Derenzis v. Ontario et al., 2021 ONSC 5355

CITATION: Derenzis v. Ontario et al., 2021 ONSC 5355

DIVISIONAL COURT FILE NO.: 078/21

DATE: 20210804

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DERENZIS v. ONTARIO et al.

BEFORE: D.L. Corbett J.

COUNSEL: Arthur R. Camporese, for the Appellant Gore Mutual Assurance Co.

Joseph Campisi Jr. and Peter Murray, for the Respondent Plaintiffs

HEARD: In Writing, In Chambers

ENDORSEMENT

[1] This is an appeal from the decision of Fowler Byrne J. dismissing a request to dismiss the action as against the defendant Gore Mutual Assurance Co. pursuant to R.2.1. Leave to appeal was granted by decision of the Divisional Court on April 29, 2021 (2021 ONSC 3164, per D.L. Corbett, Penny and Favreau JJ.). On consent of the parties and at the direction of the Associate Chief Justice dated June 30, 2021, this appeal comes to me as a single judge of the Divisional Court pursuant to s.21(2)(b) of the Courts of Justice Act, given that it arises over the summer when it is not possible to place the matter before a panel of this court in a timely way and the appeal is straightforward and uncontested by the respondent plaintiffs.

[2] The respondent plaintiffs contested the motion for leave to appeal but once leave was granted they did not contest the appeal itself. This was a reasonable position: there was an argument that the proposed appeal did not give rise to an issue of importance meriting intervention by the Divisional Court. Once leave was granted, it is evident that there is no principled basis on which to contest the appeal itself.

[3] On December 20, 2019, Gore Mutual wrote to the court requesting that the action be dismissed as against it pursuant to R.2.1.01. The request was not dealt with promptly, and Gore Mutual followed up with the court office on April 20, 2020 and again on August 31, 2020.

[4] On October 15, 2020, the motion judge directed the Registrar to give notice to the plaintiffs pursuant to R.2.1.01, as had been requested by Gore Mutual. The plaintiffs provided submissions in response to the Registrar’s notice, and on November 9, 2020, the motions judge directed the Registrar to provide a copy of the plaintiffs’ submissions to Gore Mutual and directed that Gore Mutual “shall have 10 days from receipt of the Plaintiffs’ submissions to respond, in accordance with subrule 2.1.01(3)5.”

[5] The Registrar provided a copy of the motions judge’s November 9, 2020 endorsement to counsel for Gore Mutual on November 9^th^ but neglected to attach a copy of the plaintiffs’ submissions. Counsel for Gore Mutual contacted the Registrar about the missing submissions, and those submissions were forwarded to counsel for Gore Mutual on November 16, 2020. Gore Mutual provided responding submissions on November 26, 2020, the deadline set by the motions judge in accordance with subrule 2.1.01(3)5.

[6] The motions judge released her endorsement on the R.2.1.01 issue on January 4, 2021. She dismissed Gore Mutual’s request for dismissal, and in so doing stated:

“No responding submissions were received from Gore as permitted by r.2.1(3)5 …”

and

she only reviewed the plaintiffs’ submissions “having received none from the Defendants.”

[7] The endorsement of the motions judge was released to Gore Mutual by regular mail and was received by counsel on January 14, 2021.

[8] Upon receipt of the motions judge’s decision, counsel for Gore Mutual wrote to the court, providing proof of service and filing of Gore Mutual’s submissions on November 26, 2020, and requesting that the issues be reconsidered in light of those submissions.

[9] The motions judge declined to do this. By endorsement dated January 21, 2021, the motions judge stated that Gore Mutual’s submissions “were not brought to my attention.” She went on to decide that, notwithstanding that she had not considered Gore Mutual’s submissions, “[m]y decision has been released. If either party is not satisfied with the result, they can pursue their remedies pursuant to the Rules.”

Findings

[10] Gore Mutual requested a dismissal order pursuant to R.2.1.01. The motions judge initiated the R.2.1.01 process. However, no doubt through administrative inadvertence, the motions judge was not provided with Gore Mutual’s submissions at the time that the R.2.1.01 materials were sent to her for decision. This is the sort of administrative misadventure that can arise in any courthouse at any time: mistakes will be made. The question, on this appeal, is what should be done when a mistake like this happens.

[11] In my view the motions judge had two reasonable options available to her in these circumstances. She could have set aside her decision and directed that the issue be decided by another judge on the basis of all the materials filed in respect to the R.2.1.01 issue. Or she could have set aside her own decision and reconsidered the matter herself, anew, if she concluded that she could give the matter fair and impartial consideration in all the circumstances. It was not reasonable for the motions judge to require the parties to appeal, or to bring a formal motion to set aside the decision, when it was clear that, as a result of an error by the court, the requesting party had not been accorded basic procedural fairness by having its submissions considered.

[12] The court appreciates that the court receives a great many unmeritorious requests for reconsideration, and a great many inappropriate submissions that there has been some unfairness in the process. In most cases, it is appropriate to direct that the matter has been decided, the court is functus officio, and an aggrieved party is limited to their appeal rights. Where it is clear there has been a failure of basic fairness, because of a mistake by the court, as is the case here, it is incumbent on a motions judge to promote an efficient and fair solution to the problem.

[13] I appreciate that the motions judge’s endorsement could encompass a requirement that Gore Mutual bring a formal motion to vary or set aside the R.2.1.01 decision. Such a requirement – putting the parties to needless expense and delay – was neither necessary nor appropriate given all the circumstances.

[14] The order of the motions judge is set aside and the R.2.1.01 issue is remitted for an expedited hearing before a different motions judge in Brampton. As explained to the parties during a case management teleconference, the court does not consider this an appropriate case for costs.

___________________________ D.L. Corbett J.

Released: August 4, 2021