Court File and Parties
COURT FILE NO.: C-2830-13 DATE: 20170717 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Johnathon Trudeau Plaintiff (Responding Party) – and – David Cavanagh Defendant (Moving Party)
COUNSEL: Mr. B. Julien, for the Plaintiff (Responding Party) Mr. M. Leef, for the Defendant (Moving Party)
HEARD: July 6, 2017, at Sudbury, ON
RULING ON MOTION
KURKE J.:
Overview
[1] The defendant moves under Rule 26.01 of the Rules of Civil Procedure (R.R.O. 1990, Reg. 194), as amended, to amend his Statement of Defence to add as grounds that the plaintiff was an excluded driver under the policy of insurance on his motor vehicle, that accordingly, on the date of loss the plaintiff’s motor vehicle was uninsured, and that therefore the plaintiff is barred from recovery on his claim by operation of s. 267.6(1) of the Insurance Act, R.S.O. 1990, c. I8, as amended, and of ss. 1(3) and 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended (“CAIA”).
Background
[2] The plaintiff and defendant were involved in an automobile accident in Espanola, Ontario on August 7, 2013. In their pleadings, each blames the other for the accident. The plaintiff seeks damages for personal injury, among other things.
[3] On March 29, 2012, more than a year before the accident, the plaintiff executed an OPCF 28A form, endorsing himself as an excluded driver under contract of insurance 7869512 with the Wawanesa Insurance Company (“Wawanesa”). The OPCF 28A indicates the plaintiff as the “Excluded Driver” for the purpose of the policy in paragraph 3. The acknowledgement appears to have been verified by the signatures of both the plaintiff and Pamela Menard, his wife, and states the following among other things:
“WARNING – BY SIGNING THIS FORM YOU AGREE THAT IF THE EXCLUDED DRIVER DRIVES ANY AUTOMOBILE DESCRIBED BELOW, THIS POLICY WILL NOT PROVIDE THE INSURANCE REQUIRED BY LAW; THIS POLICY WILL NOT PROVIDE COVERAGE FOR DAMAGE OR INJURIES CAUSED BY THE EXCLUDED DRIVER; AND BOTH THE AUTOMOBILE OWNER AND THE EXCLUDED DRIVER MAY BE PERSONALLY RESPONSIBLE FOR DAMAGE OR INJURIES CAUSED BY THE EXCLUDED DRIVER.
Please sign and return this form. Keep a copy for your records.
Purpose of This Change – This change is part of the policy. Except for certain accident benefits, it excludes all coverage when the person (the “Excluded Driver”) named in paragraph 3 below drives the automobile(s) described in paragraph 2 below.
Exclusions from Coverage – Except for certain Accident Benefits under Section 4 of the policy, we will not provide coverage while the Excluded Driver is driving the automobile(s) listed below, as well as any temporary substitute automobile and any newly acquired automobile as defined in the policy.
Acknowledgement of Excluded Driver - I promise that I will not drive the automobile(s) described in paragraph 2 above.
I understand that if I do, there is no coverage under the policy for: property damage and bodily injury, damage to the automobile(s), and most Accident Benefits; I may be charged with driving without insurance… .”
[4] The plaintiff commenced this action October 3, 2013. The defendant filed a Statement of Defence April 7, 2014. The Statement of Defence does not assert that the plaintiff was the owner of the motor vehicle that he was driving, that the plaintiff was an excluded driver, that the plaintiff was uninsured, or that s. 267.6 of the Insurance Act, in conjunction with s. 2(1) of the CAIA, bars any recovery by the plaintiff.
[5] In materials on this motion, it is claimed on behalf of the plaintiff that on the date of loss he believed that the vehicle he was driving was insured, as his wife had gotten coverage through insurance broker Brokerlink with Wawanesa. Unfortunately, that coverage was under policy 7869512.
