ENDORSEMENT
COURT FILE NO.: 10-47926
DATE: 2012/01/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: VIPUL MODY and MODY MANAGEMENT INC., Plaintiffs
AND
ING INSURNCE COMPANY OF CANADA/COMPAGNIE D’ASSURANCE ING DU CANADA and PCA ADJUSTERS LIMITED and STEAMATIC of OTTAWA-CARLETON, Defendants
BEFORE: Annis J.
COUNSEL:
Michael Van Dusen, Counsel for the Plaintiffs
Randy Ai, Counsel for the Defendant, PCA Adjusters Limited
HEARD: January 24, 2012
ENDORSEMENT
[ 1 ] The defendant, PCA Adjusters Limited ("PCA") seeks an order striking it from the statement of claim.
[ 2 ] It argues that because it was not named as a party in the notice of action, but only added to the style of cause in the statement of claim, the statement of claim is a nullity as against PCA.
[ 3 ] The plaintiffs have filed a cross-motion seeking an order amending the notice of action to conform with the statement of claim. They rely upon rule 2.01 (1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 which declares that a failure to comply with the rules is not in nullity, but only an irregularity which may be corrected by amendment or other corrective measure.
[ 4 ] The co-defendant, Steamatic of Ottawa-Carleton, also not named in the notice of action, has not sought to challenge the statement of claim and has filed a statement of defence.
[ 5 ] The decision to file the statement of claim, which included adding two new defendants not named in the notice of action, was taken by the plaintiffs in full knowledge of the circumstances and after the matter had been drawn to the Registrar's attention. The Registrar permitted the filing of the statement of claim, requiring only that the standard notice provisions in the statement of claim be struck prior to filing.
[ 6 ] It is common ground that had the Registrar refused to allow the statement of claim to be filed, the plaintiffs would have issued the statement of claim as a new action and paid the additional filing fee of $240.
[ 7 ] There is no issue of any prejudice to PCA, inasmuch as the notice of action and statement of claim were served prior to the expiration of the two-year limitation period.
[ 8 ] PCA made a number of submissions, most of which related to strictly applying provisions in the rules governing the drafting and issuing of the plaintiffs’ pleadings. The only submission that I required comment on from the plaintiffs was PCA's argument that the statement of claim was a nullity in respect of the defendants added because they were not named in the notice of action.
[ 9 ] Rule 2.01 (1) appears to continue to perpetuate the distinction between an irregularity and a nullity. It is my view that the distinction between the two concepts may be made by applying rule 1.04 (1) that requires the rules to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."
[ 10 ] Rule 1.04 (1) directs the court to interpret the rules to provide a just determination on the merits. I interpret this to mean that procedural issues may be raised only where the moving party may demonstrate substantial prejudice which would make it unjust to allow the amendment.
[ 11 ] There being no substantive or procedural prejudice in this matter, PCA's motion is dismissed with costs.
[ 12 ] I also rely on rule 1.04 (1) to reject the need for an amendment to the style of cause of the notice of action to conform with that of the statement of claim. I adopt the words of Day J. in a somewhat similar case of Titizian v. Walker , [2001] O.J. No. 1046 (S.C.J.) at para. 24 as follows:
- It would be appropriate to allow an amendment to the notice of action as requested, but I find no necessity to go that far. Apart from the proposed amendment being excessive to meeting the requirement, the reality is that, with the statement of claim being served with the notice of action, an expanded notice of action in the circumstances would be a redundancy.
[ 13 ] Rule 1.04 (1) requires the court to interpret the rules in the most expeditious and least expensive manner. Requiring parties to seek leave of the courts to make amendments to documents that are unnecessary for the just determination of a matter on the merits is to be discouraged.
[ 14 ] The parties provided the court with written cost submissions which I have considered after deciding the matter.
[ 15 ] The plaintiffs request costs on a substantial indemnity basis. Given the complete lack of prejudice to the defendant PCA, the decision by its co-defendant not to join in on its motion, the unexplained delay of over a year in bringing his motion and the complete lack of merit in doing so, I conclude that the defendant PCA has not acted reasonably and an award of costs on a substantial indemnity basis is justified.
[ 16 ] The plaintiffs have submitted a costs outline requesting costs on a partial indemnity basis in the total amount of $4,528.43 inclusive of fees disbursements and HST. The defendant PCA's costs outline, also on a partial indemnity basis request the amount of $6,895.72 all-inclusive. Its disbursements comprise a claim for travel costs.
[ 17 ] In the circumstances, I award the plaintiffs costs on a substantial indemnity basis in the all-in amount of $6,000.
[ 18 ] Order to go in accordance with the draft order provided, striking paragraph 1 requiring the notice of action to be amended, and amending paragraph 3 to add the words "in the amount of $6,000".
Annis J.
Date: January 24, 2012
ONTARIO SUPERIOR COURT OF JUSTICE RE: VIPUL MODY and MODY MANAGEMENT INC., Plaintiffs, AND ING INSURNCE COMPANY OF CANADA/COMPAGNIE D’ASSURANCE ING DU CANADA and PCA ADJUSTERS LIMITED and STEAMATIC of OTTAWA-CARLETON, Defendants BEFORE: Annis J. COUNSEL: Michael Van Dusen,Counsel for the Plaintiffs Randy Ai, Counsel for the Defendants ENDORSEMENT Annis J.
Released: January 24, 2012