COURT FILE NO.: CV-10-327-00

DATE: 2012/04/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Douglas Allen, Heather Allen, Nicholas Allen, Christopher Allen, and Michael Allen through his litigation guardian Heather Allen, Plaintiffs

AND

The Corporation of the County of Prince Edward, Defendant

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Bryan Rumble, for the Plaintiffs

Zohar Levy, for the Defendant

HEARD: March 30, 2012

ENDORSEMENT

Procedural Background

[1] This is a case involving an accident where the vehicle driven by one of the plaintiffs left a road and hit a tree. The plaintiffs are suing the defendant county over the conditions of the roadway. On June 28, 2011 trial dates were set commencing September 4, 2012 for three weeks.

[2] Rule 48.04 says “any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion … without leave of the court.” There is no dispute that this rule applies and that the defendant consented to the action being placed on a trial list.

[3] On February 15, 2012 the defendant served a motion returnable on May 18, 2012 (six weeks from today) seeking summary judgment and leave to bring the motion. The plaintiffs then moved to dismiss the summary judgment motion on the basis that the defendant should have brought its motion for leave in advance. The defendant in turn brought a further motion to strike portions of the plaintiffs’ materials and to bring its leave motion forward.

[4] After some discussion it was agreed that the references in the plaintiffs’ materials regarding the pre-trial conference should be struck and that the motion for leave originally scheduled for May 18, 2012 should be heard by me. As such, the plaintiffs withdrew their motion. The summary judgment motion itself was not argued.

[5] I raised the concern that I had read the soon to be expunged materials. Both counsel indicated that they wanted me to determine the motion for leave regardless.

Issue

[6] The sole remaining issue is therefore whether I should grant leave to the defendant to continue its motion for summary judgment given that the matter has already been listed for trial.

Test for Leave

[7] The defendant relied on Tanner v. Clark, [1999] O.J No. 581 (Gen.Div.), for the proposition that there are two tests for granting leave under rule 48.04(1). That case involved a motion to change the venue of the trial. After a review of the cases Wilson J. found that the traditional test requiring a substantial and unexpected change of circumstances was more suited to motions concerning interlocutory matters. For serious matters affecting substantive rights, she held that the court should look at the merits of the relief requested, and whether any prejudice to the party opposing the motion could be compensated for in costs. She concluded that as a change of venue motion is a matter affecting substantive rights, leave could be granted on the ‘merits’ test even if there was no substantial and unexpected change of circumstances. Wilson J. then overturned the decision of the Master, granted leave, and allowed the change in venue.

[8] The plaintiffs relied on the more recent decision of Canadian Gasket & Supply Inc. v. Industrial Gasket & Shim Co., 2009 CarswellOnt 5684 (S.C.). That case involved a motion for partial summary judgment after the matter had been set down for trial. Although the plaintiffs put forward this case to support the proposition that the legal test is still only change in circumstances, A. Pollak J. without specifically referring to Tanner v. Clark considered both the change in circumstances test and the merits of the summary judgment motion. Regarding the latter, she looked at whether the motion for summary judgment might obviate the need for a trial or substantially lessen the time required for trial. Finding no evidence of a change in circumstances and no evidence that the motion for partial summary judgment would be dispositive of the issues or materially shorten the trial, she declined to grant leave.

[9] From these cases I am of the view that I can grant leave if either (1) I find that there has been a substantial and unexpected change in circumstances since the matter has been set down for trial, or (2) I find that (a) there is merit to the relief requested (the summary judgment motion in this case) and (b) any resulting prejudice to the plaintiffs caused by the granting of leave could be compensated for by costs.

[10] As noted in Kernohan v. York (Regional Municipality), 2009 CanLII 9422 (Ont. S.C.), at para. 19:

Granting leave under Rule 48.04 remains a discretionary remedy. The discretion must always be exercised having regard to the general principle set out in rule 1.04, namely that the Rules “shall be construed liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

Change in Circumstances

[11] The defendant suggests that a new report from a second plaintiff’s expert is a substantial and unexpected change in circumstances in this file.

[12] That report was served on the defendant on October 6, 2011 and focuses on the defendant’s liability. The defendant took steps immediately after receiving it to arrange for the summary judgment motion.

[13] It is my view that a change in circumstances must be material to the motion brought. The basis of the summary judgment motion is that the plaintiffs failed to give the defendant notice within 10 days of the accident as required by section 44(10) of the Municipal Act, S.O. 2001, Chapter 25. The new report is about the condition of the roadway.

[14] The defendant argues, however, that the plaintiffs can only avoid the limitation period by demonstrating that they have a reasonable excuse for the delay and by showing that the defendant is not prejudiced by the delay (section 44(12) of the Municipal Act). As the new report relates to the conditions of the accident scene including vegetation, the defendant suggests that it is prejudiced as the vegetation would have changed over the years since the accident. The plaintiffs’ counter-argument is that vegetation has always been a live issue in this action and the new report simply recasts that factor in a slightly different way.

