Court File and Parties

COURT FILE NO.: CV-09-383329 MOTION HEARD: 20170505 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carolyn Liddy, Plaintiff AND: Anna Mauro, City of Vaughan, Bill Robinson, Michael Ridgwell, Defendants

BEFORE: Master B. McAfee

COUNSEL: J. Streisfield, Counsel for the Plaintiff, Moving Party F. P. Carpenter, Counsel for the Defendants, City of Vaughan, Bill Robinson and Michael Ridgwell, Responding Parties F. Souza, Counsel for the Defendant, Anna Mauro and proposed defendant, Gino Mauro, Responding Parties

HEARD: May 5, 2017

Reasons for Decision

[1] The parties resolved many of the matters at issue. On May 5, 2017, I signed a consent order reflecting certain relief agreed to. The balance of the relief is referred to below under these headings:

1. Agreed upon relief at paragraph 4a-f of the amended notice of motion and return of motion;
2. Leave to bring the motion to seek the contested relief at paragraph 4a-f;
3. The contested relief at paragraph 4a-f;
4. Timetable for relief at paragraph 4a-f;
5. Costs thrown away of the amendments to the amended statement of claim;
6. Costs of the motion.

1. Agreed upon relief at paragraph 4a-f

[2] With respect to the relief at paragraph 4a, the defendant, City of Vaughan (Vaughan), agrees to serve a supplementary affidavit of documents pursuant to Rule 30.07. Vaughan agrees that the newly produced Building Permit Application dated June 7, 2001, will be included in the supplementary affidavit of documents. An order shall go accordingly.

[3] With respect to the relief at paragraph 4f, it is agreed that a representative of Vaughan, of Vaughan’s choosing, shall attend to be examined for discovery for up to 2 hours. An order shall go accordingly. The scope of the re-attendance is not agreed to, more of which is said below.

2. Leave to bring the motion to seek the contested relief at paragraph 4a-f

[4] The plaintiff submits that the trial date has now been adjourned and that leave should not be required to bring a motion for the contested relief at paragraph 4a-f. The plaintiff submits that if leave is required, leave should be granted in the circumstances. The plaintiff also argues that the relief is being sought as a result of the Vaughan defendants having served a request to admit and notice under the Evidence Act on March 6, 2017. There is no evidence specifically stating the reason why leave is sought.

[5] Although the trial date has now been adjourned, the action has been set down for trial.

[6] In my view the issue is whether the contested relief at paragraph 4a-f is an obligation imposed by a rule listed at Rule 48.04(2)(b).

[7] With respect to the contested relief at paragraph 4b, being the delivery by Anna Mauro (Mauro) of a supplementary affidavit of documents pursuant to Rule 30.07, leave is not required because compliance with an obligation imposed by a rule listed at Rule 48.04(2)(b) is sought.

[8] The balance of the contested relief at paragraph 4a-f (paragraph 4a for “disclosure of the originals of all documents listed in schedule A to their affidavit of documents and other documents disclosed to the plaintiff to date,” paragraph 4b for “disclosure of the originals in all documents listed in schedule A to her affidavit of documents and disclosed to the plaintiff to date,” paragraph 4c, paragraph 4d, paragraph 4e and the contested relief at paragraph 4f, being the scope of the re-attendance) is not a request for compliance with an obligation imposed by a rule listed at Rule 48.04(2)(b). Leave is required to bring a motion for this relief. The evidence before me does not specifically address the basis for the request for leave. I do not grant leave for this relief in the circumstances.

3. The contested relief at paragraphs 4a-f

[9] The only contested relief at paragraphs 4a-f for which leave is not required is the contested relief at paragraph 4b, which seeks an order requiring Mauro to serve a supplementary affidavit of documents pursuant to Rule 30.07. Mauro agrees to comply with her obligations Rule 30.07 and submits that an order ought not to be made requiring her to do so.

[10] I decline to make an order that Mauro comply with her obligations under Rule 30.07. She agrees to comply with her ongoing obligations and in my view, having regard to the evidence before me on this motion and the submissions of the parties, Mauro’s agreement to comply with her obligations under Rule 30.07 is sufficient in all of the circumstances of this matter.

[11] With respect to the contested relief at paragraph 4f, I declined to grant leave. Accordingly, I am not prepared to increase the scope of the 2 hour re-attendance beyond that which Vaughan agrees to. The scope of the re-attendance is accordingly limited to documents in the supplementary affidavit of documents only.

4. Timetable for the relief at paragraph 4a-f

[12] A timetable for the agreed upon relief at paragraph 4a-f was not addressed at the return of the motion because the parties did not have my determination of the issue of leave and on the contested relief at paragraph 4a-f. The parties shall confer and make best efforts to agree to a timetable for the service by Vaughan of a supplementary affidavit of documents and for the re-attendance at an examination for discovery of Vaughan. Any agreed upon timetable shall be submitted to me in writing for approval. If a timetable cannot be agreed upon, the parties shall make arrangements to re-attend before me. Any re-attendance shall be scheduled, not necessarily take place, within 90 days of today’s date.

5. Costs thrown away of the amendments to the amended statement of claim

[13] Mauro seeks the sum of $2,950.00 comprising of 5 hours of further discovery of the plaintiff and 4 hours for pleadings at a partial indemnity rate of $350 per hour for costs thrown away of these amendments.

[14] The Vaughan defendants seek the sum of $1,478.00 comprising of 9 hours for further discovery and pleadings at a partial indemnity rate of $150.50 per hour plus some time for senior counsel for costs thrown away of these amendments.

[15] The plaintiff argues that there are no costs thrown away of the amendments and that any request in this regard is premature.

[16] I am satisfied that the defendants are entitled to some costs thrown away at this time. In Plante v. Industrial Alliance Life Insurance Co., 2003 CarswellOnt 2961 (Ont. Master), amendments to a pleading were made late in the process, as is the case before me. The plaintiff was ordered to pay an installment amount within 30 days and if the amount was insufficient to indemnify the defendant, the costs could be fixed by the presiding master or by motion or by the trial judge at the time of final disposition.

[17] I agree with the approach in Plante. An installment of $2,000.00 for Mauro’s costs thrown away of the amendments and an installment of $1,000.00 for the Vaughan defendants’ costs thrown away shall be paid by the plaintiff within 30 days. If these amounts are insufficient to indemnify the defendants, the costs thrown away, once incurred, may be fixed by me at the request of counsel or may be fixed by the trial judge at the time of disposition of the action, subject to the discretion of the trial judge.

6. Costs of the motion

[18] If any party seeks costs of the motion and if after reasonable attempts to agree the parties are unable to agree upon costs, the parties may make arrangements to re-attend before me to address the issue of costs. Any re-attendance shall be booked, not necessarily take place, within 90 days of today’s date.

[19] For any re-attendance, the parties shall ensure that the time estimate is agreed to and sufficient time is booked.

Master B. McAfee Date: May 16, 2017