[6] On August 23, 2013, by letter to the plaintiff, which included a copy of the OPCF 28A, Wawanesa made its position on coverage clear. “…we have determined that you are not eligible for Specified Benefits are [sic] you were an excluded driver on this policy on the date of the accident as per the enclosed OPCF 28A Excluded Driver form signed on March 29, 2012.” The letter set out a Dispute Resolution process, in the event that the plaintiff wished to dispute Wawanesa’s determination. There is no evidence in the record that the plaintiff or counsel on the plaintiff’s behalf disputed anything in this letter.
[7] At the time of the accident, the plaintiff had just taken possession of the vehicle that he was driving, a brown 2004 Chevrolet pickup, from one Christopher Chalmers. He had not yet registered it in his own name, although he had put his own registered licence plates upon it. Indeed, the plaintiff only registered the vehicle under his own name October 29, 2013, with the same licence plates, even though s. 11(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, requires a purchaser of a vehicle to apply to the Ministry of Transportation for a new permit within six days of the purchase. Nevertheless, in the Motor Vehicle Accident Report (“MVAR”), and at discoveries, the plaintiff indicated that he was the owner of the vehicle. In the MVAR, he also asserted that he was insured under the Wawanesa policy; he was not charged with failure to have valid insurance.
[8] The examinations for discoveries were scheduled for May 7, 2015 and held that day. The day prior, on May 6, 2015, defendant’s counsel provided to plaintiff’s counsel by fax the Wawanesa Accident Benefits file. The OPCF 28A form that had been completed by the plaintiff in 2012 was page 61 of 68 in that disclosure. The issue was briefly canvassed at the examination in the context of Income Replacement Benefits coverage. While plaintiff’s counsel candidly admitted at the discovery that Wawanesa had taken the position that the plaintiff was an excluded driver, defendant’s counsel did not immediately turn his mind to the full significance of this exclusion to the lawsuit.
[9] The matter proceeded. On July 22, 2015, counsel for the defendant began canvassing with counsel for the plaintiff a possible settlement of the matter. The trial record was served on defendant’s counsel August 10, 2015. In September 2015, the parties discussed mediation of the case. In November 2015, a pre-trial conference was scheduled for June 28, 2016. In January and March 2016, the defendant continued to indicate willingness for mediation.
[10] On April 18, 2016, the parties agreed to mediate the matter on the pre-trial date. A fallback date of October 19, 2016 was set for a pre-trial, if it should become necessary. The defendant agreed to cover the costs of the mediation, if the matter resolved. Mediation briefs were exchanged in the middle of June 2016, and provided to the mediator.
[11] The plaintiff expended considerable sums on the file in anticipation of mediation. Since the defendant’s expression of interest in mediation, by December 2016 some $15,000 in expenses had been incurred by plaintiff’s counsel, as a result of commissioning expert reports and documents necessary to substantiate the plaintiff’s damages. Plaintiff’s counsel also expended time on preparation for the mediation.
[12] However, on June 24, 2016, everything changed. According to evidence on the motion, as defendant’s counsel was preparing for mediation in the weeks leading up to the mediation date, he had the opportunity to study the disclosure provided by and on behalf of the plaintiff, including the OPCF 28A. He realized that the Insurance Act potentially provided a full defence and bar to the plaintiff’s recovery on the claim, and not simply exclusion from some Accident Benefits.
[13] Defendant’s counsel advised counsel for the plaintiff that he would be seeking summary judgment. He cancelled the mediation, and paid the cancellation fee for it. He offered to settle the case by dismissal without costs.
[14] By letter dated August 3, 2016, plaintiff’s counsel advised defendant’s counsel that the vehicle that had been driven by the plaintiff on the date of loss had just been purchased from Christopher Chalmers, and that the ownership had not yet been changed over, and that the plaintiff had been “in the process of arranging insurance”. Plaintiff’s counsel asserted that the vehicle was therefore insured by Chalmers, the owner of the vehicle, and that the plaintiff “has every right to sue”. Until that time, defendant’s counsel had no reason to know of the existence of Chalmers.
