CITATIONCurle et al v Gustafson et al, 2015 ONSC 884
COURT FILE NO.: CV-12-0438-00
DATE: February 06, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALLAN CURLE, BRUCE JOHNSON,
JEANETTE JOHNSON, NORALL
GROUP INC. AND NORALL GROUP
CONTRACTING INC. – PLAINTIFFS
-and-
GINA GUSTAFSON, JUANITA CURLE,
HOLLY LEBRUN, CARL GUSTAFSON,
AND D.J. GUSTAFON ENGINEERING LTD.
C.O.B. AS AEGUS CONTRACTING - DEFENDANTS
HEARD: January 30, 2015
BEFORE: Shaw RSJ.
COUNSEL: Mr. Hacio, for the Plaintiffs
COUNSEL: Mr. Holervich, for the Defendants Gina Gustafson and Juanita Curle, Applicants
Mr. Matson, for the Defendants Holly Lebrun, Carl Gustafson and D.J. Gustafson Engineering Ltd. - Defendants
E N D O R S E M E N T
[1] The plaintiffs bring a motion for leave to appeal the order of Pierce J., granted on November 17, 2014, which denied the plaintiffs’ motion for appointment of independent counsel for the plaintiff corporations.
[2] On December 4, 2014, the initial return date of the motion for leave to appeal, Pierce J. adjourned the motion to January 29, 2015, to be spoken to, for directions of the court on how the leave motion should be heard, in light of the change to rule 62.02(2), which, effective January 1, 2015, provides:
(2) The motion for leave to appeal shall be heard in writing without the attendance of parties or lawyers.
[3] On January 29, 2015, Mr. Holervich, counsel for the defendants, Gina Gustafson and Juanita Curle, and Mr. Matson, counsel for the defendants, Holly LeBrun, Carl Gustafson and D.J. Gustafson Engineering Ltd., submitted that the motion for leave should be heard orally and heard that day. Mr. Hacio, for plaintiffs, submitted that the motion for leave “should be heard in writing”.
[4] The defendants submit three reasons why the motion should be heard orally.
[5] First, the defendants point to an e-mail from Mr. Hacio dated January 5, 2015 stating:
“It is our intention to argue our client’s motion for leave to appeal Justice Pierce’s decision on January 29, 2015, subject to both of you requesting an alternative date that is convenient to all counsel.
[6] Mr. Holervich replied by letter dated January 8, 2015:
“Further to your e-mail received January 5, advising of you intention to argue your client’s motion for leave to appeal on January 29, I write to confirm that both Mr. Matson and I are available and wish to have that motion argued on January 29, 2015.”
[7] On January 20, 2015, Mr. Hacio wrote to Mr. Holervich and Mr. Matson that the motion should be heard in writing under the rule change.
[8] The thrust of the defendants’ submission is that the parties agreed between themselves that the motion for leave would be heard orally and therefore that is how it should proceed.
[9] Second, the defendants state that to require the motion for leave to be heard in writing would be prejudicial because, based on Mr. Hacio’s e-mail of January 5, 2015, the defendants prepared for oral argument and incurred costs in doing so.
[10] Third, Mr. Holervich submits that notwithstanding the rule change, his clients want the opportunity to be heard orally and to have the opportunity to answer any questions that the judge hearing the motion might have. He submits that it is unfair to the defendants not to allow an oral hearing.
[11] In support of their submissions, the defendants refer to rules 1.04 and 2.03 which they say give the court jurisdiction to relieve from strict compliance with the new rule. Rule 1.04 provides that the rules “shall be liberally construed to secure the just most expeditious and least expensive determination of every civil proceeding on its merits.” Rule 2.03 provides:
“The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”
[12] The plaintiffs submit that the defendants knew of the rule change as early as December 4, 2014 when Mr. Holervich advised Pierce J. of the change. The plaintiffs submit that as of Mr. Hacio’s letter of January 20, 2015, before the defendants had filed their responding material, the defendants knew of the plaintiffs’ position that the motion should be heard in writing. Mr. Hacio submits that his e-mail of January 5, 2015 was in reference to his intention to orally address the question of directions, not to his intention to argue the motion orally.
[13] At the conclusion of submissions, I advised counsel of my decision that the motion for leave to appeal should be heard in writing. I granted leave to the defendants to serve and file by February 13, 2015 any revised factums that they considered to be necessary in light of the fact that the leave motion would be heard in writing. Any reply material from the plaintiffs was to be served and filed by February 20, 2015.
[14] I made no order as to costs. The plaintiffs were successful on the issue of how the motion for leave should be heard. However, I view Mr. Hacio’s e-mail of January 5, 2015 as reasonably leading the defendants to believe that he intended to orally argue the motion for leave. On the other hand, the defendants knew by January 20, 2015, before they served their material, that Mr. Hacio was now of the view that it should be heard in writing. More importantly, they knew in early December 2014 of the rule change.
[15] The parties got themselves into these procedural difficulties notwithstanding the instruction of Pierce J. on December 4, 2014, when the very issue of the rule change was raised by counsel, that the motion for leave was to be adjourned to January 29, 2015, to be spoken to for the express purpose of obtaining the court’s directions on the effect of the rule change. It could not be reasonably understood from the endorsement that the leave motion was being put over to January 29, 2015 for oral argument. The parties were to obtain directions.
