Court File and Parties
COURT FILE NO.: CV-08-2530-00 DATE: 2017-03-02
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JAIWANT PERSAUD ISERDIAL, SUMINTRA ISERDIAL, CYNTHIA PERSAUD, and NEENA SOLANKI Plaintiffs
- and -
ACKTION CAPITAL CORPORATION, BRAMALEA CITY CENTRE EQUITIES INC., MORGUARD INVESTMENTS LTD., BRAMALEA CITY CENTRE, WR PROPERTY SERVICE INC., and GREENSIDE DRIVE LANDSCAPING INC. Defendants
COUNSEL: Christopher Moore, for the defendants Acktion Capital Corporation, Bramalea City Centre Equities Inc., Morguard Investments Ltd. And Bramalea City Centre Sheila Shoghian, for the defendant/moving party, WR Property Service Inc., and as agent for the plaintiffs and for the defendant Greenside Drive Landscaping Inc.
HEARD: February 27 and March 2, 2017, at Brampton, Ontario
BEFORE: Price J.
Reasons For Order
OVERVIEW
[1] The defendant, WR Property Service Inc. (“WR”), who the plaintiffs allege contracted to remove snow from the property of the defendants who owned or operated the Bramalea City Centre, where the plaintiff Jaiwant Persaud Iserdial says he sustained injuries in a slip and fall in 2007, moves for summary judgment dismissing the action against it on the ground that the defendant Greenside Drive Landscaping Inc. (“Greenside”), and not WR, was responsible for snow removal at the material time.
[2] Although the action was set down on June 12, 2014, for trial, and is now scheduled for trial at the blitz trial sittings beginning May 8, 2017, WR brought its motion on February 15, 2017, only 2 days before the Rules of Civil Procedure required the defendants Morguard Investments Ltd., Acktion Capital Corporation, Bramalea City Centre Equities Inc., and Bramalea City Centre (collectively, “the Morguard defendants”) to deliver responding material. The Morguard defendants request an adjournment of the motion to enable them to secure an affidavit from Earnest De Vienna, Morguard’s operations manager at the time of the incident, to respond to the motion, and to cross-examine the deponent of WR’s affidavit.
[3] WR opposes the request on the ground that Morguard defendants have known of the intended motion for years, and had an opportunity to respond after being served with the motion.
BACKGROUND FACTS
[4] The action concerns an alleged slip and fall of the plaintiff, Jaiwant Persaud, at Bramalea City Centre on February 28, 2007. Mr. Persaud alleges that he fell due to ice or snow while walking in parking lot area. He commenced an action for personal injury. The other plaintiffs assert derivative claims pursuant to the Family Law Act.
[5] According to WR’s material on the motion, it was named as the relevant snow removal contractor at the time of the incident in the Amended Statement of Claim, and in the Amended-Amended Statement of Claim. In fact, however, both WR and Greenside are now named as the contractors. WR asserts that Greenside was the sole relevant contractor at the relevant time.
[6] After pleadings were delivered and all relevant parties were examined for discovery, the plaintiffs delivered their trial record on June 12, 2014. Pre-trial conferences were held on December 10, 2015 and on March 7, 2016, and the action is now scheduled to be tried at the blitz trial sittings beginning May 8, 2017.
[7] The request by the Morguard defendants was argued on February 27, 2017. Counsel for the Morguard defendants and counsel for WR consulted counsel for the other parties (the plaintiffs and Greenside) concerning their positions regarding an adjournment of the trial. Counsel for Greenside were unable, on that date, to obtain instructions from their client regarding a date for the hearing of the motion and for the trial of the action. The motion was therefore adjourned to March 2, 2017, to enable counsel for Greenside to obtain instructions from its client and advise counsel for the Morguard defendants of its position.
