Court File and Parties

CITATION: Onunkwo v. ASPA Canada, 2015 ONSC 2006

COURT FILE NO.: 1801/14

DATE: 2015-03-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHIGBO ONUNKWO, Applicant

AND:

ALL FORMER MEMBERS BOARD OF DIRECTORS AND FORMER PRESIDENT, ANAMBRA STATE PROGRESSIVE ASSOCIATION, CANADA (“ASPA CANADA”), UCHE EZEMENARI, AMAECHI OBIAKO, OKEY AZIKIWE, EVANS ENYOLU, MARTINA OBY NRIAGU, CHUDI ASIDIANYA, Respondents

BEFORE: Gray J.

COUNSEL: Michael Dibua, Counsel for the Applicant Krystyne Rusek, Counsel for the some of the Respondents

HEARD: In writing

Endorsement

[1] I have received correspondence from counsel for the applicant in connection with this matter. Mr. Dibua requests that a long motion that was not confirmed in time be reinstated for hearing on March 30, 2015. I am dealing with the matter in the absence of the Local Administrative Judge for Milton, Justice Coats, who is a conference. For the reasons that follow, Mr. Dibua’s request is denied.

[2] Some background is in order.

[3] As it happens, this matter originally came before me in chambers on March 18, 2014, as a request that an ex parte motion be heard. I determined it was not an appropriate ex parte motion, and that it must be served and heard as a regular motion.

[4] Ultimately, the matter came before Trimble J. on September 23, 2014 as a regular motion, and it was adjourned on consent to March 30, 2015 as a long motion. Justice Trimble fixed a timetable, and ordered costs payable by the responding parties in view of their lack of diligence in responding to the matter.

[5] The matter was struck from the list because it was not confirmed in time. This is what gives rise to Mr. Dibua’s correspondence, and his request to me that the matter be restored to the list.

[6] In order to understand why I am dealing with this matter in the way that I am, some additional background is in order.

[7] As is not uncommon in most parts of the province, judicial resources in Milton are scarce. There is a backlog of long motions, which, in Milton, are motions that will likely exceed one hour. Long motions must be booked several months in advance.

[8] One of the things that seemed to contribute to the backlog was the fact that in many cases, parties who booked long motions several months in advance did not confirm them in time or at all. As a result, times that had been booked for long motions were not used, because by the time it was ascertained that the motion was not confirmed in time, it was simply not possible to backfill the allotted time and use it for another motion.

[9] As a result, it was decided that in Milton we would adopt a practice of requiring long motions to be confirmed no later than three weeks prior to the date the motion is to be heard, and also requiring that all material be filed by the moving party by that date. A practice direction was prepared, that actually explained why it was being prepared. It reads as follows:

In Milton, a long motion is one that is anticipated to take one hour or more. Such motions must be booked in advance, and currently it takes approximately four months for a motion to be booked. We have found that many long motions are cancelled shortly before the date for argument, and some are simply not confirmed. In such circumstances there is insufficient time to back fill with another motion, and limited judicial resources are wasted.

Henceforth, long motions in Milton must be confirmed no later than three weeks prior to the date the motion is to be heard, and all material must be filed by the moving party by that date. The litigant, or counsel, as the case may be, will be advised of this requirement at the time the motion is booked.

If the material and the confirmation are not filed at least three weeks in advance of the date the motion is to be heard, the motion will be removed from the list and will not be heard. If possible, the time can be used to hear another motion by arrangement with the trial office.

[10] That practice direction is currently being tightened even further, effective March 16, 2015, by requiring that a notice of motion, with payment, must be filed within ten days of booking the motion.

[11] The practice direction, dated Mary 14, 2013, is now published online together with all practice directions issued by the Superior Court of Justice. There is a separate consolidated practice direction for the Central West Region, of which Milton is a part. The relevant paragraphs of that consolidated practice direction read as follows:

Long Motions in Milton

51 In Milton a long motion must be confirmed no later than three weeks prior to the date the motion is to be heard, and all material must be filed by the moving party by that date. The litigant, or counsel as the case may be, will be advised of this requirement at the time the motion is booked.

52 If the material and the confirmation are not filed at least three weeks in advance of the date the motion is to be heard, the motion will be removed from the list and will not be heard. If possible, the time can be used to hear another motion by arrangement with the trial office.

[12] The only difference between the online version of the practice direction and the one that was issued on May 14, 2013 is that the online version does not have the paragraph that explains the rationale for it.

[13] It should be noted that when the original practice direction was issued in May, 2013, it was widely circulated to the Bar and was, and still is, posted outside the court offices.

[14] The matter came to my attention on March 24, 2015 when I was advised of a letter from Ms. Rusek, counsel for some of the respondents. She advised that she had attempted to file materials for a preliminary motion in relation to the long motion scheduled on March 30, 2015, and was informed that the application had been struck from the list because it had not been confirmed in time. Ms. Rusek requested that she be allowed to have her motion heard on March 30, 2015 or on the earliest date thereafter.

