665750 Ontario Inc. v. Atlantic Towing Inc. et al
CITATION: 665750 Ontario Inc. v. Atlantic Towing Inc. et al, 2017 ONSC 4140
COURT FILE NO.: CV-16-562329
DATE: 20170704
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 665750 Ontario Inc. carrying on business as Camrob Enterprises
AND:
Atlantic Towing Inc. carrying on business as Chris’s Towing, Chris’s Towing Inc. and Earl Lewis carrying on business as The Recovery Board
BEFORE: Madam Justice J.T. Akbarali
COUNSEL: Todd Robinson for the applicant
David Winer for the respondent Earl Lewis carrying on business as The Recovery Board
No one for the respondents Atlantic Towing Inc. carrying on business as Chris’s Towing and Chris’s Towing Inc.
HEARD: Submissions in writing
ENDORSEMENT
[1] On May 28, 2017, I delivered an endorsement in this application in which, among other things, I found the respondents liable to the applicant for conversion of three vehicles and unjust enrichment. The liability of the respondent Earl Lewis carrying on business as The Recovery Board was premised on his relationship as agent for the respondent Chris’s Towing Inc. At the time of the hearing of the application, the respondents were jointly represented.
[2] Subsequently, an issue arose relating to whether damages for conversion should be increased to account for taxes payable, whether H.S.T. or R.S.T. At a telephone case conference, I was advised that Mr. Lewis has now retained separate counsel. Mr. Lewis has appealed my decision and has also indicated his intention to move under r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to re-open the application. Mr. Lewis seeks a date before me to hear his intended motion.
[3] I asked Mr. Lewis and the applicant to provide brief written submissions on my jurisdiction to hear the intended motion to re-open. On June 26, 2017 I released reasons dealing with the tax issue as it relates only to the other respondents, and deferred the tax issue as it relates to Mr. Lewis to an appropriate time.
[4] These reasons deal with my determination with respect to whether I have jurisdiction to hear Mr. Lewis’s motion to re-open the application. I note that were I to conclude that I do not have jurisdiction because I have already adjudicated the issues Mr. Lewis seeks to re-open, Mr. Lewis would still be free to bring his intended motion, but in that case, it could be heard by any of my colleagues.
[5] The parties agree that I have broad jurisdiction to change my judgment, at least at common law if not under r. 59.06. Since no formal order has been taken out as it relates to Mr. Lewis, I am not functus officio: Montague v. Bank of Nova Scotia, 2004 CanLII 27211 (ON CA), [2004] O.J. No. 13 (C.A.) at para. 34.
[6] Since it is apparent that I have jurisdiction to hear the motion, I have concluded that it is appropriate for me to hear Mr. Lewis’s motion to re-open the application. No such motion has yet been brought, and thus I have no evidence to allow me to conclude whether Mr. Lewis’s intended motion is a strategic decision to seek another kick at the can, the first attempt having failed, or whether it is one of the rare cases where the interests of justice require that the application be re-opened. It is appropriate that the motion be heard by me, since I know the factors that influenced my original decision and can more readily determine whether the new evidence sought to be offered, and any explanation for the failure to offer it earlier, justify re-opening the application: Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No. 2605 (Ont. Gen. Div.) at para. 14.
[7] Mr. Lewis should obtain a date for the hearing of his motion before me from the motion coordinator. The parties should confer on a timetable for the exchange of materials. Materials should be filed in the normal course. If there are any issues with respect to obtaining a date or setting a timetable to exchange materials, the parties may contact my assistant to arrange a telephone case conference.
Madam Justice J.T. Akbarali
Date: July 4, 2017