[16] As stated by Belobaba J. in Onex Corp. v. American Home Assurance, 2009 CanLII 72052 (ON SC), [2009] O.J. No. 5526 (S.C.J.) at para. 5, as a general rule, procedural enactments apply retrospectively. They take immediate effect and apply to matters commenced before the new procedures come into force, unless the legislation provides otherwise. In Onex, Belobaba J. held that the plaintiffs’ motion for summary judgment, which was filed pursuant to old Rule 20 in February 2009, but which was to be heard in early 2010, would proceed under the new summary judgment procedure which took effect as of January 1, 2010. He held, at para. 14, that rule 1.04 did not give the motions judge power to set aside a newly enacted rule and, in its place, order that a repealed rule continue in force. “This would not be ‘construing’; this would be ‘legislating’.” He further observed at para. 15, that rule 2.03 was typically used to overlook a litigant’s technical breach of service or filing deadline or other instances of non-compliance where it was just to do so. He held that rule 2.03 does not allow the court to dispense with a newly enacted rule and restore a repealed provision.
[17] The defendants refer to Brandiferri v. Wawanesa Mutual Insurance Co. 2011 ONSC 3200. In that case, Lauwers J. (as he then was), after referring to Onex, found that although the new rules are to have retrospective effect, rules 1.04 and 2.03 gave the court jurisdiction to release a party from strict compliance with a new rule “where trial fairness so demands, as it does in this instance.” The issue in Brandiferri was whether expert reports, which were prepared before the changes to Rule 53 and which were therefore not Rule 53 compliant, were admissible. After finding that most of the prescribed elements of the new rule could easily be inferred from the language of the reports and that the reports contained nothing surprising and that there was no prejudice to the defendants who had the reports for years, Lauwers J. dispensed with strict compliance with the provisions of the new rule. He relied not only on rule 2.03, but also rule 53.03 which, as noted by J.W. Quinn J. in Basque v. Stranges, 2010 ONSC 5605, at para. 58, “contains sufficient flexibility to respond to specific situations when relief from retroactivity is necessary for a just result: sub-rule 53.03(2.2) contains the words, ‘unless the court orders otherwise’, sub-rule 53.03(3) speaks of, ‘except with leave of the trial judge’ and sub-rule 53.03(4) provides that times may be extended or abridged by a pre-trial judge or the trial judge or ‘by the court on motion’.”
[18] The instant case is markedly distinguishable from Brandiferri.
[19] The defendants knew full well on December 4, 2014, before they prepared their materials, that the new rule was coming into effect January 1, 2015. Their materials were not served and filed until after the rule change came into effect. They also knew that January 29, 2015 had been set by Pierce J. as a date on which the court would give directions on the issue.
[20] I give no weight to the submission that the new rule is “unfair” and that the defendants have a right to make oral submissions and take questions from the presiding judge. As stated by Belobaba J. in Onex, at para. 5:
“The Rules of Civil Procedure set out the procedures for the conduct of litigation.
The case law is clear that no one has a vested right in any particular form of procedure. The only ‘right’ one has is to have the matter disposed of according to the procedure in force at the time of disposition.”
[21] The parties themselves could not by agreement decide to ignore the new rule and reasonably expect the court to depart from the new procedure.
[22] There is no prejudice to the defendants similar to the prejudice that would have befallen the plaintiffs in Brandiferri, whose expert reports would otherwise have not been admissible at trial. The only prejudice that the defendants in the instant case can point to is that their clients may have incurred unnecessary expense in paying their counsel to prepare to argue the motion on January 29, 2015. However, any such prejudice arose from the parties failing to adhere to the endorsement of Pierce J. Moreover, the clients will not have to pay for the costs of their counsel actually arguing the motion for leave to appeal. The new procedure is designed to save parties costs and to reduce the court’s time in dealing with motions for leave.
Conclusion
[23] The motion for leave shall be heard in writing without the attendance of parties or lawyers pursuant to rule 62.02(2). There shall be no order as to costs.
____________________________________
The Hon. Regional Senior Justice D.C. Shaw
DATE: February 06, 2015
CITATIONCurle et al v Gustafson et al, 2015 ONSC 884
COURT FILE NO.: CV-12-0438-00
DATE: February 06, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALLAN CURLE, BRUCE JOHNSON,
JEANETTE JOHNSON, NORALL
GROUP INC. AND NORALL GROUP
CONTRACTING INC. – PLAINTIFFS
-and-
GINA GUSTAFSON, JUANITA CURLE,
HOLLY LEBRUN, CARL GUSTAFSON,
AND D.J. GUSTAFON ENGINEERING
LTD. C.O.B. AS AEGUS CONTRACTING
- DEFENDANTS
BEFORE: SHAW, RSJ
COUNSEL: Mr. Hacio, for the Plaintiffs
Mr. Holervich, for the Defendants Gina Gustafson and Juanita Curle
Mr. Matson, for the Defendants Holly Lebrun, Carl Gustafson and D.J. Gustafson Engineering Ltd.
ENDORSEMENT
Shaw RSJ.
DATE: February 06, 2015
/ket