CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 935
COURT FILE NO.: 15-450
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries
Mr. Gravelle, personally
Plaintiff (Moving Party)
- and -
A-1 Security Manufacturing Corp; and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution; and Avis Industrial Corporation, and Ricky King, and Danny Teixeira
Mr. Derek Zulianello, for the Defendants
Defendants (Responding Party)
HEARD: February 4, 2016 at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Plaintiff’s Amended Notice of Motion Returnable February 4, 2016
Introduction
[1] The plaintiff represents himself in this proceeding which he has turned into a procedural quagmire. He has done so by
- issuing “parallel” claims and seeking to have one claim stayed;
- purporting to amend a notice of motion to claim different relief following a ruling that disposed of the original motion;
- delivering notice that he abandons his amended motion and then rescinding that notice when he realized the cost consequences;
- seeking leave to amend his statement of claim without providing a proposed draft of the amended pleading;
- failing to attend court for a scheduling motion and then objecting to the schedule ordered, and asking to set it aside;
- seeking an adjournment of a fixed date for motion to strike his pleadings on the grounds that his counsel cannot attend when no solicitor has filed a notice of appearance, (be it for a limited scope retainer or otherwise); and
- failing to pay costs ordered to be paid forthwith.
The Plaintiff’s Motion
[2] On January 8, 2016, the plaintiff served a notice of motion returnable January 28, 2016. That motion sought relief in the following terms:
(1) an order staying the underlying proceeding in its entirety, until the full disposition of a motion in a parallel companion action no. CV-13-0385 between all the parties hereto, currently set to be heard before the Honourable Justice Newton on January 20, 2016;
(2) an order precluding the defendants from responding to the issued Statement of Claim, as filed in the case sub judice on November 2, 2015, until the delivery of the Plaintiff’s Fresh As Amended Statement of Claim, to be delivered upon the defendants counsel and filed with the court, prior to Friday, February 12, 2016;
(3) An order requiring the Defendants to respond to the Amended Statement of Claim, either by way of defense or motion to strike, within 21 days of service of same.
[3] Previously, Mr. Gravelle had served a motion returnable before Mr. Justice Newton on January 20, 2016 asking him to reconsider his decision of July 9, 2015, that refused leave to appeal my order. Justice Newton dismissed Mr. Gravelle’s motion for reconsideration of his earlier decision. He also refused leave to Mr. Gravelle to serve an amended statement of claim as the motion material did not include a draft copy of the proposed amended pleading nor any other supporting material, without prejudice to Mr. Gravelle’s right to bring a properly constituted motion to amend his claim. Finally, Justice Newton awarded the defendants costs of $1,500 plus HST, payable forthwith. These costs have not been paid.
[4] On January 21, 2016, Mr. Zulianello, counsel for the defendants, wrote to Mr. Gravelle, suggesting that, in view of Justice Newton’s ruling, his motion returnable January 28^th^ was moot. Mr. Gravelle replied by e-mail on January 25^th^ as follows:
…In light of the fact that you have already served your motion to strike materials, and the fact that Justice Newton has already released his endorsement, I have decided to abandon my notice of motion, returnable January 28, 2016.
The aforementioned motion will not be rescheduled for February 4, 2016.
Lets [sic] focus on setting a special hearing date for your Motion to Strike along with time table [sic] for exchange of materials.
The emphasis is in the original e-mail.
[5] Later that day, Mr. Zulianello replied, acknowledging Mr. Gravelle’s earlier communication that he intended to abandon the motion for a stay returnable on January 28^th^, and reminding him that on January 21, 2016, he had drawn to his attention the costs consequences for abandoned motions, as described in Rule 37.09. Mr. Zulianello advised that he would be requesting costs of the abandoned motion.
[6] Mr. Gravelle responded by e-mail on January 27, 2016, indicating that he was not prepared to throw away costs on the motion to stay and intended to serve an amended notice of motion returnable February 4, 2016, claiming various relief.
[7] On January 18, 2016, the defendants served their own notice of motion to strike the statement of claim and dismiss the action. It was confirmed as returnable on January 28, 2016 in order to fix a special date for hearing and to direct a timetable for the delivery of materials. Mr. Gravelle was on notice that defendants’ counsel intended to do so as Mr. Zulianello canvassed Mr. Gravelle with suggested dates on January 25^th^.
[8] On January 28^th^, despite Mr. Gravelle’s assertion that he “was not abandoning his motion and would not throw costs away” on his motion returnable January 28^th^, and despite being on notice that the defendants’ motion to strike his pleadings would be spoken to that day, Mr. Gravelle did not appear in court.
[9] Mr. Zulianello seeks costs of Mr. Gravelle’s abandoned motion. Mr. Gravelle submits that because he did not serve and file a notice of abandonment as required by Rule 37.09, he did not abandon his motion.