[15] At the insistence of the plaintiff, the pre-trial date of October 19, 2016 was maintained. However, it was adjourned by the pre-trial judge, Poupore J., pending determination of the defendant’s anticipated summary judgment motion.
[16] This motion was initially returnable November 18, 2016, but was put over ultimately to July 6, 2017 for hearing.
Positions of the Parties
[17] The defendant requests to amend the Statement of Defence to add in reference to the uninsured status of the plaintiff’s motor vehicle, the fact that the plaintiff was an excluded driver, and the effect of s. 267.6(1) of the Insurance Act and s. 2(1) of the CAIA. It is the defendant’s position that the plaintiff would suffer no prejudice by the amendment.
[18] The plaintiff opposes the amendments. He submits that the proposed amendments would cause him prejudice that could not be compensated for by an award of costs or an adjournment.
[19] In particular, the plaintiff asserts that the delay by the defendant in seeking this amendment has resulted in the expiry of limitation periods, so that the plaintiff has lost the opportunity to institute claims to recover from 1) the former (registered) owner of the motor vehicle that the plaintiff was driving on the date of loss, 2) Brokerlink, the insurance broker who secured coverage to the plaintiff of insurance under the same policy from which the plaintiff was an excluded driver, or 3) Wawanesa, the insurer. The plaintiff asserts that he allowed the limitation periods for instituting these claims to run as a result of the defendant’s failure to plead the Insurance Act defence. The defendant’s conduct therefore creates a presumption of prejudice to the plaintiff that the defendant has not rebutted through a showing of “special circumstances”.
[20] While the plaintiff asserts significant costs in preparation of reports for the purpose of mediation, the defendant asserts that the reports in question would have to have been prepared in any event for the ongoing litigation, and that they do not represent any prejudice to the plaintiff.
[21] The plaintiff further asserts that the defendant should be estopped from relying on this Insurance Act defence, as a result of its conduct of the proceeding to this point, which has led the plaintiff to believe that the matter was heading towards resolution.
Relevant Legislative Provisions
[22] Rule 26.01 states:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[23] The purpose of Rule 26.01 is to permit amendments to pleadings to ensure that there can be a just determination of the real matters in dispute, and that a party is not crippled in the litigation through mistake or oversight. Amendments can be made up to, or even after, trial, and delay in seeking to amend pleadings is not per se a bar to the amendment. However, the existence of irremediable prejudice or an effort to advance an untenable position are recognized exceptions to the mandatory language in Rule 26.01: Knight v. Toronto (City), [2002] O.J. No. 4539 (Master’s Ct.), at paras. 9-10; Mazzuca v. Silvercreek Pharmacy Ltd., [2001] O.J. No. 4567 (C.A.), at para. 20.
[24] A presumption of prejudice arises if the amendment is sought after the expiration of a relevant limitation period. This presumption will be determinative unless the moving party can demonstrate, on the facts of the case, that there exist special circumstances to rebut the presumption that the responding party will suffer prejudice from the loss of a remedy as a result of the expiration of a limitation period: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.), at paras. 17, 22, 28; Churly v. Budnick, [1997] O.J. No. 2909 (Master’s Ct.), at paras. 31, 34.
[25] On the other hand, a court need not give effect to prejudice that may occur to a responding party that has arisen because of the responding party’s own failure to do something it reasonably could or ought to have done. Thus, where prejudice is said to arise from expiration of a limitation period, if the responding party could or should have taken steps itself within the time frame of the limitation period, but failed to do so, it cannot complain of prejudice if the moving party seeks amendment after the limitation period has run. Such “self-created prejudice” displaces the presumption: 2054509 Ontario Ltd. v. Corrent, [2012] O.J. No. 5810 (Master’s Ct.), at paras. 35-37; Desjardins v. Mooney, [2001] O.J. No. 697 (Sup. Ct.), at para 21; and cf. Chiarelli v. Wiens, 46 O.R. (3d) 780 (C.A.), at para. 15.
