Court File and Parties

Court File No.: CV-12-2436 Date: 2016-07-07 Superior Court of Justice – Ontario

Between: PHILROY GREEN, ANGELA GREEN and EFORD GREEN, Plaintiffs And: MIGUEL ALLEN, CHADWICK GERMAIN, PHYLLIS MAH, DANNY MAH, THE CORPORATION OF THE CITY OF BRAMPTON, WILLIAM ANTHONY WADE and MARY AGNES WADE, Defendants

Counsel: Robert M. Ben, for the Plaintiffs Andrew E. Steinman, for the Defendants, William Anthony Wade and Mary Agnes Wade

Heard: June 9, 2016, at Brampton, Ontario

Before: Price J.

Reasons For Order

NATURE OF MOTION

[1] In 2008, William and Mary Wade owned a home near an intersection in Brampton, Ontario, where a serious motor vehicle collision occurred on September 5, 2008. Philroy Green, a passenger in one of the vehicles, is said to have sustained serious injuries in the collision, including a traumatic brain injury. Mr. Green and his parents have brought the present action to recover damages, which their lawyers assess at $17 million. They have named Mr. and Ms. Wade as defendants, alleging that there were large mature trees on the Wades’ property which obstructed the visibility of the intersection and contributed to the collision.

[2] In April 2015, Regional Senior Justice Daley (“R.S.J. Daley”) held a pre-trial conference in the action, which is now to be tried, with other actions arising from the same collision, in March 2017. At the conference, the Wades’ lawyer stated that his clients intended to bring a motion for summary judgment dismissing the action against them, on the ground that owners of private property do not owe a duty of care to motorists on adjacent roads. The Greens’ lawyer stated that his clients would oppose such a motion. Justice Daley ordered that any pre-trial motions be heard by the end of December 2015.

[3] In May 2015, the Wades’ lawyers consulted the Trial Office of the Superior Court in Brampton, who offered to schedule the motion on December 23, 2015, for a hearing of up to two hours in length. The Wades’ lawyers insisted on a three hour hearing, and by June 22, 2016, the dates for motions in December were no longer available. The Wades did not notify the Greens’ lawyer until December 21, 2015, that the motion would not be proceeding on December 23rd. They also did not move to extend the December 31, 2015, deadline for bringing their motion until May 23, 2016.

[4] The earliest that a motion for summary judgment can now be heard is November 18, 2016. That date is only four months before the date when a 3 week trial of liability, being the first stage of a bifurcated trial of multiple related actions, is scheduled to begin. A 2.5 month trial of damages, being the second stage of the bifurcated trial, will follow. The court must determine whether to extend the deadline set by Justice Daley, and to permit Wades’ motion for summary judgment to be heard on November 18th. For the reasons that follow, I find that the deadline cannot be extended on terms that would be fair to the Greens.

[5] Additionally, I find that permitting the proposed motion for summary judgment to proceed would not be in the interests of justice. The issue of whether owners of private property owe a duty of care to motorists on adjacent roadways to avoid hazardous obstructions of visibility is a novel one that could have far-reaching implications beyond the litigants in the present action. This demands that a high priority be given to ensuring that a determination of liability in the present case is made based on a full evidentiary record. This is less likely to be achieved in a motion for summary judgment than in the trial of all of the liability issues.

BACKGROUND FACTS

[6] A two-vehicle motor vehicle collision occurred at the intersection of Creditview Road and Wanless Road in Brampton on September 5, 2008. The main plaintiff in the present action, Philroy Green (“Mr. Green”), was a 27 year old backseat passenger in a car driven northbound on Creditview Road by the defendant Miguel Allen. Mr. Allen’s car struck a pick-up truck which the defendant, Phyllis Mah, was driving westbound on Wanless Road, which was turning left, across Mr. Allen’s lane of travel, to drive south on Creditview Road.

[7] The collision resulted in eight actions involving approximately ten lawyers. The Greens’ lawyer, Mr. Ben, states that Mr. Green sustained serious injuries in the collision, including a traumatic brain injury, facial, jaw, and dental fractures, and serious bilateral ankle and foot fractures. He assesses Mr. Green’s damages at $17 million.

[8] The Wades owned a home on the southeast corner of the intersection where the collision occurred. The Greens allege that a number of large mature trees were growing along the west side of the Wades’ property, adjacent to Creditview Road, which obstructed the view of traffic in the intersection, and contributed to the collision. They argue that the Wades ought to have taken steps to remedy the problem.

[9] The City of Brampton designed the layout of the intersection. The Greens allege that the City improperly positioned the stop sign for westbound Wanless Road, where Ms. Mah stopped her pick-up truck immediately before the collision. They say that when Ms. Mah was stopped at the stop sign, her view of northbound traffic on Creditview Road was obstructed because of the trees on the Wades’ property, which contributed to the collision. The Greens have named the Wades as defendants in their action.

