicable.

[3] The moving parties have not sought a contempt order, so the responding parties’ contempt arguments need not be addressed. The sole issue that needs to be addressed is whether a motion judge of this court can, and should, make an order requiring a particular trial date to be set.

[4] The jurisdiction of this court is logically prior to consideration of the substantive request raised by the moving parties. However, assuming for purposes of the motion that a single judge of this court has jurisdiction to entertain this motion and to grant the requested relief, the motion should not be granted. I am not satisfied that this court’s order has been breached, nor in my view is it appropriate to interfere in the case management of this matter.

[5] First, an email message from the trial coordinator dated May 10, 2022 states: “This matter has not been struck off the list, but no future dates have been scheduled at this time.”

[6] Second, the matter was referred to D. Wilson J. by the Regional Senior Judge and she has been managing the case since this court’s decision. Justice Wilson has ruled on several motions since this court’s decision and a decision on a further motion is pending. The decisions on these matters must be determined before the trial dates can be set, as Wilson J. explains in her August 31, 2021 order. In that order, she states clearly:

I understand the Plaintiffs are anxious to proceed to trial; however, I am not going to fix a trial date until the trial issues are clarified, the pleadings issues have been addressed and I am satisfied about the amount of time required for trial.

[7] Justice Wilson has made several orders about the conduct of the matter, requiring, among other things, the parties to provide draft agreed statements of fact. On October 20, 2021, her endorsement indicated that she declined to set a ten-week trial at the moving parties’ request, believing that the case was not ready and that ten weeks were not required. She indicated that she agreed to preside as trial judge at counsel’s request and would not be conducting any pretrial. Justice Wilson noted that the moving parties sought to increase the damages claimed from $7.5 million to $57.5 million, and she established dates for the final version of the amended statement of claim and amended statements of defence to be filed.

[8] On October 18, 2021, Wilson J. asked the parties to confirm that they wished for her to conduct trial management and ultimately to be the trial judge. The moving parties responded by reiterating their concern that the trial not be delayed. They requested “the next available trial date once the trial management process is complete” but confirmed their agreement so long as it did not delay the trial or preclude the possibility of an earlier trial with another trial judge. Justice Wilson responded:

I confirm I will continue to conduct trial management with a view to being the trial judge if the matter does not settle. I am mindful of the wish of the Plaintiffs to move this matter to trial as quickly as possible and to that end, I will continue with trial management to ensure it is ready for trial with an appropriate amount of trial time set aside. If for some reason I cannot preside over the trial of this action once it is ready, in my capacity as the team lead judge for civil trials, I will assign another judge to hear the trial to ensure there is no delay as a result of my involvement.

[9] On December 7, 2021, Wilson J. established a timetable for hearing the moving parties’ motion to amend their statement of claim and the motion was argued on March 4, 2022. A decision on this motion is pending.

[10] I appreciate that the matter has not proceeded as expeditiously as the moving parties want. But there can be no doubt that Wilson J. is aware of the delay concern and is working to resolve the matter as soon as possible. This court must respect the normal processes in the trial division and the trial judge’s authority to manage the case. Justice Wilson is plainly of the view that the matter is not ready to be set down for trial. There is no basis for a motion judge in this court to second guess the trial judge’s case management decisions.

[11] In summary, assuming without deciding that a motion judge in this court has the jurisdiction to make the orders sought by the moving parties, I decline to do so in the circumstances of this case.

[12] The motion is dismissed.

[13] The respondents seek costs on a substantial indemnity basis. I do not think that this is an appropriate case for increased costs. The appellants shall pay costs fixed in the amount of $6,500, all inclusive.

“Grant Huscroft J.A.”