SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CV-09-372390
Motion Heard: September 9, 2013
RE: Emanuel Lazaris a.k.a. Mano Lazaris v. Computer Logistics Inc. & Big Tech Inc.
BEFORE: Master R.A. Muir
Counsel:
Ronald G. Chapman for the moving parties/defendants
Garry J. Wise for the responding party/plaintiff
REASONS FOR DECISION
[1] The defendants bring this motion for an order that I recuse myself from hearing the defendants’ motion to dismiss this action for delay and an order that the dismissal motion be heard ab initio by another master. The plaintiff is opposed.
[2] On July 11, 2013 I heard a motion brought by the defendants seeking an order dismissing this action for delay. In support of their motion, the defendants relied on Rules 24 and 48 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[3] At the hearing of the motion a discussion took place as to whether the plaintiff was in breach of any of the enumerated grounds for dismissal for delay set out in Rule 24. Counsel made submissions on the point. Mr. Chapman also submitted that even if Rule 24 did not apply, I had jurisdiction to dismiss an action for delay beyond Rule 24. Mr. Chapman submitted that such jurisdiction could be found in the court’s authority to dismiss an action as an abuse of process. At the time this matter was argued, Mr. Chapman was unable to provide the court with any authority in support of his position. Mr. Chapman points out, quite correctly, that this issue was not dealt with in the parties’ motion material and only arose during the course of argument.
[4] At the conclusion of the argument of the defendants’ motion on July 11, 2013, I advised the parties that I was reserving my decision. It appears that Mr. Chapman then carried out some research on the jurisdiction issue. On July 12, 2013 Mr. Chapman wrote to Mr. Wise and advised him of an authority he had found and also advised Mr. Wise that he intended to write to me in order to seek leave to make further submissions.
[5] Mr. Chapman then wrote to me on July 12, 2013 and requested an opportunity to make submissions with respect to my jurisdiction to hear the dismissal motion, apart from Rule 24. I then asked my assistant to contact Mr. Wise and ask Mr. Wise for his position on Mr. Chapman’s request. Mr. Wise then wrote to me on July 17, 2013 and advised that his position was that the matter had been fully argued on July 11, 2013 and that the plaintiff opposed the request made by Mr. Chapman. Unfortunately, this letter was not immediately copied to Mr. Chapman.
[6] On July 17, 2013 I made an endorsement in which I advised the parties that I was not prepared to hear any further submissions on the issue. In my July 17, 2013 endorsement I indicated that Mr. Wise objected to Mr. Chapman’s request. It appears that Mr. Chapman was not aware of Mr. Wise’s letter to me until after he saw that reference in my July 17, 2013 endorsement. Mr. Chapman then followed up with Mr. Wise and obtained a copy of his letter. Mr. Chapman has indicated that he intended to respond to the letter. However, in the interim, on July 18, 2013, I released my reasons for decision dismissing the defendants’ motion.
[7] As an aside, I note that there was some urgency to deciding the dismissal motion. On May 15, 2013, Master Abrams had made an order fixing a trial date for January 13, 2014 and the parties had yet to conduct examinations for discovery. The fixed trial date remains in place as of the date of these reasons.
[8] In my reasons for decision of July 18, 2013, I concluded, in part, as follows:
• none of the enumerated grounds for dismissal for delay found in Rule 24 applied to the facts of this action;
• a master does not have jurisdiction to make an order dismissing an action for delay as an abuse of process;
• even if I did have jurisdiction apart from Rule 24, I would not have exercised my discretion to dismiss this action for delay.
[9] The defendants take the position that their inability to reply to Mr. Wise’s letter to me of July 17, 2013 was procedurally unfair and amounts to a denial of natural justice. In addition, they submit that I do have jurisdiction apart from Rule 24 to dismiss an action for delay based on Wright v. Rank City Wall Canada Ltd., [1989] O.J. No. 3090 (H.C.).
