ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12721/09
DATE: 2013-10-25
BETWEEN:
Sharon Ladd
Plaintiff
(Respondent)
– and –
Vale Canada Limited
Defendant
(Moving Party)
No one appearing for the Plaintiff
H. Michael Rosenberg, for the Defendant
HEARD: October 8, 2013
The HONOURABLE JUSTICE B. H. MATHESON
RULING ON MOTION
[1] This action commenced by way of a Statement of Claim dated November 2, 2009. It was amended by way of an Amended Statement of Claim dated February 23, 2010. It was further amended by an Amended, Amended Statement of Claim dated February 13, 2010 although the stamp of the Registrar states commenced 31 March 2011.
[2] By way of letter dated July 8, 2013 and sent by facsimile, the solicitor for Sharon Ladd was aware of change of status hearing for July 9, 2013 to October 8, 2013. See attached letter marked “A”.
[3] A status hearing was scheduled to be heard before me on October 8, 2013. Counsel for the defendant appeared, but no one appeared for the plaintiff.
[4] The solicitor for the plaintiff wrote to the Registrar on March 22, 2013 – it confirmed that the status hearing would take place on July 9, 2013. See attached letter marked “B”.
[5] As stated above, the matter was before me on October 8, 2013.
[6] The defendant Vale Inco Limited consented on March 29, 2011.
[7] By way of a “STATUS NOTICE: ACTION NOT ON TRIAL LIST” sent by the Registrar on December 27, 2012, this stated that the action be dismissed for delay. The reason that the Registrar gave was that two years had passed since a Statement of Defence was filed. See attached notice marked “C”.
[8] This was sent in error as a status hearing had been sent. The action was placed back on the court list.
[9] By way of a letter addressed to counsel for the plaintiff, dated December 7, 2012, a request was made for an amended statement of claim to reflect the decision of Mr. Justice Kent dated November 16, 2012. It also asked for particulars of damages claimed by the plaintiff and a discovery plan. See attached letter marked “D”.
[10] In an e-mail dated January 23, 2013 at 1:58 pm from Mr. Rosenberg to Natalie Smith, an associate of the plaintiff’s lawyer Eric Gillespie, he asks for an amended statement of claim and once he has it they could discuss the timetable. Natalie Smith replies that they should discuss a timetable. See attached e-mail marked “E”.
[11] An e-mail from Mr. Rosenberg to Mr. Gillespie states he is available for a status hearing on July 9, 2013. He is prepared to prepare for the status hearing but needs the plaintiff’s amended statement of claim. See attached e-mail marked “F”.
[12] Mr. Rosenberg e-mailed on July 3, 2013. He states that status hearing is scheduled for July 9, 2013 – would prefer to do status hearing in writing, but still needs amended statement of claim. See attached e-mail marked “G”.
[13] Mr. David Hwang, a solicitor in Mr. Gillespie’s office, e-mails Mr. Rosenberg that status hearing has been cancelled at court request and scheduled for October 8, 2013. Mr. Rosenberg acknowledged in e-mail of July 8, 2013 that status hearing is rescheduled for October 8, 2013. He will receive amended statement of claim either today or tomorrow. See attached e-mail marked “H”.
[14] Mr. Rosenberg e-mailed Mr. David Hwang on August 13, 2013. He still has not received amended claim and had been asking for it since last December. See attached e-mail marked “I”.
[15] Mr. Rosenberg e-mailed Mr. David Hwang on September 30, 2013. He states still does not have amended claim and needs it before status hearing on October 8, 2013. See attached e-mail marked “J”.
[16] Mr. Rosenberg e-mailed David Hwang on September 30, 2013 still not received amended claim – need it to prepare timetable proposed. Amended statement of claim is e-mailed by Graham Andrews of Mr. Gillespie’s office on September 30, 2013. Asks if he may sign timetable on his behalf. See attached e-mail marked “K”.
[17] Letter of Mr. Rosenberg dated October 1, 2013 to Mr. Gillespie states need more particulars as amended statement of claim does not reflect Justice Kent’s decision. See attached letter marked “L”.
[18] Mr. Rosenberg e-mailed to Graham Andrews on October 7, 2013 outlining the disclosure issues. See attached e-mail marked “M”.
[19] At the status hearing on October 8, 2013 nothing was accomplished. I adjourned the matter to allow for written reasons. Mr. Rosenberg for the defendant was present, no one appeared for the plaintiff.
[20] As I see it from the letters and what counsel stated, I find that the plaintiff’s lawyer is responsible for much of the delay. As a result, the status hearing accomplished nothing. The conduct of counsel for the plaintiff needs much explanation.
[21] I am aware that pursuant to Rule 48.14 I could dismiss the plaintiff’s claim. But that would be punishing the plaintiff for the conduct of her lawyer. I am going to allow the plaintiff’s lawyer the opportunity to explain in court his conduct.
[22] I am thus ordering the following:
- The plaintiff’s lawyer will provide the defendant’s lawyer the following:
i. An Amended Statement of Claim conforming to the decision of Justice Kent of November 16, 2012.
ii. Particulars of any new allegations to support the pleadings of the new Statement of Claim.
Discussions by the plaintiff’s lawyer with the defendant’s lawyer as to either a status hearing or setting the matter down for trial.
I will hear argument as to the costs thrown away by the conduct of the plaintiff’s lawyer.
Counsel can arrange to a hearing before me with my trial coordinator.
[24] I want this dealt with before the end of November 2013.
Released: October 25, 2013
COURT FILE NO.: 12721/09
DATE: 2013-10-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sharon Ladd
Plaintiff
(Respondent)
– and –
Vale Canada Limited
Defendant
(Moving Party)
Ruling on motion
Matheson, J.
Released: October 25, 2013