SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 06-CV-35171
DATE: 20130802
RE: DORIS DUCHARME, Plaintiff
AND:
SOLARIUM DE PARIS INC., Defendant
BEFORE: Honourable Justice Timothy Ray
COUNSEL:
W. J. Sammon, Counsel, for the Plaintiff.
Brian C. Elkin, Counsel, for the Defendant.
HEARD: August 1, 2013
ENDORSEMENT
(Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c.6)
[1] In this class proceeding, the defendant seeks leave to appeal the decision of R. Smith, J (“motion judge”) dated March 25, 2013 (with reasons April 29, 2013) in which he ordered notice to the class by newspaper advertisements; and secondly ordered that a common issue be added concerning whether there is an appropriate remedy.
[2] A motion for leave to appeal an interlocutory order requires the moving party to establish as follows:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.[^1]
[3] The first branch of the rule concerning a conflicting decision contains two parts. Not only must there be a conflicting decision in the sense that there are conflicting principles at play, but also that it is important that the conflict be resolved by an appellate court. The second branch of the rule is also conjunctive in that the moving party must establish both that there is good reason to doubt the correctness of the decision - and - that it involves matters of sufficient importance.
[4] There have been extensive interlocutory proceedings in this class action which was certified October 18, 2010.
Notice - Newspaper Advertisements
[5] In response to a motion brought by the plaintiff to determine how notices to the class will be given, and to approve the wording of the notice, the motion judge ordered that in addition to the notice by mail previously ordered by Charbonneau J., (“case management judge”) “some reasonable notice should be given by publication in newspaper(s) to ensure adequate notice is given to all other potential class members”[^2]. He also ordered that “Counsel are to discuss the number of publications and the newspapers in which notice is proposed to be published as well as the wording of the notice to class members. If counsel are unable to agree then submissions and affidavit evidence may be filed related to the costs of publication and the location of solarium owners residences. Costs of publication to be shared equally.”[^3]
[6] The defendant contends that the motion judge had no authority to make the order that he did because it had already been settled by the case management judge; and further, that he varied his order from the written endorsement to his written reasons.
[7] It is not clear to me that there is a decision that is capable of review. The motion judge ordered that there be notice by mail – thereby repeating the order made by the case management judge- and then ordered newspaper publication. Importantly, in answer to the defendant’s complaint of cost, but without producing any evidence of cost, the motion judge ordered that the parties confer concerning the cost and extent of publication with the provision that the issue would come back before him for decision if they could not agree. I am satisfied that subject to agreement between the parties, that the order has yet to be determined.
[8] I also note the motion judge’s sensitivity to his role under the class proceedings legislation to move the matter forward in a manner that would assist the parties with due concern for the members of the class who have yet to be determined.
[9] The motion judge’s decision concerning publication follows from the case management judge’s decision. The evidence before him had developed after the case management judge’s order. There is no apparent principle in the motion judge’s decision that is at odds with a principle in the case management judge’s decision. There is no conflicting decision, and it is not deserving of appellate review. The motion fails on this branch of the rule.
[10] With respect to the second branch of the rule, I cannot say that I doubt the correctness of his decision. His order logically follows from the evidence before him. He made no error of law. The defendant’s complaint that he made an endorsement with reasons to follow has no merit. I cannot see that it is a matter of sufficient importance to warrant appellate review. The motion also fails on the second branch of the rule.
Additional Common Issue – whether there is an appropriate remedy.