[15] I instructed the Trial Coordinator that since the original long motion had not been confirmed and was therefore not on the list, Ms. Rusek’s motion would not be heard and she should be advised to bring a motion on another day.

[16] I should note that because the long motion scheduled for March 30, 2015 had been scheduled for an entire day, and it had been struck from the list, there was no longer a judge available to hear the motion in any event. In Milton, we are currently engaged in our twice-yearly “blitz” sittings for lengthy civil trials, and thus judicial resources are even more scarce than usual.

[17] The Trial Coordinator received a letter from Mr. Dibua dated March 25, 2015, in which he requested that the matter be placed back on the list and heard on March 30, 2015. Mr. Dibua pointed out that he had confirmed the motion 17 days prior to the hearing date, and argued that this was sufficient notice having regard to the general practice direction relating to Central West Region, which requires confirmation five days before a long motion. He argued that he had not been advised by the court office that any other time for confirmation was required.

[18] I instructed the Trial Coordinator to advise Mr. Dibua that because the matter had not been confirmed three weeks in advance of the motion date, the motion would not be heard on March 30, 2015, but that in accordance with the usual practice in Milton, if the parties appeared on March 30, 2015 and requested that a judge, who may be available, hear the matter, it would be assessed at that time. As noted, there is simply not a motion judge scheduled for long motions that day.

[19] On March 26, 2015, the Trial Coordinator emailed Mr. Dibua, referred to the practice direction regarding long motions in Milton, and advised him that the matter had been struck from the list based on that practice direction. She also noted that the responding party had asked that the matter be restored to the list and that I had denied that request. She advised him that the parties had the option to attend and request that the matter be added to the list on a “walk-in” basis and that a decision would be made at that time.

[20] Mr. Dibua responded by email the same day and stated that he did not believe that the Trial Coordinator was being fair with her response “as you are obviously trying to protect your staff.” He stated that it was not enough to direct him to a practice direction after the fact and tell him that the matter had been struck from the list. He stated “you and your staff should ensure that this matter comes before a judge on March 30, 2015, because you have caused this mess.” He also stated:

You and your staff cannot be arrogating to yourselves the power to take matters off the Hearing list and make decisions bordering on the rights of litigants, this is a decision that the court should be making.

[21] The Trial Coordinator emailed Mr. Dibua the same day, and advised him again that she had spoken with me, and I had advised that the matter had been struck from the list pursuant to the practice direction regarding long motions and she repeated that he could attend on March 30, 2015 to try to persuade a judge to hear the motion.

[22] Mr. Dibua requested information as to how to contact me, and said “I find this whole matter and the manner you are dealing with it very disturbing.”

[23] I should add that Ms. Rusek sent a letter to the Trial Coordinator on March 26, 2015, and clarified that she had not requested that the application be reinstated for March 30, 2015. Rather, she had asked if her preliminary motion could be heard in lieu of the application, or in the event that the application was reinstated, her preliminary motion could be heard first.

[24] Mr. Dibua appears to have misunderstood the role of the Trial Coordinator. Her role is to apply the policies and procedures that are applicable unless she gets dispensation from a judge of this court. One of those policies and procedures that is binding on her is the practice direction that is published online and is publicly available. There is no use castigating the trial Coordinator for following the rules. If there is an argument that the practice direction should not have been promulgated, or it should be changed, that is a legitimate argument and can be taken up in the proper quarter. However, to criticize the Trial Coordinator for doing her job is not helpful.

[25] It is no answer, as Mr. Dibua seems to suggest, that he did not know about the practice direction. As noted, it is available online and available publicly. He knows the practice directions are online, because he consulted one part of the practice direction that applies in Central West Region. However, he did not consult the part that would have dealt with this particular case. While the motion was not originally booked as a long motion, as it was adjourned to a long motion date from a regular motion, nevertheless the requirement to confirm it three weeks in advance of the hearing date applied.

[26] If a litigant misses the time for confirming a motion, particularly a motion that is scheduled for an entire day, it is not sufficient to assert that the court can, and should, simply reinstate it. The purpose of the three week requirement is so that the judicial resources available in Milton can be allocated in the most efficient way possible. If the motion is not confirmed properly, the judicial resources that would have been made available for that motion will be reallocated. That is what has happened here. There is no longer a judge available to hear the motion.

[27] For these reasons, the long motion that was originally scheduled for March 30, 2015 will not be heard on that date. In order to save the parties the trouble of coming to Milton on that date and requesting that a judge be found to hear it at the last minute, I can confirm that that will not be necessary. The motion will not be heard.

[28] The parties are free to arrange a new date for the matter to be heard as a long motion, and if a backfilled date is available I will urge the Trial Office to offer it to the parties.

Gray J.

Date: March 27, 2015