[10] This is a misapprehension of the rule. Rule 37.09(1) provides that:
(1) A party who makes a motion may abandon it by delivering a notice of abandonment.
[11] The rule does not require that the notice of abandonment be filed with the court office, only that the notice be delivered. The requirement to “file” the notice of abandonment is wholly missing from the text of the rule.
[12] In this case, Mr. Gravelle’s notice was in writing and delivered to opposing counsel via e-mail. It identified the notice of motion so that there was no confusion about what motion was being abandoned.
[13] The authorities provide that no form is required for the notice of abandonment although the notice must be in writing and comply with the requirements of rule 4.02 with respect to heading, title, etc. See: Ontario Civil Procedure, Holmested and Watson, Vol. 5, (loose leaf, Carswell, Toronto), p. 37-45. See also: Sargeant v. Sargeant, [1983] O.J. No. 2125 (Ontario Supreme Court, Taxing Officer).
[14] I conclude that compliance with rule 4.02 is procedural rather than substantive, undoubtedly so that the subject litigation can be identified. The rationale for the rule is to stem the costs being incurred by the opposing party when it becomes known that a matter is not proceeding. In this case, Mr. Gravelle was in substantial compliance with Rule 37.09(1).
[15] However, delivering a notice of abandonment is not the only means by which a motion can be held to be abandoned. Rule 37.09(2) provides that:
(2) A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise.
[16] In these circumstances, there is no evidence that Mr. Gravelle’s notice of motion returnable January 28, 2016 was filed with the court. I presided in motions court that day and Mr. Gravelle’s motion was not brought forward. Nor did Mr. Gravelle appear that day, or designate an agent to speak to the motion on his behalf. Accordingly, I conclude that Mr. Gravelle abandoned his motion. The defendants are therefore entitled to their costs in accordance with Rule 37.09. The parties may file written submissions related to these costs within thirty days, with submissions not to exceed five pages.
[17] On January 28^th^, I ordered that the defendants’ motion to strike Mr. Gravelle’s pleadings to be heard by special appointment on February 24, 2016 and stipulated a timetable for delivery of materials.
[18] On January 29, 2016 at 4:54 p.m., Mr. Gravelle served Mr. Zulianello with a motion returnable February 4^th^. The motion was short-served, and claimed orders in the following terms:
(1) Declaring the Defendants Motion to Strike and Motion to Dismiss, dated January 18, 2016, as null and void;
(2) Vacating the endorsement of the motion court, dated January 28, 2016, setting a timetable of materials and special hearing date set for February 24, 2016;
(3) Permitting the plaintiff leave to file a Statement of Claim, as freshly amended;
(4) Requiring the Defendants to respond to the Amended Statement of Claim, either by way of statement off defense or alternatively, motion to strike, within 21 days commencing upon date of delivery for aforementioned statement of claim; and
(5) Abridging the time of service to 6-days;
(6) Reasonable costs to bring the underlying motion.
[19] This motion is ill-conceived and is dismissed in its entirety.
[20] The defendants’ motion to strike Mr. Gravelle’s pleadings is properly before the court and there are no grounds advanced in argument to dismiss it.
[21] Mr. Gravelle’s request to vacate the special hearing date is, in effect, a request to adjourn the hearing of the motion because he submits that a lawyer whom he hopes to retain but who has not filed a notice of appearance, will not be available on February 24^th^.
[22] The evidence before me indicates that Mr. Zulianello has repeatedly asked this counsel to deliver his notice of appearance but he has not done so. Consequently, I conclude that Mr. Gravelle is self-represented. Having refused to appear at court when the hearing date was scheduled, or respond to Mr. Zulianello’s attempt to canvas his available dates, it does not now lie in Mr. Gravelle’s mouth to object to the date that the court has set.
[23] Mr. Gravelle again moves for leave to amend his statement of claim but, as when he appeared before Justice Newton, he has not filed a proposed draft of the amendment with supporting documents. In my view, this constitutes an abuse of process by which costs are needlessly incurred and court time is wasted.
[24] The parties may, within thirty days, file written submissions on costs of Mr. Gravelle’s motion returnable this day, not to exceed five pages.
_ “Original signed by”_
The Hon. Madam Justice H.M. Pierce
Released: February 5, 2016
CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 935
COURT FILE NO.: 15-450
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries
Plaintiff (Moving Party)
- and -
A-1 Security Manufacturing Corp; and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution; and Avis Industrial Corporation, and Ricky King, and Danny Teixeira
Defendants (Responding Party)
REASONS ON PLAINTIFF’S AMENDED NOTICE OF MOTION RETURNABLE FEBRUARY 4, 2016
Pierce J.
Released: February 5, 2016
/cs