[11] In response to the plaintiff’s motion to add two common issues, the motion judge dismissed the claim regarding adding a common issue to determine individual economic damages, but allowed the addition of a common issue concerning a remedy as follows: “A corollary issue to common issue #3, if it is answered “yes” is: Do all of the solariums in the class have to be removed, or is there some other appropriate remedy? This would be a common issue for all class members and is closely related to common issue #3.”[^4]
[12] This decision was prompted by the plaintiff having obtained an expert report in which it was claimed that the solarium units were in non-compliance with the Ontario Building Code, posed a threat to the health and safety to their owners, and that nothing could be done by way of remediation other than the removal of each unit. The motion judge concluded that if the opinion of the expert were accepted that it raised a common issue: ‘’Do all of the solariums in the class sold in Ontario have to be removed?”[^5]
[13] The defendant contends that the order requires appellate review because firstly, the motion judge relied on an expert opinion which was appended to an affidavit rather than being in an affidavit itself therefore, improperly before the court. While conceding that he did not raise his objection for some 9 months after he had been served with the motion record, he says that the motion was adjourned for a further 5 month delay, leaving the plaintiff every opportunity to obtain and file the expert report in affidavit form. In any event, he says that the failure of the plaintiff to properly introduce the expert evidence was fatal, and the motion Judge erred in considering the evidence.
[14] The plaintiff argues that it was open to the motion judge to rely upon the expert report for the purpose of dealing with an additional common issue in the face of the waiver by the defendant of any objection; and the motion judge was factually correct in reciting that the defendant had delayed before raising an objection to the expert report. In fact, he says the defendant only raised the objection 5 days before the motion was to be heard and was contrary to the practice between the parties to exchange affidavits with attached expert reports.
[15] The plaintiff also argues that even without the expert report, it was open to the motion judge to add the common issue as he did, since it was really just a logical extension of the other common issues.
[16] I am satisfied that the motion judge recognized the flaw in relying on the plaintiff’s expert report. The defendant is critical of the motion judge for pointing to the Mohan criteria and failing to mention the admissibility issue of the report. However, I am satisfied that the motion judge was alive to that question even though he neglected to explicitly refer to admissibility. I am also satisfied that had the defendant not been found to have objected to the report being considered until a few days before the motion, it seems a clear inference from his decision that he would have accepted the defendant’s objection.
[17] The authorities make it clear that on a common issues motion, the best evidence rule is required and that fairness requires that expert reports must be in the proper form of sworn evidence[^6]. However, it was open to the motion judge to consider the practice between the parties and the conduct of the defendant as he did; and exercise his discretion.
[18] Under the first branch of the test, there are no conflicting decisions. While the authorities are clear that sworn evidence of an expert is required, no case was drawn to my attention which provides that a judge in the proper circumstances did not have the power to exercise his discretion as the motion judge did. While I may not have exercised my discretion in the same way, it was certainly open to him to do so. Under the second branch, I cannot say that I doubt the correctness of his decision to admit the expert report for the purpose of the motion. This is fact specific to this case and not a statement of principle or new law. In any event, I have serious doubts that the question is of sufficient importance for consideration by the Divisional Court. The addition of the common issue to determine if there is a remedy does not strike me as a terribly significant addition to the common issues.
[19] I am satisfied that the motion for leave to appeal fails as not coming with either branch of Rule 62.02.
[20] If the parties cannot agree on costs, they may make written submission of two pages or less within 14 days with a further 5 days for reply, addressed to the Trial Coordinator’s Office at Ottawa.
Honourable Mr. Justice Timothy Ray
Date: August 2, 2013
COURT FILE NO.: 06-CV-35171
DATE: 20130802
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DORIS DUCHARME , Plaintiff
BEFORE: Honourable Justice Timothy Ray
COUNSEL: W. J. Sammon, Counsel, for the Plaintiff.
Brian C. Elkin, Counsel, for the Defendant.
ENDORSEMENT
(Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c.6)
Honourable Justice Timothy Ray
DATE: August 2, 2013
[^1]: R.R.O.1990, Reg.194, r. 62.02 (4).
[^2]: Reasons, 2013 ONSC 2540, paragraph 8
[^3]: Note 2, paragraph 10
[^4]: Note 2, paragraph 30
[^5]: Note 2, paragraph 26
[^6]: Schick v : V. Boehringer Ingelheim (Canada) Ltd, 2011 ONSC 63 @paragraph 28