[26] The legislative provision on which the defendant now seeks to rely, section 267.6(1) of the Insurance Act, is Draconian and clear in its effect. A person who is contravening the mandatory insurance provision in the CAIA is not permitted to recover damages for bodily harm or death in the event of loss occasioned during the operation of an automobile. Nor need the driver have been prosecuted for or convicted of the “no insurance” offence:
267.6 (1) Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2(1) of the Compulsory Automobile Insurance Act in respect of that automobile.
(2) Subsection (1) applies whether or not the person was prosecuted for or convicted of an offence under the Compulsory Automobile Insurance Act.
[27] That section of the Insurance Act refers to s. 2(1) of the CAIA, which, together with s. 1(3), state:
(3) Even if a motor vehicle is insured under a contract of automobile insurance, it shall be deemed to be an uninsured motor vehicle for the purposes of this Act while it is being operated by an excluded driver as defined in the Insurance Act with respect to that contract unless the excluded driver is a named insured under another contract of automobile insurance.
(1) Subject to the regulations, no owner or lessee of a motor vehicle shall, (a) operate the motor vehicle; or (b) cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobile insurance.
[28] The purpose of the provision in the CAIA is to ensure that every automobile operated in Ontario is insured. In this scheme, common law ownership suffices, and can be evidenced by a person affixing his or her own licence plates to the vehicle, and doing other things that demonstrate dominion and control over the vehicle: R. v. Basic, [2017] O.J. No. 1806 (C.J.), at paras. 40-45. Depending on the statutory scheme involved, there can be both a registered and a common law owner of the same vehicle. There is authority for the proposition that there is a “rebuttable presumption” of ownership in the registered owner: Hayduk v. Pidoborozny, [1972] S.C.R. 879; Due (Litigation Guardian of) v. Waters, [2014] O.J. No. 4852 (Sup. Ct.), at para. 13. While the owner of a vehicle in Ontario must register the vehicle and licence plates in his or her name shortly after the vehicle is acquired, the common law owner of a motor vehicle, even before registration, must himself acquire insurance under the law: R. v. Zwicker, [1994] O.J. No. 197 (C.A.), at 3 (QL).
[29] A mere driver of the vehicle who is not the owner would not be caught by the combined operation of s. 267.6(1) of the Insurance Act and s. 2(1) of the CAIA: Kakish v. Bruce, [2004] O.J. No. 2616 (Sup. Ct.), at paras. 5-11.
Analysis
The Prejudice Argument
[30] The plaintiff submits that the right of the defendant to amend his pleadings must be refused as a result of the prejudice that the plaintiff would suffer from the loss of the opportunity to make claims against Chalmers and Brokerlink and Wawanesa. I will consider these potential claims.
[31] The plaintiff argues on this motion that he was simply a driver of the uninsured vehicle on the date of loss, as he was not yet the registered owner of the vehicle that he had recently bought from Chalmers. According to the plaintiff, Chalmers had a duty to ensure that the vehicle was insured. If it was not insured, then the plaintiff could sue Chalmers for leaving the plaintiff without insurance. The limitation on such a claim, however, would have run out after disclosure of the Accident Benefits file to the defendant on May 6, 2015, but well before the defendant cancelled the scheduled mediation in June 2016. By the delay in seeking to amend the Statement of Defence, the defendant caused irremediable prejudice.