[8] On the resumption of the hearing on March 2, 2017, counsel for the Morguard defendants advised that Greenside takes no position on the motion. Greenside’s representative is not available in the first week of January 2018. Counsel for WR is not available from January 8 to 14, 2018, as she has booked vacation travel during that period. The trial is expected to require 15 to 20 days. Nevertheless, counsel wish the matter to proceed to trial at the January 2018 trial sittings if the request for adjournment is allowed.
ISSUES
[9] The court must determine whether to adjourn WR’s motion for summary judgment. This would necessitate adjourning the trial of the action, since the earliest dates that the court can provide the 3 hours necessary for the hearing of the motion are in August 2017.
PARTIES’ POSITIONS
[10] In support of its request for an adjournment, the Morguard defendants note that WR delivered its motion for summary judgment on February 15, 2017. This left two days, according to the Rules of Civil Procedure, for the Morguard defendants to prepare, serve, and file their responding affidavit, conduct cross-examination on WR’s affidavit, obtain the transcript from that cross-examination, and prepare, serve, and file, their factum.
[11] WR submits that Morguard’s representative, Earnest De Vienna, was examined for discovery, and an affidavit from him is therefore not required for the motion.
ANALYSIS AND EVIDENCE
Jurisprudence
[12] The court exercises discretion as to whether to allow or deny an adjournment request. In Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, Epstein J.A., for the Court of Appeal, commented on how this discretion should be exercised:
Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter, including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. [1] [Emphasis added.]
[13] The Court of Appeal identified additional factors to be considered in relation to adjournment requests in Law Society of Upper Canada v. Igbinosun (2009), 96 O.R. (3d) 138 (C.A.), 2009 ONCA 484. Weiler J.A., speaking for the Court, stated:
A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and the finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceeding up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date, and the length of the requested adjournment should also be considered. [3] [Emphasis added]
[14] In Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, Strathy C.J.O. stated, for the court:
[18] The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 69 O.R. (3d) 790, 2004 ONCA 12037, per Laskin J.A. dissenting, but not on this point, at para. 14:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.
[19] Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.
[20] Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:
Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.
[21] The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. The fact that a party is self-represented is a relevant factor as the court has an obligation to ensure that all litigants have a fair opportunity to advance their positions.
[22] In Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497 (S.C.), 2007 ONSC 13360, a case much relied on by the appellants, Perell J. helpfully set out at para. 34 a non-exclusive list of factors that may be weighed in the exercise of a court’s discretion with respect to an adjournment.
[23] That list includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.
[24] The list in Ariston also suggests that the court should consider whether the refusal of an adjournment would significantly compromise the ability of the party prosecuting or defending the litigation and the effect of the adjournment on substantive and procedural justice.
[25] The list also makes it clear that the court must consider “the competing interests of the parties in advancing or delaying the progress of the litigation”.
[26] Finally, Perell J. noted, the judge is entitled to consider “the particular circumstances of the request for an adjournment and the reasons and justification for the request”.
Applying the legal principles to the present case
a) Consequences of outcome
[15] WR’s motion raises issues that have potentially serious consequences for the parties. If WR is successful, the Morguard defendants could be deprived of indemnification from WR for a judgment. The plaintiffs claim damages in the amount of $1,175,000.00.
[16] If WR is not successful, it will be required to proceed to trial, which is estimated to require 15 to 20 days. The defendants have incurred costs of the motion alone in the amount of $8,871, and WR has incurred costs of $17,263.59 in the action, and $2,106 for the motion, on a partial indemnity scale. A 20 day trial, at 8 hours per day (including time each morning for robing and assembling files, and time in the afternoon to de-brief clients), with an equal time in preparation, at the hourly rate of between $270 (the inflation-adjusted hourly partial indemnity rate of lawyers of less than 10 years’ experience) and $417 (the inflation-adjusted partial indemnity rate of lawyers of more than 20 years’ experience), with an equal time in preparation, translates to additional costs of between $86,400 and $133,440.