[10] I do not agree with the defendants’ submissions in this regard. First, in my view, there is nothing of substance in Mr. Wise’s letter of July 17, 2013 that dealt with the jurisdiction issue. Mr. Wise simply stated that he opposed the defendants’ request to make further submissions and that his recollection was that no argument was advanced on the issue of jurisdiction. Only Rule 24 was argued. His letter does not make any reference to inherent jurisdiction, abuse of process, Justice Arbour’s decision in Wright or to any other basis upon which the court may make an order dismissing an action for delay.
[11] Second, I fully explained my reasons for not allowing any further submissions as part of my July 18, 2013 reasons for decision. At paragraphs 16 and 17 of my decision I stated as follows:
On July 12, 2013 I received a written request from Mr. Chapman for permission to make further submissions in connection with my jurisdiction to hear this motion (other than pursuant to Rule 24). By letter dated July 17, 2013, Mr. Wise advised the court that the plaintiff opposed the defendants’ request.
On July 17, 2013, I advised the parties that I was not prepared to allow any further submissions. This matter was fully argued on July 11, 2013. The defendants brought this motion pursuant to Rules 24 and 48. No other grounds for the motion were relied upon. If the defendants intended to argue this motion on some other basis, it should have been clearly set out in the notice of motion or in a supplementary notice of motion. The further submissions the defendants now wish to make could have been made on July 11, 2013. They do not rely on new case law or developments that took place following argument. Finally, this is a simplified procedure action. Given my conclusions set out below, further submissions would only result in additional wasted time and expense to the parties. This matter needs to be determined on its merits.
[12] Third, I note that the decision in Wright involved a situation where the moving party had expressly relied upon the stay provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) as a basis for his motion. A master does have jurisdiction pursuant to what is now section 106 of the CJA to make an order staying an action. Justice Arbour found that Master Sandler had erred by concluding that the stay provisions were unavailable to the defendant in that case. Here, however, the defendants did not make any reference to section 106 of the CJA in any of their materials. They relied solely on Rules 24 and 48. As I stated in my July 18, 2013 reasons, if the defendants intended to argue this motion on some other basis, it should have been clearly set out in the notice of motion or in a supplementary notice of motion. It was not appropriate for the defendants to completely re-cast the basis for their motion after it had been fully argued.
[13] Finally, even if I had jurisdiction to hear the dismissal motion on a basis other than Rule 24, I would have dismissed the defendants’ motion in any event for the reasons set out at paragraphs 29 to 35 of my July 18, 2013 reasons for decision.
[14] For these reasons, I have therefore concluded that this motion should be dismissed.
[15] At the conclusion of the argument of this motion, the parties agreed that a partial indemnity costs order in the amount of $3,000.00 was fair and reasonable for a motion of this nature, at least in terms of quantum. Mr. Wise submitted that costs in this amount should be awarded to the successful party. Mr. Chapman submitted that if the plaintiff was successful, there should be no order for costs as this situation arose as a result of Mr. Wise failing to immediately copy Mr. Chapman with his July 17, 2013 letter.
[16] In my view, the plaintiff is entitled to costs. The failure of Mr. Wise to immediately copy Mr. Chapman with his letter to the court was not deliberate. It was a simple matter of inadvertence which was corrected in short order. In fact, it appears that Mr. Chapman had a copy of Mr. Wise’s letter by the end of the day on July 17, 2013. He also knew from my endorsement of July 17, 2013 that I intended to release my reasons for decision on July 18, 2013. Mr. Chapman could have at least attempted to contact the court to advise that he had not received a copy of Mr. Wise’s letter and that he may wish to respond to the letter. I do not view this inadvertent error by Mr. Wise as a sufficient basis to justify a departure from the usual practice of awarding costs to the successful party. The defendants shall pay the plaintiff’s costs in the amount of $3,000.00.
[17] I therefore order as follows:
(a) the defendants’ motion is dismissed; and,
(b) the defendants shall pay the plaintiff’s costs of this motion, fixed in the amount of $3,000.00 inclusive of HST and disbursements, payable within 30 days.
Master R.A. Muir
DATE: September 12, 2013