COURT FILE NO.: CV-13-0264
DATE: 20140108
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RODERICK ROLAND CATFORD, Plaintiff
AND:
ERIKA ADELE CATFORD, Defendant
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL: The Plaintiff, Self-Represented
M. Miller, for the Defendant
HEARD: January 3, 2014
ENDORSEMENT
[1] This is a motion by the plaintiff filed in response to the defendant’s motion to strike parts of the claim as disclosing no reasonable cause of action. By the cross-motion the plaintiff seeks to amend his statement of claim, and to consolidate this action with Barrie court file number 11-0642, to be set down for trial together with that action and to be heard during the May, 2014 trial sittings at Barrie.
[2] The plaintiff also sought various other relief, including an adjournment of the defendant’s motion for cross-examinations, costs of an examination for discovery not attended by the defendant, and further sought that the defendant’s motion be adjourned to proceed by way of trial. Other than the issue of costs for the aborted examination for discovery, the plaintiff did not argue this other relief.
[3] Paragraphs 1 to 5 of the plaintiff’s motion shall be dismissed. Paragraphs 1 and 2 are dismissed because the Rule 21 motion brought by the defendant had merit, was an appropriate interlocutory motion, and was necessary because no agreement had been reached by the parties regarding amendments to the claim. The claims in paragraphs 3 and 4 with respect to cross-examinations for the Rule 21 motion are dismissed because no evidence is to be heard on such motions, which are based solely on a review of the pleading. Cross-examinations would have been unnecessary and wasteful. The relief sought in paragraphs 4 and 5 with respect to attendance for examinations for discovery and costs thrown away is dismissed because it was unreasonable for the plaintiff to have delivered a Notice of Examination and to have expected the examination to proceed when a pleadings motion was scheduled. It would have been a waste of time and resources to undertake examinations for discovery while the claims and issues in the lawsuit remained uncertain.
[4] With respect to the motion to amend, the proposed revised pleading attached as Schedule ‘A’ to the Notice of Motion did not address all of the problems with the existing claim. These issues were outlined by this court in its Ruling with respect to the Rule 21 motion. The draft amended claim continued to make a claim for the “Catford family estate”, and a claim in negligence with no particulars being provided. Many of the paragraphs which the court struck, which remain in the plaintiff’s draft revised pleading, contain facts that could only support a claim for alienation of affection and are irrelevant to a defamation claim. Given these facts, the motion to amend could not have succeeded even in the absence of my prior Ruling with respect to striking portions of the claim.
[5] The final issue is the request to consolidate. While the claims share a commonality of individuals who are alleged to have either spoken or heard the defamatory comments – Peter, Ellen, Erika and Jane Catford – the comparison stops there. There is no evidence of exactly the words spoken to whom, when, or under what circumstances. The references in the claim to the defamatory words allegedly spoken are vague and general. There is no evidence of whether there are common witnesses. Two of the witnesses identified in action 11-0642 are Peggy O’Kane and Jamie Moran. There is no evidence that these individuals are proposed witnesses in this proceeding. Because of these deficits in the evidence, this court has no basis upon which to conclude that the two proceedings share common questions of fact, or arise out of the same occurrences. That being the case, the plaintiff has not satisfied the test set out in Rule 6.01(1), and therefore the relief sought is dismissed.
[6] The plaintiffs have agreed however that in the absence of a consolidation order, they would agree to have this action tried after 11-0642 during the May trial sittings, subject to the overriding discretion of the trial judge. I can see that there may be a benefit to having the occur both in the amount of preparation time required by the plaintiff’s counsel and, if there ends up to be overlap in witnesses, the trial procedure maybe tailored accordingly. A common pre-trial may also benefit the parties.
[7] Accordingly, this court orders:
On consent, this action will tried immediately after the action bearing court file number 11-0642 during the May, 2014 trial sittings at Barrie;
Sworn Affidavit of Documents shall be served in this matter by both parties by March 1, 2014;
Examinations for Discovery shall be completed on this matter by March 15, 2014, and all undertakings answered by April 1, 2014;
The action shall be set down by April 15, 2014;
The parties in both actions shall attend a pre-trial conference on April 22, 2014 at 2:15 p.m., without necessity of attending trial scheduling court.
[8] If the parties are unable to agree upon the costs of this motion they may make brief submissions in writing not exceeding two double-spaced pages together with a cost outline, and any offers to settle on which they rely. The defendant’s are due by January 17, 2014 and the plaintiff’s are due by January 24, 2014, and any reply by January 29, 2014, to be filed with my judicial assistant in Barrie.
HEALEY J.
Date: January 8, 2014