[10] R.S.J. Daley conducted a preliminary pre-trial conference in the actions on April 21, 2015. The Wades’ lawyer indicated at the pre-trial conference that his clients intended to bring a motion for summary judgment dismissing the Greens’ action against them. The Greens’ lawyer replied that his clients would oppose the motion. Justice Daley ordered that pre-trial motions be heard before the end of 2015.

[11] Later on April 21, 2015, the Wades’ lawyer, Lynn Turnbull, wrote to counsel in all the related actions as follows:

Dear Counsel:

As you are aware, it is my clients’ intention to bring a motion for summary judgment, seeking an order dismissing the action against my clients. At the Trial Management Conference before Mr. Justice Daley on April 21, 2015, counsel for the City of Brampton and counsel for the Greens indicated that their clients would be opposing this motion. For scheduling purposes, I need to know whether any of the other parties intend to oppose the motion. Would you please provide me with your position by the end of the week? On Monday, April 27, my assistant will be contacting the assistants of those lawyers who are instructed to oppose the motion, in order to schedule a date convenient to all. [Emphasis added]

[12] Between April 21 and May 25, 2015, counsel for most parties in the actions indicated that they would not oppose a motion by the Wades for summary judgment dismissing the actions as against them. The following parties did not indicate that they would consent:

1. Miguel Allen, the driver of the vehicle in which Mr. Green was a passenger;
2. Mr. Green and his parents, Angela and Eford Green;
3. Dane Currithers, another passenger in the Allen vehicle, whose lawyer indicated that he would not participate in the motion, and would abide by the result of the Wades’ motion in the Greens’ action; and
4. The City of Brampton.

[13] On May 22, 2015, Kesha James, Lynn Turnbull’s assistant, contacted the Brampton Trial Office and was advised that December 23, 2015, was available for a hearing of the summary judgment motion. Later on May 22, 2015, Ms. James wrote to the lawyers for Miguel Allen and the City of Brampton, with a copy to the Greens’ lawyer, Mr. Ben, indicating that her office had been given December 23, 2015, as an available date for the motion. She wrote:

Dear Counsel,

This follows my email of May 19, 2015, with respect to scheduling a motion for summary judgment, seeking an order dismissing the action against the Wades. According to Mr. Justice Daley’s endorsement dated April 30, 2015, all motions in these actions shall be heard prior to year-end 2015. As such, we have been provided with December 23, 2015, as an available date for our motion. As you indicated you would oppose same, kindly contact the undersigned to advise of your availability. [Emphasis added]

[14] Mr. Ben replied on June 17, 2015, advising that his office was available for the hearing of the Wades’ motion on December 23, 2015. He added, “Once the date is confirmed kindly advise us of your proposed timetable for the delivery of motion materials.”

[15] Ms. James apparently contacted the Trial Office on June 18, 2015, to schedule a 3 hour motion on December 23, 2015. She was informed by Jennifer Marks, an Assistant Trial Coordinator in Brampton, that she was only able to book motions for two hours on December 21 or 23, 2015, which were the only remaining long motion dates in 2015.

[16] Ms. James insisted that 3 hours were required and referred to the endorsement of R.S.J. Daley, which required that pre-trial motions in these actions be heard by December 31, 2015. When informed that there were no dates in 2015 when a 3 hour motion could be accommodated, Ms. James wrote to Ms. Marks at 3:08 p.m. as follows:

Hello Jennifer,

Thank you for speaking with me today. This will confirm that there are no further dates available in 2015 for motions and the Court is not yet booking in 2016.

As you are aware, we have an endorsement from J. Daley advising that all motions in these matters must proceed prior to year-end. A copy of the endorsement is attached. You advised you would refer this matter to the Trial Coordinator for further handling. I appreciate your assistance in this regard. [Emphasis added]

[17] Ms. Turnbull replied the same day, at 3:19 p.m., as follows:

Kesha,

Just to clarify, your request was for a 3 hour motion date. What is currently being offered are two dates, December 21 and 23, 2015, for which we can book only 2 hour matters; as such and based on Justice Daley’s endorsement, I will be referring this to the Trial Coordinator upon her return tomorrow. [Emphasis added]

[18] On June 22, 2015, Ms. Marks wrote further to Ms. James as follows:

Kesha,

Justice Daley’s order dates back to April and the dates of December 21 and 23rd, 2015, indicated earlier for 2 hour motion were the only dates we had available. Unfortunately, those dates are no longer available. [Emphasis added]

[19] The Wades’ lawyers did not inform the Greens’ lawyer that on June 18, 2015, the Trial Office offered them a 2 hour hearing on December 23, 2015, when the Greens’ lawyer was available, but that they had insisted on a 3 hour hearing, until the December dates ceased to be available. They did not copy Mr. Ben with their correspondence with the Trial Office, or notify him, until December 21, 2015, that they would not be proceeding with their motion on December 23rd.

