Court File and Parties
CITATION: Gay Company Limited v. Sayers Foods Limited, 2024 ONSC 3226
DIVISIONAL COURT FILE NOS.: 238/24
DATE: 2024-06-05
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
BETWEEN:
GAY COMPANY LIMITED (Respondent in application/Moving Party)
AND:
SAYERS FOODS LIMITED (Applicant/Responding party on the motion)
BEFORE: Leiper J.
COUNSEL: Faren Bogach and James de Melo for Gay Company Limited
Richard MacGregor for Sayers Foods Limited
HEARD: By videoconference June 5, 2024
ENDORSEMENT
[1] The parties attended on the Respondent, Gay Company Limited’s motion to strike portions of an affidavit tendered by the Applicant, Sayers Foods Limited in support of its motion for leave to appeal. The leave motion is scheduled to be heard in writing the week of June 24, 2024. As explained in Sayers’ materials, the affidavit is also intended for use on a subsequent stay motion, if leave is granted.
[2] The underlying decision which Sayers seeks to judicially review involves construction litigation before an Adjudicator who issued a decision on April 5, 2024 which required Sayers to pay approximately $650,000 to the contractor, Gay Company Limited, for its work rebuilding the Sayers’ grocery store in Apsley, Ontario. Given that no transcripts were made of that process, Sayers has served and filed a lengthy affidavit setting out the procedural history and the grounds for its application. Gay’s motion to strike is based on its submission that portions of the affidavit should be struck because of (variously)irrelevance, improper argument, opinion or improper fresh evidence.
[3] Prior to hearing argument and based on my review of the parties’ factums and charts of submissions on the contents of the affidavit, I proposed to counsel that they consider a more efficient way to deal with the motion issues. I advised counsel that having reviewed their material, a lengthy argument on the motion would not ensure the leave to appeal panel has clear, appropriate material before it. As set out in the Sayers’ factum, the typical practice is to have motions to strike heard at the same time as the primary motion: See Guttierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069.
[4] Counsel agreed to this proposal. I provided general feedback on the existing affidavit identifying paragraphs which lacked either context or clarity/connection to the issues on the leave application, paragraphs which blended fact and argument, and in several instances, paragraphs that did not clearly indicate the affiant’s source of information and belief. I did not make any orders as to striking any portion of the existing affidavit. Counsel must apply their own judgment to determine what/how to amend the affidavit in conformity with the law. Any dispute after that process has taken place, will be for the leave panel to determine during its review of the application for leave.
[5] Counsel for the parties then made submissions on a revised timetable for the serving and filing of material on the motion for leave.
[6] Thus, without prejudice to the Gay’s right to make submissions on the amended affidavit to be filed by Sayers, I dismiss the motion, grant leave to Sayers to amend the “ Sayers Affidavit” and make the following additional procedural orders:
The Applicant, Sayers Foods Limited will serve and file an amended affidavit in support of its motion for leave for judicial review by June 10, 2024. Counsel for Gay Company Limited will identify to counsel for Sayers Foods Limited any additional issues with the affidavit on receipt, and prior to the due date for each party to file the factums as set out below.
The Applicant, Sayers Foods Limited will serve and file its factum on the motion for leave by June 14, 2024.
The Respondent Gay Company Limited will serve and file its factum on the motion for leave by June 17, 2024.
If there are further arguments to be made about the content of the amended affidavit filed on the motion for leave, the parties shall address those in their factums and may have an additional 4 pages, if necessary and not including any charts or appendices concerning the content of the affidavit, to assist the leave panel in addressing those issues.
The parties are encouraged to agree as to the costs of the leave motion and of this motion. They shall file and upload that agreement, or alternatively their submissions on costs which are reserved to the leave panel.
A copy of this endorsement is to be uploaded to the Motion for Leave Bundle/Motions Bundle in CaseLines for the information of the leave panel.
Leiper, J.
Date: June 5, 2024