[15] In looking at the reports, I agree with the plaintiffs and do not view the new report served on October 6, 2011 as a ‘substantial and unexpected change in circumstances’ giving rise specifically to a summary judgment motion. I am not prepared to grant leave on that basis.

Merits of the Summary Judgment Motion

[16] Regarding the second test, the first part of it is that I could grant leave if the summary judgment motion had some merit in that it could dispose of all the issues or materially shorten the trial.

[17] The accident happened on December 21, 2006. The plaintiffs did not notify the county within ten days after the occurrence of the injuries. In fact it was only after they received their first expert’s report on August 27, 2008 that they immediately issued the September 3, 2008 statement of claim. They rely on the discoverability rule as their reasonable excuse for the insufficiency of notice, indicating that they had no way of knowing that they had a claim until they received that report. However, in reviewing the sequence of events it appears that the Statement of Claim itself wasn’t actually served on the defendants until December 9, 2008, over three months later. The defendant indicates that this is the first notice it had of the claim, and that does not appear to be disputed. I see nothing in the materials that addresses the reason for the delay between the issuing and serving of the claim.

[18] The plaintiff may have more material to file on the motion for summary judgment itself. However, looking only at the material before me I cannot rule out that the defendant has a case to make that there is no genuine issue for trial. I therefore find that the summary judgment motion has merit.

Prejudice

[19] I turn now to whether granting leave would be prejudicial to the plaintiffs in a way that could not be compensated for by costs, the second part of the second test.

[20] The plaintiffs argue a lack of procedural fairness on two fronts. The main argument is that if the motion is heard appeals could result and they stand to lose the long-standing trial dates that have been in place for nine months. They argue that had the motion been brought before the trial dates were set then any appeals would have already been resolved. I agree that keeping the trial dates we have is a very important consideration. The defendant argues in response that there is no reason why the summary judgment motion would stop the trial. The issues haven’t changed, and the plaintiff was on notice of the limitations issue since the Statement of Defense was delivered on May 29, 2009.

[21] The difficulty in weighing procedural prejudice here is that it is largely speculative. If leave were granted we do not know the outcome of the summary judgment motion or whether an appeal would follow. Barry Munro, a law clerk at the plaintiffs’ law firm, simply states in his affidavit of March 20, 2012 that “should the Summary Judgment Motion proceed on May 18, 2012, it is unlikely that the trial in this matter could proceed on the scheduled dates. As a result the Plaintiff’s (sic) would be prejudiced”. There is really little evidence at this point that the trial dates are actually in jeopardy.

[22] The second point the plaintiffs make regarding procedural fairness, which is set out in their factum, is that proceeding with summary judgment motion would divert the plaintiffs from necessary trial preparations.

[23] The time between the summary judgment motion and the trial is a relevant consideration for me in exercising my discretion, as it was in many of the cases relied on by the parties. Here the summary judgment motion itself is six weeks away. After that motion the parties will have another fifteen weeks to prepare for trial. While I am not unmindful that the summer months are part of this latter block, and not unsympathetic to counsel and parties who might want a more relaxed timetable to prepare, in weighing the considerations in Rule 1.04, I am not inclined to view the summary judgment motion as likely to cause actual prejudice given the stage of these proceedings.

Decision

[24] I therefore grant leave to the defendant to continue with its motion for summary judgment returnable on May 18, 2012. The references made in the plaintiffs’ materials regarding discussions at the pre-trial conference are to be struck. If counsel cannot agree how to deal with these passages prior to the end of April in consultation with the court office, then the plaintiffs’ Motion Record and Factum are to be sealed so that they are not before the judge hearing the summary judgment motion.

[25] Despite the success of the defendant on this motion, the ultimate success or failure will be determined on the hearing for summary judgment. Having said that, I do not want to defer the costs issue to that judge. A complicating factor is that there will likely be overlap between the materials before the court now and those on the summary judgment motion. Given the number of motions and some mixed results regarding process, each party shall bear its own costs for the attendance at this hearing and for the costs of preparation related to the motions regarding leave and the motion to strike. Costs related to material before me, if any, that will be used on the summary judgment motion can be dealt with there.

Mr. Justice Timothy Minnema

Date: April 4, 2012

COURT FILE NO.: CV-10-327-00

DATE: 2012/04/04

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Douglas Allen, Heather Allen, Nicholas Allen, Christopher Allen, and Michael Allen through his litigation guardian Heather Allen, Plaintiffs

AND

The Corporation of the County of Prince Edward, Defendant

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Bryan Rumble, for the Plaintiffs

Zohar Levy, for the Defendant

ENDORSEMENT

Mr. Justice Timothy Minnema

Released: April 4, 2012