CITATION: Harlson et al. v. Lewis et al, 2016 ONSC 1674
COURT FILE NO.: CV-14-145
CV-14-146
DATE: 2016-03-10
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: CV-14-145 Ted Harlson, Christine McHale, Gary McHale, Hetty VanHalteren and Jacob VanHalteren Plaintiffs
- and-
OPP Commissioner Chris Lewis, Sergeant Brad Moore, Inspector Phil Carter, Chief Superintendent John Cain and Her Majesty the Queen in right of Ontario, Defendants
AND BETWEEN: CV-14-146 Stuart Laughton, Ted Harlson, Gary McHale, Randy Fleming, Jacob VanHalteren and Doug Fleming Plaintiffs
-and-
OPP Commissioner Chris Lewis, Sergeant Brad Moore, Inspector Phil Carter, and Her Majesty the Queen in right of Ontario Defendants
BEFORE: The Honourable Mr. Justice R.J. Nightingale
Gary McHale, Ted Harlson, Christine McHale, Jacob VanHalteren, Stuart Laughton, Randy Fleming, Doug Fleming, self-represented plaintiffs appearing; Hetty VanHalteren, self-represented plaintiff not appearing
Domenica Polla, Counsel for the Defendants
HEARD: February 25, 2016
ENDORSEMENT
[1] At the outset of hearing the defendants’ motion, the plaintiffs requested an adjournment of that motion, an order for production of further information and documents refused and permitting additional cross-examinations of Mr. Bala (“Bala”) on his affidavit.
[2] I dismissed that motion after submissions and indicated my reasons would be provided with my decision on the defendants’ motion. These are those reasons.
[3] When the defendants’ motion, which was originally returnable May 5, 2015, came before me on December 15, 2015, the plaintiffs had not yet delivered any responding materials and no such documents were in the court file including any affidavit of service.
[4] The plaintiffs requested an adjournment then so they could do so. Mr. McHale (“McHale”), taking the lead in submissions on consent of all plaintiffs, stated he had served his responding affidavit by email on defendant’s Counsel more than once back on June 5, 2015 and after as well. Defendants’ Counsel however confirmed it was never received despite his advising McHale of that several times since June 5, 2015.
[5] The email dated June 5, 2015 from McHale suggests McHale served by email an unsworn affidavit and stated he was heading to Court to swear it and would send a sworn copy to defendants’ Counsel who immediately advised he did not receive the email. McHale stated the printed copy would be sent out on June 8 as it was being printed and bound. It was not.
[6] Neither McHale nor the other plaintiffs forwarded the printed copy of the plaintiffs’ motion record to defendants’ Counsel even though they asked for it on June 22 and 28 and McHale confirmed on June 29 that Bala’s cross-examination would be adjourned to a date after defendants’ Counsel received the plaintiffs’ material.
[7] No responding affidavits to the defendant’s motion on the merits were delivered by August 25 when the plaintiffs requested and were granted an adjournment of the defendant’s motion.
[8] Remarkably, at the hearing on December 15, McHale confirmed to the Court that the plaintiffs had not served a printed copy of their motion record on defendant’s Counsel and that he did not even have a copy with him or for the Court although he said he had one at his home. There was no responding record of the plaintiffs in the court file. Moreover, four of the plaintiffs did not even show up in court for the motion. The Court was advised they didn’t do so believing that the matter would be adjourned based on their conversations with McHale.
[9] I held the motion down briefly and ordered McHale to go home and bring to the Court the affidavit he said he had already served by email on the defendants’ Counsel.
[10] When he returned, McHale indicated to the Court that he had retrieved his documents which affidavit he confirmed was not complete with all the exhibits and had never been sworn. One wonders how the plaintiffs would expect that to be proper service even if they had been emailed. Again, defendants’ Counsel indicated to the Court that he had never received those documents by email or printed copy.
[11] I adjourned the motion granting an indulgence to the plaintiffs but ordered that they serve their responding affidavits and motion record by December 21, 2015 so that this motion could be heard on the merits. I also granted McHale’s request for cross examinations despite the plaintiffs’ delays since early May 2015 noted below over the defendants’ objections. I imposed timelines for the plaintiffs’ cross examination of Bala of four hours which I set for January 22, 2016. I also ordered that the plaintiffs could not serve documents by email without the defendants’ Counsel’s prior written consent.
