Citation: Apa Holdings Inc. v. Duscio, 2016 ONSC 7814

COURT FILE NO.: C-1016/06

DATE: 2016-12-13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Apa Holdings Inc. operating as Filmar Custom Homes, Plaintiff AND: Antonio Duscio, also known as Tony Duscio and Leanne Duscio, Defendants

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: M.A. van Bodegom and J. Gallichan, Counsel for the plaintiff (applicant) Ryan Wozniak, Counsel for the Defendants

HEARD: December 12, 2016

ENDORSEMENT

[1] Despite the appearance created by the several hundreds of pages of material filed on this motion, this issue is uncomplicated: should I order an extension of time for the plaintiff to restore this action to the trial list and order that there be no administrative dismissal by the Registrar, until 20 days after the Divisional Court has rendered a decision on the plaintiff’s appeal from an order of my brother Campbell J. dismissing the plaintiff’s motion for leave to restore the action to the trial list? Put another way, what is the appropriate course of action when an administrative dismissal date falls between an order on a motion and the hearing of the appeal from that motion order?

[2] The action is a construction lien matter involving a claim for $250,000 and a counter-claim for $150,000. The merits of the claims are largely immaterial to this motion. The procedural steps are important. The materials reveal the following:

October 3, 2006 – statement of claim filed November 15, 2006 – statement of defence and counterclaim filed October 2, 2008 – trial record filed and set down for trial September 18, 2009 – action struck off the trial list March 4, 2010 – defendant provides affidavit of documents March 24, 2010 - plaintiff provides affidavit of documents July 28, 2010 - plaintiff is discovered August 16, 2012 - defendant is discovered March 23, 2012 – defendant’s motion for security for costs dismissed November 24, 2015 – in face of pending motion, defendant consents to an order to answer undertakings, and undertakings completed on December 8, 2015 July 19, 2016 – the plaintiff commences the motion seeking to restore the action to the trial list (almost 7 years after the action was struck off the list). September 8, 2016 – Campbell J. dismissed the motion September 21, 2016 - plaintiff appeals order of Campbell J. to Divisional Court January 1, 2017 - the mandatory administrative dismissal date under R. 48.14 February 6, 2017 – the appeal is scheduled to be heard during that week.

[3] The plaintiff’s position is that because there is an appeal pending which must be heard, and on which the plaintiff must succeed, before the action can be restored to the trial list, and because the action will be administratively dismissed by the registrar on January 1, 2017, the plaintiff requires an extension of time until the appeal to the Divisional Court appeal is heard. The plaintiff contends that the relief sought will simply maintain the status quo pending the outcome of the appeal, whereas a denial of the extension will result in an administrative dismissal of the action and render the appeal moot. Accordingly the plaintiff claims that it will suffer great prejudice if I refuse the order, whereas the defendant will suffer no material prejudice if I allow the extension.

[4] The responding defendants position is five-fold:

Firstly, the defendants’ factum suggests that rule 48.14 does not allow for “the convening of a status hearing” after an action has already been set down for trial, as happened here on October 2, 2008. I disagree. Rule 48.14 (1) is written so as to encompass to situations, the second of which is where an action is struck off the trial list and has not been restored or otherwise terminated within two years or by January 1, 2017, whichever is later. This action falls within that second situation covered by the rule. Subsection (5) then entitles the party to bring a motion for a status hearing. The defendants so acknowledged at the outset of submissions.

Secondly, the defendants argue that within this motion the plaintiff is seeking to re-litigate issues that were before Campbell J. and which were decided by him. Accordingly the defendants say this motion is a collateral attack on the order of Campbell J. The defendant points to the two-volume affidavit filed by the plaintiff on this motion, and rightfully submits that it seeks to provide an enhanced explanation for the delays in this case, beyond that which was placed before Campbell J. The defendants contend that as such the supporting affidavit is inadmissible on this motion and should be struck from the record. I agree.

