ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10739-08
DATE: 2013-07-03
BETWEEN:
Northern Uniform Service Corp.
Plaintiff/Responding Party
– and –
WSI Canada Inc. or WSI Canada Ltd., and WSI Washing Systems Canada, Washing Systems Inc. and Johnson Diversey Canada Inc.
Defendant/Moving Party
Robert C. Taylor, for the Plaintiff
A. McBride, for the Defendant Johnson Diversey Canada Inc.
WSI Canada Inc. or WSI Canada Ltd., and WSI Washing systems Canada, Washing Systems Inc., unrepresented on the motion
HEARD: June 28, 2013
DECISION ON MOTION
R.D. Gordon J.:
Overview
[1] The Defendant Johnson Diversey Canada Inc. (“JDC”) asks for leave to have its outstanding motion for summary judgment heard by the court.
Background
[2] This action was started by way of Statement of Claim on February 29, 2008 and arises out of a claim for negligence and breach of contract. The Plaintiff is in the business of renting and laundering industrial garments. It claims the Defendants provided it with improper and ineffective cleaning formulae, an obsolete distribution system and improper advice concerning laundry load weights, all of which resulted in increased costs and decreased efficiency.
[3] JDC served a motion for summary judgment on August 1, 2012 which sought the dismissal of the Plaintiff’s claims against it in their entirety based upon expiry of the applicable limitation period.
[4] Counsel for the Plaintiff requested an adjournment of the motion in order to obtain expert reports. In September of 2012, on consent, the motion was adjourned without date.
[5] In December of 2012, the parties appeared in assignment court to set a date for the trial of the action and agreed to the matter being listed for trial the week of October 7, 2013.
[6] Late in December, the Plaintiff provided its expert report to JDC. JDC requested further documents from the Plaintiff which were provided by the end of March, 2013. JDC then commissioned its own expert report and sought to have its summary judgment motion returned to this list.
Applicable Law
[7] Rule 48.04 provides that any party who has consented to an action being placed on a trial list shall not initiate or continue any motion without leave of the court. It is acknowledged that JDC consented to this matter being placed on the trial list for October 7, 2013. Leave is required.
[8] Given the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of an action on its merits, it is my view that leave should be granted when it is in the interests of justice to do so. Although that determination will necessarily require analysis on a case by case basis, the following general principles will guide that analysis:
When the parties have agreed to place an action on the trial list, it is an indication that all parties are ready for trial. If the parties are ready for trial, there should be no further procedural motions required unless there has been a substantial and unexpected change in circumstances [see Sperduti v. Mayo (1987) 22 O.A.C. 133 (Ont. Div. Ct.)].
When a party’s motion is for substantive relief and the moving party makes an arguable case, leave ought to be granted provided any prejudice to the opposing party can be compensated by way of costs [see Sperduti v. Mayo, supra].
When the parties have agreed that an action is to be placed on a trial list with the understanding that one of them will be bringing a motion for summary judgment in advance of trial, it may be inappropriate for the court to apply Rule 48.04 in a manner that would provide a strategic advantage to one party or the other [see Zogjani v. Toronto (City) 2011 ONSC 1147].
Analysis
[9] A motion for summary judgment seeks a final determination of the rights of the parties and, as such, is a request for substantive relief. In the event I am mistaken in my assessment of the nature of this motion, there has been no substantial and unexpected change in the circumstances of this case that would warrant the granting of leave.
[10] Had the issue of prejudice arisen, the only prejudice to the Plaintiff is the likely delay of the trial in the event the motion for summary judgment was to proceed. That sort of prejudice can be adequately compensated by costs.
[11] Is a Strategic Advantage being sought by the Plaintiff by Contesting Leave?
[12] Although JDC brought its motion for summary judgment before consenting to this matter being listed for trial, it had been adjourned without date. Rule 48.04 is quite clear that a motion will not be continued without leave in such circumstances. It is to be noted that JDC does not allege it advised the Plaintiff of its intention to continue the motion when it consented to list the matter for trial. There is no evidence that JDC advised the trial coordinator there was a motion for summary judgment outstanding or of its intention to continue the motion. Given the clear wording of the rule, no such intention on the part of JDC could reasonably be implied by the circumstances. Accordingly, the refusal of leave will lead to no improper strategic advantage to the Plaintiff.
Conclusion
[13] JDC’s motion for leave to have its motion for summary judgment heard is dismissed.
[14] With respect to costs, there is no suggestion that other than partial indemnity costs are appropriate. The Plaintiff has filed a costs outline seeking $16,673.05 in partial indemnity costs. Had JDC been successful, its costs outline seeks a much more modest $2,028.77.
[15] Although I accept the importance of this motion to the Plaintiff, in my view it was not particularly complex. The responding affidavit was but 31 paragraphs in length and neither the factum nor the case book was particularly complicated or lengthy.
[16] In all of the circumstances, an appropriate award of costs on this motion is $4,500 in favour of the Plaintiff.
Mr. Justice Robbie D. Gordon
Released: July 3, 2013
COURT FILE NO.: 10739-08
DATE: 2013-07-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Northern Uniform Service Corp.
Plaintiff/Responding Party
– and –
WSI Canada Inc. or WSI Canada Ltd., and WSI Washing Systems Canada, Washing Systems Inc. and Johnson Diversey Canada Inc.
Defendant/Moving Party
DECISION ON MOTION
R.D. Gordon J.
Released: July 3, 2013