SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 46729
DATE: September 22, 2014

RE: MARK FRENCH, A TRUSTEE OF THE CHIPPEWAS OF THE THAMES LAND CLAIM TRUST, ON BEHALF OF 1317424 ONTARIO INC. and MARK FRENCH, A TRUSTEE OF THE CHIPPEWAS OF THE THAMES LAND CLAIM TRUST, plaintiffs

AND:

CHRYSLER CANADA INC., BENCHMARK REAL ESTATE SERVICES CANADA INC., CHARLES BRUDENELL, GEORGE MURRAY SHIPLEY & BELL, FRANK FAZIO, RSJ HOLDINGS INC. and THE D’ANDREA GROUP INC., defendants

AND:

176694 CANADA INC., CHESTER ENGINEERS INC. (a.k.a. The Chester Engineers) and N.A. WATER SYSTEMS, LLC, third parties

BEFORE: VOGELSANG J.

COUNSEL:
C. Scott Ritchie, Q.C. and Rasha El-Tawil for the plaintiffs

Barry H. Bresner for Chrysler Canada Inc.

Adam Stephens for Benchmark Real Estate Services Canada Inc. and Charles Brudenell

Allison M. Webster for George Murray Shipley & Bell and Frank Fazio

Craig J. Allen for The D’Andrea Group Inc.

Patrick Welsh for N.A. Water Systems, LLC

HEARD: September 18, 2014

ENDORSEMENT

[1] The plaintiffs move for an adjournment of the trial of this action which is scheduled to be heard on the civil running list for October 6, 2014 at London. The trial is expected to last eight weeks and two related actions have been directed to be heard immediately after this trial. The plaintiffs seek an order that the trial be struck from the running list and traversed to the October 17, 2014 Assignment Court.

[2] Counsel for Chrysler Canada Inc. strongly opposes the adjournment. Counsel for the other parties who appeared on the motion directed no real argument to the issue, but indicated their support for Mr. Bresner’s position.

[3] The action arises from the plaintiffs’ purchase of a former foundry site in Point Edward, near Sarnia, in 1999 from Chrysler Canada which had acquired the property in 1987 as part of the assets of American Motors (Canada) Inc. The background of the claims is set out by Heeney R.S.J. in his reasons after a July 23, 2014 motion, appeals from which form the basis for this motion.

[4] In the previous motion, the plaintiffs sought to amend their Fresh as Amended Statement of Claim pursuant to Rule 26.01 to allow a claim for damages for nuisance and to plead particulars of the nuisance alleged against the defendant Chrysler Canada. They also sought leave under Rule 53.03(4) and 53.08(1) to extend and abridge the time for service and filing of two expert reports (the Valcro reports). These reports were present property valuations – relating to a claim for stigma damages, value diminution losses arising from local knowledge that the real property may well be in a state of severe environmental contamination.

[5] Heeney R.S.J. gave careful and extensive reasons and dismissed the motions. See French v. Chrysler, 2014 ONSC 4573 (Sup. Ct.).

[6] The plaintiffs quickly appealed to the Court of Appeal from the final order of Heeney R.S.J. denying leave to amend the Fresh as Amended Statement of Claim and to plead their particulars of nuisance. Further, they delivered a motion to a judge of the Superior Court of Justice seeking leave to appeal the denial of time to serve the two Valcro reports.

[7] At this motion, I was told that the appeal to the Court of Appeal can probably be heard in about six months. There was no real objection taken to that estimate during argument. Goodman J. has fixed the date of October 16, 2014 for argument concerning leave to appeal to the Divisional Court.

[8] Perell J. set out the general principles to be considered where an adjournment is opposed in Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497 (Sup. Ct.) at para. 34:

• the overall objective of a determination of the matter on its substantive merits;

• the principles of natural justice;

• that justice not only be done but appear to be done;

• the particular circumstances of the request for an adjournment and the reasons and justification for the request;

• the practical effect or consequences of an adjournment on both substantive and procedural justice;

• the competing interests of the parties in advancing or delaying the progress of the litigation;

• the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;

• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;

• the need of the administration of justice to orderly process civil proceedings; and

• the need of the administration of justice to effectively enforce court orders.

As well, he said:

In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.

[9] Mr. Ritchie argues that the reasons prompting this request to adjourn are even more compelling, arising as they do from the two appeals the plaintiffs have launched. He cites the words of Veit J. in Alberta Teachers’ Assn. v. Alberta (Information and Privacy Commissioner), 2010 ABQB 599, [2010] A.J. No. 1118 (Alta. Q.B.) where she said:

The foregoing cases illustrate the principle, which I think can be properly extended to this case being so closely related to the Hood action, that once the applicant establishes that a question left for determination by the Court of Appeal may affect the course of the trial, or have some considerable influence upon it, as a general rule the trial ought to be adjourned pending the outcome of the appeal unless the respondent demonstrates very special reasons otherwise.

[10] Mr. Bresner did not quarrel with the general principles put forward by the plaintiffs; however, he forcefully argued against the adjournment. While Mr. Ritchie placed the onus on Chrysler Canada to show “very special circumstances,” Mr. Bresner submitted that the initial onus was on the plaintiffs to demonstrate that the issues on appeal would reasonably affect the conduct of the trial or have a very considerable impact on it. This onus, he said, had not been met. He minimized the significance of a potential nuisance claim or its possible effect and, with respect to the experts’ reports, said that the plaintiffs were the authors of their own misfortune with the new reports which he said were two years late.

[11] It was Chrysler Canada’s position that the two appeals could proceed – assuming leave is granted on October 16, 2014. Mr. Bresner proposed that the trial judge could hear all the evidence and then defer proceeding further to await the decision of the Court of Appeal. With respect to the experts’ reports, Mr. Bresner suggested the trial judge could bifurcate the trial – since the reports deal solely with damages – and first determine the liability issues.

[12] In my view, with respect, the rather remarkable procedure proposed would be cumbersome and problematic in itself. It is harsh, I think, to criticize the experts’ reports as “out of the blue” as they are valuations for the assessment of damages and, as the plaintiffs point out, should probably be somewhat contemporaneous with the trial.

[13] Any prejudice in further delay seems to me to burden each of the many parties equally.

[14] This is serious litigation involving very large claims. I am not satisfied that either appeal could be termed frivolous. The first consideration listed by Perell J. in Ariston Realty Corp., supra is “the overall objective of a determination of the matter on its substantive merits.” To me that implies having correct, comprehensive pleadings and necessary proper expert evidence when the trial starts, and both questions will be determined in the outstanding appeals.

[15] In the result, the motion for adjournment is granted. Costs thrown away were mentioned without any further description. That issue is left to the trial judge. I am not prepared to impose any terms on the adjournment with respect to future amendments or further expert reports, as to do so may result in a prejudice to the defendants themselves. Mr. Bresner did seek leave to bring a motion for summary judgment, should the adjournment be granted. I am unsure if leave is required but, if it is, it is granted.

[16] Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. Submissions must be brief.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: September 22, 2014