[20] On September 30, 2015, Lisa Weiss, the Regional Manager, Judicial Services, for Central West Region, which includes Brampton, wrote to counsel in all of the related actions that R.S.J. Daley had granted a fixed trial date for the actions, on March 20, 2017, in Kitchener, and that 3.5 months would be set aside in the regional schedule to accommodate that trial date. Upon receiving the fixed trial date, counsel in the related actions agreed that the trial would be bifurcated, and that the trial of the liability issues, expected to last 3 ½ weeks, would proceed first, with the trial of damages expected to last 2 ½ months to follow.

[21] On December 21, 2015, two days before the date Mr. Ben had indicated he was available for a hearing of the Wades’ motion, the Wades’ lawyer, Andrew Steinman, wrote to him as follows:

Dear Counsel:

My office is bringing multiple summary judgment motions to have the above-noted actions dismissed as against our clients, the Defendants, William Anthony Wade and Mary Agnes Wade. Of the eight offices involved in the actions in addition to mine, seven offices have indicated an intention to not oppose the said motions so long as my office does not pursue costs.

At this juncture your office remains the only one that seems to have suggested an intention to oppose the relief sought. In light of this, can you please provide a list of your availability between January and July, 2016?

I look forward to hearing from you. [Emphasis added]

[22] Mr. Ben replied on December 23, 2015, as follows:

Dear Mr. Steinman:

Thank you for your letter dated December 21, 2015.

My review of the correspondence in this matter indicates that the plaintiff, Allen, and the defendant, City of Brampton, also expressed an intention to oppose any summary judgment motion by your clients. In any event, the endorsement of Regional Senior Justice Daley dated April 30, 2015, directed that any motions should be heard prior to the end of this year. Moreover, it is my understanding that all parties have agreed to bi-furcate the trial of liability and damages, which I would have thought would have obviated the need for your proposed summary judgment motion. I am happy to discuss this with you further. [Emphasis added]

[23] On February 11, 2016, in response to an e-mail from the City of Brampton’s lawyer, David Boghosian, the Greens’ lawyer, David MacDonald, wrote to Mr. Boghosian, in part, as follows, sending a copy to the lawyers in the related actions:

We are content to consent to the dismissal of all claims as against the Wades on the condition that no parties assert at trial by way of evidence elicited on cross or in chief, from lay or expert witnesses, that the Wades through any act, omission or neglect somehow caused or contributed to the accident. For example, should the evidence at trial be that the trees on the boundary of the Wades’ and municipal property be found to be a visual obstruction, there will be no evidence or assertion by the City or its counsel that the City was unable to take any action to remove or reduce the visual obstruction of the trees.

I would appreciate receiving confirmation of all parties’ positions in this regard. Should one or more of the parties be unwilling to undertake same, then we must accept that there is either the intention and/or risk that at trial one or more parties will assert that the Wades caused or contributed to the accent. We would then be in a position of having to oppose any Summary Judgment Motion being brought by the Wades. [Emphasis added]

[24] Mr. Steinman wrote his own letter to the other counsel on February 29, 2016, asking for their response to Mr. MacDonald’s letter. On March 2, 2016, the City of Brampton’s lawyer, Mr. Boghosian, replied to Mr. MacDonald’s letter. He refused to provide the undertaking Mr. MacDonald required as a condition to consent to a motion for summary judgment by the Wades. He wrote:

Mr. MacDonald’s letter unfortunately seeks us to go further and agree that the City will not assert that it was unable to take any action to remove or reduce the visual obstruction of the trees. As a matter of fact, the City did not have any tools by which it could lawfully remove trees or portions of trees located on private property. Mr. Parks, the City’s representative on its Examination, was specifically questioned about what tools the City had to address trees on private property and his evidence was that the City’s zoning by-law does not restrict the location of trees in any manner and the City’s traffic by-law contains no restrictions related to trees on private property interfering with sightlines.

In other words, the City did not have any tools available to it to cut down the trees located on the Wades’ side of the property line.

In summary, we will not limit the scope of the City’s defence by agreeing to a state of affairs that is untrue ….

In summary, we are not prepared to agree with the second sentence of the second paragraph on the first page of Mr. MacDonald’s February 11 letter.

[25] The Wades’ lawyers did not immediately move to extend the deadline set by R.S.J. Daley, or seek leave to bring a motion for summary judgment. Instead, Mr. Steinman wrote to Mr. MacDonald and Mr. Ben again on March 3, 2016. He stated, in part:

In light of Mr. Boghosian’s correspondence of this morning (attached) and further to my correspondence faxed on Monday (also attached), can you please advise whether or not you will be opposing our clients’ proposed summary judgment motions?

