CITATION: Laramee v. Khamis, 2022 ONSC 2144
DIVISIONAL COURT FILE NO.: 013/22 DATE: 20220406
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Matheson JJ.
BETWEEN:
CLAUDE LARAMEE
Plaintiff (Respondent on Appeal)
– and –
MOHAMED MOHAMED KHAMIS and SUMAYA MOHAMED
Defendants
- and -
CERTAS HOME AND AUTO INSURANCE COMPANY (Pursuant to Section 258(14) of the Insurance Act)
Linda M. O'Brien, for the Statutory Third Party (Appellant)
Statutory Third Party (Appellant)
HEARD at Toronto (by videoconference): April 6, 2022
Swinton J. (Orally)
[1] The appellant Certas Home and Auto Insurance Company appeals with leave from an order of J. Ramsay J. dated December 23, 2021. While the motions judge granted the relief sought by the appellant allowing it to withdraw its Statement of Defence as Statutory Third Party and granted leave to file a new Statement of Defence on behalf of the defendants, he refused the request for leave to serve and file a jury notice on behalf of the defendants, notwithstanding that the plaintiff consented to this relief. In his endorsement, the motions judge stated that it was too late to file a jury notice, given the backlog in the courts due to the pandemic.
[2] While the court always retains the discretion to control its process, the motions judge erred in law, because he did not articulate the test he was applying, and he gave no consideration to the overall context in which the request for a jury notice was made.
[3] This action is one of four actions that have been ordered tried together or immediately one after the other. Jury notices have been filed in two of those actions, although this was not brought to the attention of the motions judge.
[4] As it transpires, the appellant, as Statutory Third Party, had filed a jury notice in this action on January 17, 2020. The plaintiff consented to the relief requested in the motion, including the filing of the jury notice.
[5] Finally, the motions judge failed to consider whether the filing of a jury notice would cause delay. There is no evidence that delay would occur. The matter has not yet been set down for trial. There were jury notices in the companion actions, although this had not been brought to the motions judge’s attention.
[6] Given the failure to apply appropriate principles and the failure to consider the overall context, the appeal is allowed, and paragraph 5 of the order is set aside. This Court orders that leave is granted to the appellant to file a jury notice on behalf of the defendants within ten days.
[7] There will be no order as to costs.
Swinton J.
I agree
Lederer J.
I agree
Matheson J.
Date of Oral Reasons for Judgment: April 6, 2022
Date of Written Release: April 7, 2022
CITATION: Laramee v. Khamis, 2022 ONSC 2144
DIVISIONAL COURT FILE NO.: 013/22 DATE: 20220406
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Lederer and Matheson JJ.
BETWEEN:
CLAUDE LARAMEE
Plaintiff (Respondent on Appeal)
– and –
MOHAMED MOHAMED KHAMIS and SUMAYA MOHAMED
Defendants
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY (Pursuant to Section 258(14) of the Insurance Act)
Statutory Third Party (Appellant)
ORAL REASONS FOR JUDGMENT
Swinton J.
Date of Oral Reasons for Judgment: April 6, 2022
Date of Written Release: April 7, 2022