[12] By courier dated April 22, 2015, the defendants served their motion record returnable May 5. That motion was adjourned to June 29 and then to August 25 and then to December 15 as the plaintiffs had not delivered their responding record and requested an adjournment each time. On August 25 the plaintiffs’ request was also primarily because of McHale’s health issues.
[13] Moreover, McHale’s affidavit sworn December 21, 2015 had changes from his draft affidavit that he had not delivered before. The remaining plaintiffs now delivered the same day individual short affidavits they had not delivered before.
[14] The plaintiffs’ position is:
(a) that further cross examinations of Bala should be allowed as his credibility is in issue, in particular that he wasn’t being truthful in his affidavit and was misleading the Court with respect to his evidence that he didn’t deliver the statements of defence as he believed that amended statements of claim from the plaintiffs were forthcoming; and,
(b) that Bala had no authority to deliver statements of defence as the defendants personally did not speak to him and instruct him or consent to his defending these actions. On Bala’s cross-examination, McHale requested copies of the logs of the individually named defendants regarding the dates of their communications with Bala personally concerning their intention to defend these actions. Bala objected to production of the records based on solicitor-client privilege and relevance but then on his cross examination and by way of undertaking provided the names of the people who he had spoken to and when and who provided him with instructions to accept service of the statements of claim and defend the actions on behalf of all of the defendants including the Crown. McHale submitted Bala’s doing so was maintenance.
[15] The plaintiffs’ position has no merit.
[16] Firstly, the questions were satisfactorily answered as noted in the chart of undertakings and answers of Bala found at tab 8 of McHale’s materials.
[17] Secondly, the defendants need not personally and individually provide instructions to Bala to defend these actions as it is certainly appropriate for others within the litigation risk management departments of the defendants to provide those instructions on their behalf as was done in this case which included on behalf of the Crown. The Rules do not provide for plaintiffs to challenge the authority of defendants’ Counsel unlike Rule 15.02 authorizing a challenge of the plaintiffs’ lawyer’s authority to commence an action.
[18] Thirdly, there is no basis for McHale’s submission that Bala was not being frank in his evidence and was intentionally misleading the Court in his affidavit that stated that statements of defence were not filed as he understood amended statements of claim would be forthcoming. Bala stated that he read the statements of claim not long after they were received in his office but couldn’t remember now exactly when or what he remembered of them.
[19] McHale made submissions that the statements of claim that were actually served had already been amended as a result of Gordon J’s order in the other actions and that there was no need to await further amended statements of claim.
[20] However, the plaintiffs never stated that nor did they dispute Bala’s account of the contextual history of all these actions and the reason for his understanding in their affidavits or on their cross-examinations.
[21] Moreover, the amendments in the statements of claim because of Gordon J’s order in the other actions were not satisfactory to the defendants as McHale suggests, but rather two further amendments were required which were still not satisfactory. A further motion was brought before Gordon J earlier this month in February 2016 to deal with that outstanding issue which decision is under reserve.
[22] Accordingly, the fact that the plaintiffs’ statements of claim in these actions may have been initially “amended” after the original notices were served does not undermine Bala’s evidence about that issue.
[23] Lastly, the hearing of this motion has been delayed much too long; all of which is because of the plaintiffs’ failure since early May 2015 to deliver responding materials and their requests for adjournments including because of McHale’s health issues raised on August 25. They were granted the opportunity to file responding affidavits on December 15 but when they did so on December 21, they still did not dispute Bala’s affidavit evidence of his understanding and reasons for the initial non-delivery of statements of defence.
[24] The Court is required under Rule 1.04 to give directions that are proportionate to the importance and complexity of the issues and to the amounts involved in both actions and to liberally construe the rules to secure the just, most expeditious and least expensive termination of every civil proceeding on its merits.
[25] In this case, that includes making the decision on the merits of the defendants’ motion now given the lack of substance and merit to the plaintiffs’ request for a further adjournment, production of documents and a further cross examination.
[26] The plaintiffs’ motion is dismissed. Costs of this motion will be resolved as part of the disposition of costs in the defendants’ motion.
“Nightingale, J.”
The Honourable Justice R.J. Nightingale
Date: March 10, 2016