[26] After follow-up letters from Mr. Steinman on March 10, March 21, April 7, and April 10, Mr. MacDonald replied with a lengthy letter dated April 14, 2016, reiterating the position his clients had taken since the pre-trial conference with Justice Daley a year earlier, that they would be opposing a motion by the Wades for summary judgment. He provided a detailed explanation for the Greens’ position, commenting on the City’s position, as stated by Mr. Boghosian, as follows:

One possible defence which the City may attempt to rely upon is that the City was not in a position to remove the obstruction as a result of the fact that the trees were on your clients’ property and as such not within the sole power and control of the City to remove the obstruction (i.e., that the City would have needed to seek and obtain the consent of your clients and/or other involvement of your clients in dealing with the obstruction).

Mr. Boghosian himself alerts us to the reasonable likelihood that the City will take such a position at the trial of this matter in that he is unwilling to undertake that, at trial, the City will not assert that it was unable to take any action to remove or reduce the visual obstruction of the trees.

All of this is by way of preamble to our position on your proposed summary judgment motion. We will be opposing your motion….

[27] On May 26, 2016, Mr. Steinman wrote yet a further letter to all counsel with regard to the Wades’ intention to bring a motion for summary judgment. As it was already five months beyond the deadline set by R.S.J. Daley for the bringing of motions, he acknowledged, belatedly, that the bringing of a motion was “time-sensitive”. He stated, in part:

We will be bringing the motion seeking leave and directions either Thursday the 26th or Friday the 27th of May 2016. Please advise us immediately if you intend to oppose our motion for leave and directions, and whether there are any issues with respect to availability. This is a time-sensitive matter.

[28] Finally, on May 29, 2016, the Wades brought the present motion to extend the deadline which R.S.J. Daley had set almost a year earlier, which required all pre-trial motions to be heard by December 31, 2015, and for directions regarding the motion. The motion was made returnable June 10, 2016, one of the three days that week when, owing to the limitation of judicial recourses in Brampton, only routine motions that can be argued in less than one hour were permitted. A Regional Practice Direction required that dates for motions requiring an hour or more to argue be scheduled by special appointment, obtained from the Trial Office many months in advance.

[29] On June 10, 2016, I advised counsel who attended court to argue the present motion that, although they had estimated that the hearing would require 57 minutes, it was my view that it would require more than an hour, having regard to the fact that the material consisted of a two volume Motion Record, with 30 tabs containing 523 pages, a two-volume Responding Motion Record, with 28 tabs, containing approximately 300 pages, a moving party’s factum of 14 pages, a responding party’s factum of 32 pages, and Books of Authorities containing 9 judicial decisions. I urged counsel to attend at the Trial Office to obtain a special appointment for a long motion. However, Mr. Steinman insisted that the motion would be argued in less than an hour, and stated that it was urgent that the matter proceed that day.

[30] Based on Mr. Steinman’s assurance, the court permitted the motion to proceed that day. It began the hearing at 3:30 p.m., after shorter motions had been heard.

[31] When the Wades’ counsel, Mr. Steinman, opened his argument, and the court began inquiring as to why his clients had delayed bringing the motion for almost a year, Mr. Steinman asked for an opportunity to consult his file and seek instructions. The court recessed at 3:45 p.m. for that purpose. When court resumed at 4 p.m., Mr. Steinman requested an adjournment so that he could supplement his clients’ evidence.

[32] The court refused Mr. Steinman’s request, on the ground that his clients had already delayed bringing the motion for five months beyond the deadline imposed by R.S.J. Daley, had brought it on a day when only routine motions requiring less than an hour to argue were permitted, and that when that morning, the court had questioned whether argument could be completed in under an hour, and had urged him to attend at the Trial Office to obtain a special appointment for a future date, he had insisted that the motion proceed that day. The court held that, in these circumstances, it would be unfair to the Greens, whose counsel had been waiting from 10 a.m. to 4 p.m. for the motion to be heard, to adjourn the motion at that point, and impose further delay and expense on them, to permit the Wades to remedy deficiencies in their material.

[33] The Wades’ motion to extend the time for bringing motions, and to consolidate the motions in the related actions, and for directions in connection with the motions, was heard fully on June 10th. Mr. Steinman’s argument alone, after resuming at 4:00 p.m., took 53 minutes, and the argument of both counsel concluded at 5:30 p.m., double the time that Mr. Steinman had assured the court that the hearing would require.

ISSUES

[34] The court must determine whether to extend the deadline for pre-trial motions ordered by R.S.J. Daley, to permit the Wades to bring a motion for summary judgment for hearing on November 18, 2016.

PARTIES’ POSITIONS

The Wades’ position

[35] The Wades state in their factum that, “The Moving Parties now wish to proceed by way of summary judgment, to extricate themselves from the companion actions.” They rely on the fact that, of all counsel involved in the actions, only the Greens opposed their motion. They argue that the proposed motion “was originally scheduled to be heard on December 23, 2015. This was arranged in May 2015.”