[17] WR’s motion therefore raises issues that have potentially serious consequences for both WR and the Morguard defendants.
b) Balance of prejudice
[18] WR’s counsel was unable to offer any evidence of prejudice that an adjournment of the trial would cause to her client that could not be compensated in costs. There would be significant prejudice that a refusal of the adjournment request could cause the Morguard defendants, in the greater risk of losing indemnification from WR. For these reasons, denying the requested adjournment would cause greater prejudice to the Morguard defendants than allowing the adjournment would cause to WR.
c) Justification for the adjournment
[19] WR argues that the evidence from Earnest De Vienna has already been obtained at the examination for discovery of the Morguard defendants, with the result that it is not necessary for those defendants to obtain an affidavit from him for purposes of the motion. This position, if accepted, would require the Morguard defendants to respond to the motion based on evidence of WR’s choosing. The Morguard defendants submit that there are facts known to Mr. De Vienna that WR and the other parties did not elicit in their examinations for discovery of him as the representative of the Morguard defendants.
[20] It would be unfair to deprive the Morguard defendants to the opportunity to put their “best foot forward”, as parties are required to do in a motion for summary judgment. Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, para. 32. Requiring the Morguard defendants to respond to WR’s motion based solely on WR’s evidence and the answers that Mr. De Vienna gave to questions that WR, the plaintiffs, and Greenside asked at their examination for discovery of Mr. De Vienna as the representative of the Morguard defendants would prevent the Morguard defendants from relying on evidence from Mr. De Vienna that the plaintiffs and co-defendants may not have elicited at their examination for discovery of him as the representative of the Morguard defendants.
d) History of the proceeding
[21] The date for the hearing of the motion was adjourned once previously, at the request of WR. This is the first request made by the Morguard defendants. The hearing date of February 27, 2017, was not peremptory to the parties.
e) Effect on the administration of justice
[22] The Morguard defendants are prepared to cooperate in setting a timetable for the steps required in the motion and for the trial of the action.
[23] It is not the fault of any of the parties that the court cannot accommodate earlier alternative dates for the hearing of the motion before August 2017. This results simply from the shortage of judicial resources in Central West Region and, in particular, in Brampton. It would be unfair for the court to allow this shortage of judicial resources to weigh against the Morguard defendants in weighing the impact of an adjournment on the administration of justice.
CONCLUSION AND ORDER
[24] For these reasons, I am granting the request for an adjournment of the motion and, with it, an adjournment of the trial.
[25] For the reasons stated above, it is ordered that:
The motion by WR Property Service Inc. for summary judgment dismissing the action against it, is adjourned to August 23, 2017, at 10 a.m., for a hearing estimated to require 3 hours.
The action is traversed from the trial sittings beginning May 8, 2017, to the blitz trial sittings beginning January 8, 2018.
The parties shall conform to the following timetable for the steps to be taken leading to the hearing of the motion: (a) The moving party shall deliver any further material in support of the motion by May 8, 2017; (b) The responding parties shall deliver their responding material by May 23, 2017; (c) The moving party shall deliver its reply, if any, by May 30, 2017; (d) The parties shall conduct cross-examinations by June 22, 2017; (e) Both parties shall deliver their factums, briefs of authorities, and compendiums, by August 1, 2017.
The costs associated with the appearances on February 27 and March 2, 2017, are reserved to the judge presiding on August 23, 2017. On August 23, 2017, the parties shall be prepared to file a Costs Outline setting out their costs of the motion, and segregating the costs wasted, which resulted exclusively from the adjournment;
Price J.
Released: March 2, 2017
Footnotes:
[1] Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, at para. 38, per G.J. Epstein J.A. for J.I. Laskin J.A., separate concurring reasons by Sharpe J.A.
[2] Law Society of Upper Canada v. Igbinosun (2009), 96 O.R. (3d) 138 (C.A.), 2009 ONCA 484
[3] Igbinosun, at para. 37
[4] Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, para. 32