[32] Respectfully, the plaintiff’s position regarding loss of the opportunity to make a claim against Chalmers strikes me as chimerical, for the following reasons, among others:
a. Zwicker makes it clear that the duty to insure a motor vehicle falls on the owner, be that owner common law or registered. The plaintiff claimed to be the owner of the motor vehicle in the MVAR and at discoveries. He used his own registered plates on the vehicle on the date of loss, and continued to use them when he registered the vehicle. An assertion at this point, in counsel’s affidavit, that the plaintiff was merely the “driver” of Chalmers’ vehicle, apparently geared to take advantage of the Kakish principle, appears frivolous and opportunistic, but not credible; b. The plaintiff attempts to rely on Hayduk to advance the assertion that he and Chalmers could both be owners of the vehicle: the one common law, and the other registered, and that Chalmers would therefore have a duty to insure the vehicle that had been sold to the plaintiff. In my view, any presumption of ownership to the registered owner Chalmers in this case must be considered rebutted by the plaintiff’s conduct and assertions of ownership. Moreover, Hayduk is distinguishable on its facts, as in that case a father and son were both, in essence, purchasers of the vehicle, and could both be owners: one registered, one common law, and both could be sued. In the circumstances of our case, Chalmers and the plaintiff stand as vendor and purchaser; c. Moreover, the plaintiff, through his wife, obtained an insurance policy on the pickup, and he provided the policy number for the purposes of the MVAR. Such conduct, futile as it may have been in the context of the OPCF 28A that the plaintiff himself signed, is certainly inconsistent with his claim that he was merely the driver of the vehicle on Chalmers’ insurance; d. Adoption of the plaintiff’s position about a claim against Chalmers would have the bizarre result that someone could buy a vehicle and refuse to insure it or register it, without consequence, as the seller would be required to maintain the vehicle’s insurance until the purchaser finally did register it; e. There is, in any event, no evidence on the motion that Chalmers was not insured for the vehicle on the date of loss.
[33] On the MVAR, the plaintiff indicated his insurance policy as Wawanesa policy 7869512. I cannot accept that the plaintiff was unaware that he was uninsured on the date of loss by reason of his self-exclusion the year before from the self-same insurance policy by way of the OPCF 28A. If the plaintiff’s position with respect to insurance maintained by Chalmers were plausible, and I have expressed my strong doubts about such a claim, plaintiff or counsel should have known to launch a claim against Chalmers long before the expiry of any limitation period compromised the plaintiff’s ability to recover from him or his insurer.
[34] Certainly the August 23, 2013 letter from Wawanesa to the plaintiff must have served as a reminder to the plaintiff and counsel about the bar under s. 267.6(1) of the Insurance Act. Moreover, at some point prior to May 6, 2015, plaintiff’s counsel had in hand the Accident Benefits file from Wawanesa. If, as the plaintiff submits, the OPCF 28A contained therein should have tipped off the defendant from that date about the availability of the s. 267.6(1) defence, so too should it have alerted the plaintiff to institute his claim against Chalmers because of the insurance issue. In such circumstances, any prejudice to the plaintiff occasioned by the delayed amendment to the Statement of Defence must be considered self-created.
[35] Without belabouring the point, the same logic must apply to any potential claim against Brokerlink. Such a claim, presumably, would focus on the broker’s negligence in securing for the plaintiff insurance under a policy on which the plaintiff was an excluded driver. Just as in the case of Chalmers, by August 23, 2013 or May 6, 2015 the plaintiff and his legal counsel had enough information to institute a claim against the broker, and failure to do so must be held to generate only self-created prejudice.
[36] The plaintiff also argues that the plaintiff may not be an excluded driver by reason of Wawanesa’s failure to bring the fact of his exclusion as a driver under the policy to his attention before he drove the newly purchased vehicle. This argument relies on Chen Estate v. Chung, 2010 ONSC 6531, [2010] O.J. No. 5086 (Sup. Ct.), at paras. 14-16, which is of little assistance to the plaintiff. In that case, the OPCF 28A was not properly brought to the driver’s attention, and was in fact completed in his absence after he signed it, and not provided to him. In our case, the form itself, completed and signed by the plaintiff and his wife, urged them to retain a copy for their records. In any event, if it is argued that Wawanesa could be sued for its failure to warn the plaintiff of the circumstance of his exclusion, for reasons already stated, any prejudice to the plaintiff’s ability to claim against Wawanesa was caused by the plaintiff’s own failure to act once there existed every reason to do so, by August 23, 2013 or May 6, 2015.