Thirdly, the defendants contend that the plaintiff’s motion in reality seeks a stay of proceedings dressed up in the guise of being an order necessary to maintain the status quo pending the outcome of the appeal. The defendants submit that if the administrative dismissal does not take place they will be prejudiced as a result of losing their ability to argue on the appeal that the dismissal was “impending” at the time of the motion before Campbell J. I don’t agree. In my opinion the appeal will focus on the merits of the issues as they were at the time of the motion before Campbell J.

Fourthly, the defendants complain that the relief as sought by the plaintiff would reverse the onus, as it would require the defendants to seek an order, on notice, to dismiss the action if the plaintiff was unsuccessful in the pending appeal, and thereby would deprive the defendants of the benefit of an administrative dismissal of the action which would occur if I dismiss this motion.

Fifthly, the defendants argue that the motion is entirely unnecessary in that if the plaintiff succeeds on the appeal, the Divisional Court has jurisdiction, under section 134 (1) (a) of the Courts of Justice Act, to make any order that could have been made by the court appealed from, which clearly would here mean an order restoring the action to the trial list, and setting aside the Registrar’s administrative dismissal order. Section 134 (1) (c) also empowers the appellate court to make any other order that is considered just.

[5] In my opinion it is the fifth argument advanced by the defendants which provides the answer to this motion. I would add that rule 37.14 provides that any party who is affected by an order of a registrar may move to set aside such order by motion, and the court may set aside or vary the order on such terms as are just. It seems to me that this rule explicitly sets out the authority that the Divisional Court would have to set aside a Registrar’s administrative dismissal order when necessary to give effect to the result on the appeal. I think it unlikely that if the Divisional Court concluded that the impugned order was in error, and that the case should be restored to the trial list, that it would feel that such a result was thwarted by an intervening administrative dismissal order.

[6] While the plaintiff relies on Amirrahmani v. Wal-Mart Canada Inc., [2011] O.J. No. 4987 as authority for the proposition that a plaintiff should bring a motion to extend the time when it is unable for legitimate reasons to set an action down for trial, instead of waiting for a status notice (as in practice at the time). That is what the plaintiff did in this case. By analogy the plaintiff says it had to bring this motion instead of waiting until after the administrative dismissal order. Amirrahmani does not deal with the situation of a pending appeal from a failed such motion.

[7] The case of Carioca’s Import & Export Inc. v. Canadian Pacific Railway Ltd., [2015] O.J.No. 4569 is in my view on point. There, as here, a motion to have an action restored to the trial list was dismissed. Then a month later the action was administratively dismissed. On appeal from the order of the motion judge, the Court of Appeal held that the motion judge had erred in applying the appropriate principles. Accordingly the court set aside the order of the motion judge, and the subsequent order of the Local Registrar dismissing the action, and ordered the restoration of the action to the trial list (emphasis added). While the court did not elaborate on its jurisdiction to set aside the intervening administrative dismissal order, I think that to be by reason of the obvious nature of its power to do so, as opposed to being an oversight on the part of the court. Carioca was cited in the brief of authorities of each party.

[8] In my opinion the plaintiff’s motion was unnecessary. If the defendants should argue that the appeal is moot because of an intervening administrative dismissal, Carioca would seem to provide him with an answer. I think there to be no realistic prejudice to the plaintiff. I don’t think it appropriate to give the plaintiff the relief he unsuccessfully sought in the motion he appeals. I dismiss the motion.

Costs

[9] The parties jointly submit that a partial indemnity award of $5,000 to the successful party would be appropriate, but both acknowledge that I am not bound by either their agreement as to quantum or responsibility for such costs. I take into account the factors enumerated in Rule 57.01, and in particular the factors of complexity of the proceeding, the importance of the issues, and whether the step was necessary. The motion lasted approximately 1.5 hours. The material filed, particularly by the plaintiff, was voluminous compared to what was material to the motion, and while the defendants had to go through it, as they rightly contended, it was non-essential to this motion. In all the circumstances, I fix costs on a partial indemnity basis in the amount of $3,750 inclusive of fees, disbursements and applicable HST, payable by the plaintiff to the defendants within 30 days.

C.S. Glithero J.

Released: December 13, 2016