[36] The Wades’ factum continues as follows:

On June 22, 2015, Jennifer Marks, Assistant Trial Coordinator at the Brampton Superior Court of Justice, advised that the December 23, 2015, motion date was no longer available. This was further to a series of emails where Ms. Marks discussed with the office of counsel for the Moving Parties that no further motion dates were available in 2015 for the hearing of motions longer than two hours, and that in any event, the December 23, 2015, date that was previously provided could only accommodate a motion of up to two hours in length.

[37] The Wades further state, “While it appeared that the actions against the Moving Parties may be resolved on consent further to Mr. Steinman’s December 21, 2015, letter and the ongoing correspondence among counsel, it became clear on April 14, 2016, that the Moving Parties would not be released from the actions on Consent.”

[38] The Wades submit that the main argument that they intend to make in the proposed summary judgment motion is that they did not owe Mr. Green a duty of care, which is a legal question. They argue that the summary judgment motion, if successful, will resolve the issues relating to them in their entirety.

[39] The Wades argue that the proposed motion(s) serve the principles of proportionality, timeliness, and affordability, in that the issue of the duty of care owed by them will not require the complete evidentiary record of the liability trial. They submit that forcing them to be involved in the trial would add unnecessary time and expense to the litigation, by adding to the number of witnesses and the length of their testimony.

[40] The Wades submit that the deadline imposed by Justice Daley can be extended on terms that are just, causing no prejudice to the Greens or the parties in the related actions. They say that their counsel “acted in good faith and promptly with respect to the scheduling of the summary judgment motion(s) once Daley RSJ instituted the prescribed deadline to bring motions, being December 31, 2015.” They say that they made “significant efforts to resolve the issue of them being released from the companion actions without the need for the intervention of the Court” and that “once their counsel was advised of the definitive position of counsel for the Plaintiffs in this action, they moved promptly….”

The Greens’ position

[41] The Greens submit that it is not appropriate to determine a novel question of law on a motion for summary judgment, especially where the decision will have far reaching effects beyond the immediate litigation. They submit, moreover, that the Wades’ liability is not a pure question of fact, but an issue of mixed fact and law, and that there are facts in dispute, including the following:

(a) whether the trees were on the Wades’ property; (b) whether the Wades knew or ought to have known that the trees created a hazard to drivers on the adjacent highway; (c) whether the trees, in fact, obstructed Ms. Mah’s view and contributed to the collision; and, (d) whether the Wades, or the City of Brampton, or both, were responsible to remove the hazard that the trees created.

[42] The Greens say that if a mini-trial is held for the purpose of resolving the disputed issues of fact, it will duplicate the evidence to be given in the liability trial, and risk inconsistent findings of fact. In any event, they submit that permitting the motion for summary judgment to proceed in November 2016 would jeopardize the timing of the liability trial scheduled to take place four months later, particularly given the inevitability of an appeal by the unsuccessful party on the proposed motion.

ANALYSIS AND EVIDENCE

a) General Principles to be applied

[43] The extension of times prescribed by the rules or an order is governed by Rule 3.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It provides:

3.02(1) Subject to sub-rule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. (2) A motion for an order extending time may be made before or after the expiration of the time prescribed. (3) An order under sub-rule (1) extending or abridging a time prescribed by these rules and relating to an appeal to an appellate court may be made only by a judge of the appellate court.

[44] In Humberplex Developments Inc. v. TransCanada Pipelines Ltd., [2011] O.J. No. 1587, (Ont S.C.J. – Master), at para. 67 (“Humberplex”), Master Short considered criteria to evaluate if there are “just terms” upon which an extension may be granted under rule 3.012. He concluded that these criteria “…include explanation, prejudice, and length of delay.”

[45] In Emberley v. Kingston General Hospital, [2012] O.J. No. 4886, (Ont S.C.J.), at para. 11, Justice Quigley approved the reasoning of Master Short in Humberplex. He added, “In deciding whether to grant [an extension under rule 3.02], the court must consider whether the extension would advance the just resolution of the dispute, without prejudice or unfairness to either party.”

[46] As Master Short observed in Humberplex, at para. 15, the court has inherent jurisdiction, guided by the Rules, to control its own process. In applying the Rules, the court is guided by Rule 1.04 and 1.05. They provide:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

b) Length of delay

[47] In the present case, the Wades’ delay in moving to extend the time for bringing the motion for summary judgment has been substantial, having regard to the following facts:

1. The Wades and their counsel did not announce their intention to move for summary judgment until the pre-trial conference on April 21, 2015, more than four years after the Claim was amended.
2. R.S.J. Daley, at the pre-trial conference on April 21, 2015, set a deadline of December 31, 2015, for bringing pre-trial motions, eight months in the future.
3. The Wades delayed a further month before seeking to schedule their motion. At that time, there were still dates available on December 21 and 23, 2015, for two-hour motions.
4. The Wades’ counsel delayed a further eleven months, from June 22, 2015, when the Trial Office informed them that there were no longer any dates available in 2015 for the hearing of a long motion, until May 27, 2016, when the Wades delivered their motion to extend the time for moving for summary judgment.
5. The earliest date when a motion for summary judgment can be heard is now November 18, 2016, eleven months after the deadline set by the R.S.J. Daley for the hearing of pre-trial motions.
6. In the interval since April 21, 2015, when the deadline for pre-trial motions was set, the actions have been set down for trial, a date has been scheduled for a 3.5 month trial, and the parties and their counsel have consented to a bi-furcation of the trial, with a 3-week liability trial to take place on March 20, 2017. These steps have compounded the impact that bringing a summary judgment motion in November 2016 would have.

c) Explanation for the delay

[48] I am not satisfied with the explanation that the Wades and their counsel have offered for their delay. Counsel could have scheduled the motion to be heard on December 23, 2015, had they accommodated themselves to the two hours that the Trial Office offered them, as late as June 18, 2015. Instead, they insisted on a three hour hearing, and thereby lost the opportunity to have the motion heard within the deadline imposed by the R.S.J Daley.

[49] The Wades cannot reasonably argue that they did not have a “definitive” indication from the Greens until April 14, 2016, that they would be opposing the Wades’ motion. The Greens’ counsel indicated definitively at the pre-trial conference on April 21, 2015, that they would oppose the motion. They reiterated that position on June 17, 2016, when Mr. Ben informed Ms. Turnbull’s assistant, Ms. James, that he was available for the hearing of the motion on December 23, 2015, one of the dates she had offered.

[50] It was only in response to persistent requests by the Wades’ solicitors that they answer the same question that they had already given twice that Mr. Ben set out the condition the Greens would require for consenting to the proposed motion. The reason for the condition was obvious and straightforward. It was in the interests of other defendants to have the action dismissed against the Wades, in order more readily, and without their opposition, to blame the collision on them. Predictably, the City of Brampton’s lawyer refused to undertake that he would not do this and, equally predictably, the Greens, having regard to the City’s refusal, re-stated their intention to oppose the Wades’ motion. The Greens never changed their position, and the condition they offered was calculated to cause the City’s lawyer to demonstrate the rationale for that position, and its justification.

d) Prejudice that would result from the extension of time

[51] Extending the time within which the Wades were required to bring their motion would certainly prejudice the Greens. This court reviewed, in Farrell v. Costco Wholesale, 2015 ONSC 7783, in 2015, the reasons why delay, by itself, can cause prejudice. I adopt the analysis set out in paragraphs 15 to 37 of those reasons.

[52] Justice Kurisko, in Dubinsky, in 1999, reviewed the jurisprudence interpreting prejudice in the context of the discretion the court exercises as to whether to extend the time for bringing third party claims. He noted the Court of Appeal’s approval of the broad definition that Master Donkin gave in Gotaverken Energy Systems Ltd. v. Canadian Great Lakes Casualty & Surety Co., in 1985 to the word “prejudiced”, as used in Rule 29. In that case, Master Donkin refused leave to issue a third party claim on the ground that issuing such a claim at that late stage on the proceeding would delay and lengthen the trial. He stated:

It also appears to me that in any case at all where a third party is joined, then there is some inconvenience and some additional work required by a plaintiff because the third party may raise new defences, attend on examinations, require certain people to be examined who might not have been required by the original defendant, will participate in the trial and may therefore lengthen the trial, etc. It is my view that the word “prejudice” in r. 29.02(1)(b) contemplates more than that type of inconvenience. It seems to me that r. 29.02(1)(b) can be interpreted in either of two ways. It can mean that if prejudice is found to the plaintiff, then the order should not be granted, no matter what the other factors are. It can also mean that an order is to be granted unless there is prejudice to the plaintiff and if there is prejudice to the plaintiff, then that prejudice and other factors such as the desire to have matters litigated only once are to be balanced and the Court is then to decide whether the order should be granted or not.

[53] Justice Kurisko, in Dubinsky, refused to grant the defendant in Dubinsky leave to issue a third party claim based on his finding that the prejudice that would result outweighed the desirability of having the issues in the third party claim tried at the same trial as the issues in the main action. He stated:

In my view, in this case, the combination of the following facts leads me to believe that the plaintiff is sufficiently prejudiced that the order should not be made even if other factors are taken into account; namely, the time since the institution of the action, the difficulties which have been encountered with respect to pleadings, the length of the examinations and the probable length of further examinations, the time which it would take the bank to prepare its defence in the main action (leave alone its defence to the third party proceedings), the quantity of material that must be reviewed by the bank and the consequent expectation that the bank would move for postponement of the trial. Gotaverken Energy Systems Ltd., supra, at para. 46

[54] In the present case, allowing the Wades’ motion for summary judgment to proceed in November 2016 would very likely prevent the liability trial from proceeding in March 2017, as scheduled. There is a likelihood that judgment on the motion would be reserved and, when issued, would likely be appealed.

e) The risk of inconsistent findings of fact

[55] Allowing a motion for summary judgment to proceed would create a substantial risk of inconsistent findings of fact in the summary judgment motion and at trial. Before making a determination as to whether there is a genuine issue of liability for trial, the court would be required to consider the disputed allegations of the parties on the following issues:

1. Whether the trees were on the Wades’ property, on the City of Brampton’s property, or on the property boundary.
2. Whether the Wades knew, or ought reasonably to have known, that the trees posed a hazardous visual obstruction to drivers on the adjacent highway.
3. Whether the Wades had sole responsibility, or joint responsibility with the City of Brampton, to remove the trees or otherwise remedy the visual obstruction.
4. Whether Ms. Mah entered upon her left turn from the stop sign, where it is alleged the trees would have obstructed her view of oncoming traffic, or whether she eased into the intersection first, beyond the tree line.

[56] In order to make the necessary findings of fact, the court would need to hear the following evidence:

1. Evidence from the Wades and from the City of Brampton as to the location of the trees;
2. Evidence from the City’s accident reconstruction engineer as to whether the trees obstructed Ms. Mah’s view of northbound traffic on Creditview Road, and contributed to the collision, given the speed of Mr. Allen’s car;
3. Evidence from Ms. Mah as to the position from which she entered her turn, which would require consideration of the inconsistencies that are alleged to exist between a statement she gave to police and her later evidence on examination for discovery;
4. Evidence from the police officer who took Ms. Mah’s statement shortly after the accident;
5. Evidence of Ms. Mah’s accident reconstruction engineer as to whether Ms. Mah “eased out” to a position beyond the trees.

[57] The evidence that would be required in the mini-trial that would be required as part of a summary judgment motion would duplicate evidence to be given at the liability trial scheduled to take place in March 2017. The duplication of that evidence would create a risk of inconsistent findings of fact between the two proceedings, which could bring the administration of justice into disrepute. For example:

(a) The judge at the motion for summary judgment could find that the trees were on the Wades’ property, and the judge at the liability trial could find that they were not. The City’s survey of the intersection appears to indicate that the line of trees was located on the Wades’ property and/or on the property boundary line, but the Wades have not admitted that they were on either. On examination for discovery, Mr. Wade testified that he never tended to or maintained the trees because he thought it was the City’s responsibility. At the same time, he admitted that he regularly cut the grass up to the edge of Creditview Road; (b) The judge at the motion could find that Ms. Mah’s view of northbound traffic was not obstructed, and the judge at the liability trial could find that it was obstructed. The plaintiffs allege that the trees were within the “visibility triangle” at the intersection, in breach of the relevant Brampton by-law, which requires that no trees, shrubs, etc. be within a prescribed distance from the corner. The expert opinion of the Wades’ accident reconstruction engineer is that if Ms. Mah is found to have entered her turn from the stop sign, as opposed to easing out into the intersection before making her turn, the trees would have significantly obstructed her view of northbound traffic on Creditview Road. Mr. Wade testified that his view of northbound traffic on Creditview was not obstructed by the trees on the edge of his property, but his accident reconstruction engineer’s evidence may contradict this.

[58] The issue of whether owners of private property owe a duty of care to motorists on adjacent roadways to avoid hazardous obstructions of visibility is a novel one that could have far-reaching implications beyond the litigants in the present action. A determination of that issue based on a full evidentiary record is less likely to be achieved in a motion for summary judgment than in the trial of all liability issues. The Court of Appeal has held that it is generally not appropriate to grant summary judgment involving novel or unsettled questions of law. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd., [1991] O.J. No. 1962 (ONCA), paras. 7, 12, and 14; Baglow v. Smith, 2012 ONCA 407, para. 29. The Wades argue that this principle no longer applies since 2014, when the Supreme Court made its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, para. 72 and 73, charting a new approach for motions for summary judgment. I disagree.

[59] The decision in Hryniak, combined with the recent amendments of the summary judgment rule, expanded the scope of the court’s fact finding powers in such motions. This expanded role requires the motion judge to take greater account of the impact of the decision to be made on other cases, not less.

[60] The Court in Hryniak directed this court to undertake an “interests of justice” inquiry in a motion for summary judgment, and to consider the consequences of the motion in the context of the litigation as a whole. Yusuf v. Cooley, 2015 ONSC 3244 (Div. Ct.), at para. 7, denying leave to appeal from 2014 ONSC 6501. This requires the court, ultimately, to consider whether it is in the interests of justice for the necessary findings of fact to be made at the hearing of the motion, based on the paper record, or in a “mini-hearing”, by employing the court’s new fact-finding powers, or deferring the determinations to the trial itself. This analysis requires the court to consider the objectives of proportionality, timeliness, and affordability. In applying these priorities, and deciding whether determining the issues in the context of the motion would be in the best interests of justice, the court must consider the potential impact of the outcome on other cases. In the present case, having regard to the importance of the issue of whether a property-owner owes a duty of care to motorists on adjacent roadways and, if so, how that duty intersects with those of motorists and the City, the determination is best made at a trial of all the liability issues.

f) Proportionality, timeliness, and affordability

[61] The Supreme Court in Hryniak provided guidance to this court in the management of motions for summary judgment. Karakatsanis, J., speaking for the Court, stated:

I agree with the Court of Appeal (at paras. 58 and 258) that a motion for directions also provides the responding party with the opportunity [page 114] to seek an order to stay or dismiss a premature or improper motion for summary judgment. This may be appropriate to challenge lengthy, complex motions, particularly on the basis that they would not sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.

A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client and the case. Hryniak v. Mauldin, para. 72 and 73

[62] Justice Firestone, at a case conference in a personal injury action arising from a motor vehicle collision in Griva v. Griva, 2016 ONSC 1820 (March 15, 2016), in 2016, refused to schedule a summary judgment motion on issues of contributory negligence and non-pecuniary general damages.

[63] Justice Firestone noted that the Supreme Court in Hryniak directed this court to undertake an “interests of justice” inquiry in a motion for summary judgment, and to consider the consequences of the motion in the context of the litigation as a whole. Griva, para. 17 He held that this approach is equally applicable to procedural orders and directions made by the court, in the exercise of its role, at a conference, of preventing a proposed motion for summary judgment from proceeding when such a motion is unwarranted.

[64] Justice Firestone found that it would not serve the principles of “proportionality, timeliness and affordability”, to schedule a hearing of the motion for summary judgment in that action, shortly before trial, having regard to the fact that the case would be proceeding to trial, in any event, on other issues, including damages. He found that allowing a motion for summary judgment to proceed at that point would risk duplication of evidence and inconsistent factual findings, and disrupt the trial schedule, especially because, given the complexity of the issues, the judge hearing the motion would likely reserve his/her decision.

[65] In the present case, extending the deadline set by R.S.J. Daley, and allowing the Wades’ motion for summary judgment to proceed in November 2016, four months before a liability trial in March, would have a similar effect. There would certainly be a duplication of evidence, and a risk of inconsistent factual findings.

[66] The judge hearing a motion by the Wades for summary judgment would face an extremely difficult task of determining the Wades’ liability without the benefit of the evidence relevant to the liability of other parties, especially Ms. Mah and the City of Brampton. This would increase the likelihood that the decision in the motion would be reserved, or appealed. The result would be that the liability trial would be delayed and, with it, the damages trial. The potential impact of this on the parties and their 10 lawyers, in terms of cost and delay, would be wholly disproportionate to the benefit the Wades might derive from being “extricated” from a 3 week liability trial. The potential delay of a 3.5 month trial on the eve of trial would, moreover, be a wasteful use of judicial and court resources.

[67] The Wades have, by their own delay, foreclosed their right to bring a motion for summary judgment. They could readily have arranged, immediately after the pre-trial conference on April 21, 2015, to bring their motion within the timeframe set by the Regional Senior Justice. They failed to move promptly, which limited the dates available to them when they consulted the Trial Office on June 18th. They then insisted on a 3 hour hearing when only 2 hours were available, and thereby lost the opportunity to schedule a hearing of the motion by the December 31, 2015, deadline.

[68] The principal justification offered by the Wades’ counsel for their delay in bringing the motion is their optimism that they would be able to persuade the Greens to consent to a dismissal of the action against the Wades. This court noted, in 2041094 Ontario Inc. v Aplus General Contractors, 2016 ONSC 2175, in 2016, the risk that counsel assume when they go to unreasonable lengths to seek the consent of opposing counsel to a motion, or to the scheduling of a motion, and thereby breach time limits imposed by the Rules or by an order of the court, and jeopardize their clients’ right to bring a motion or take another step in the proceeding. In the present case, I find that, in doing so, the Wades’ counsel lost sight of the legitimate interests that the Greens and other parties had in proceeding to trial within a reasonable time.

CONCLUSION AND ORDER

[69] For the reasons stated above, I find that it is not possible, at this point, to extend the time for bringing a motion for summary judgment “on terms that are just.” Additionally, permitting the motion for summary judgment to proceed would not be in the interests of justice. The Wades’ motion to extend the time for bringing their motion is therefore dismissed.

[70] If the parties are unable to agree on costs, they shall submit written arguments, not to exceed 4 pages, together with a Costs Outline, by July 31, 2016.

Price J. Released: July 6, 2016