[37] However, the plaintiff asserts that he would have had no reason to consider claims against the prior owner of the vehicle or the insurance broker or the insurance company in the circumstances of this case before the defendant first raised the s. 267.6(1) issue. Rather, the plaintiff believed himself insured under a policy of insurance, he was simply the driver of Chalmers’ vehicle, he was not the at-fault driver, and the insurance company for the defendant had responded to the claim and was defending it without mentioning s. 267.6(1) of the Insurance Act.
[38] Respectfully, I cannot agree. The plaintiff had in hand all facts necessary to institute claims against prior owner and/or broker and/or insurer before the expiration of any limitation periods. It appears that the plaintiff was merely hoping that the defendant would, for whatever reason, never raise the obvious defence to his claim. Rule 26.01 permits amendment at any stage of an action. Common sense required the plaintiff to forestall the downside risks of the eventual inevitable amendment request by the defendant to plead s. 267.6(1) of the Insurance Act. This the plaintiff could accomplish by instituting timely claims against the prior owner and the broker and his insurer. The just determination of the real matters in dispute in this case cannot be accomplished by permitting the plaintiff to rely on the defendant’s mistake in not understanding sooner the implication of the OPCF 28A that the plaintiff himself had signed. To prevent the amendment is simply to frustrate public policy, as evinced by provincial legislation.
[39] Finally, the plaintiff argues at length that there are reasons to believe that the OPCF 28A exclusion cannot be relied upon by the defendant, that there are legal exceptions to the statutory recovery exclusion based on s. 267.6(1) of the Insurance Act and s. 2(1) of the CAIA: Black v. Hamm, 2011 ONSC 4149, [2011] O.J. No. 3017 (Sup. Ct.), at paras. 3, 43, 61-63; Bigley v. Sanders, [2004] O.J. No. 1032 (Sup. Ct.), at para. 8. Given the potential for such responses to be raised to the amended Statement of Defence, I find that any potential prejudice to the plaintiff from the expiry of limitation periods, which I have in any event determined to be self-caused, is purely speculative.
Estoppel
[40] The plaintiff submits that the defendant should be estopped from raising the Insurance Act defence at this point in the litigation. To provide legal ballast for this argument, the plaintiff relies on cases in which insurers, aware of circumstances that permit denial of coverage to an insured, seek to deny coverage only after engaging in a course of conduct upon which an insured has relied to their detriment: Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, at para. 16; Western Canada Accident & Guarantee Insurance Co. v. Parrott (1921), 61 S.C.R. 595, at 5 (QL); Snair v. Halifax Insurance Nationale-Nederlanden North America Corp., [1995] N.S.J. No. 424 (S.C.), at paras. 60-62.
[41] The plaintiff asserts estoppel should apply given the following: The defendant has been aware of the potential for the Insurance Act defence since receiving the Accident Benefits file in May 2015, but did not raise the defence for some fourteen further months, once the two-year limitation period for actions against Chalmers or the insurance broker or the insurer had run. For a year after discoveries, the defendant had encouraged plaintiff’s counsel to believe that the matter could settle. Defendant’s counsel repeatedly suggested mediation, and mediation briefs were prepared and filed.
[42] The doctrine of estoppel does not fit comfortably in the circumstances of this case. The cases relied upon by the plaintiff relate to a different context, coverage. Implicit in each is the pre-existing relationship between insurer and insured, which assists in causing the insured to be led astray by representations from the insurer, and which heightens expectations that the insurer should be aware of the circumstance that disqualifies an insured from coverage. Our context is not insurer and insured; the plaintiff’s position invites a conclusion barring insurance companies from advancing late-discovered defences against opposing parties, unfairly hindering them in an adversarial context.
[43] Even if the plaintiff’s authorities should be applied to this context, the facts of this case do not satisfy the doctrinal requirements for estoppel. The first prerequisite is that “there must be knowledge on the part of the insurer of the facts which indicate lack of coverage”: Snair, at para. 60. In Western Canada Accident & Guarantee Insurance Co., at 5 (QL), the various decisions in the Supreme Court of Canada focus on the insurance company’s continued defence of an action, even though it was aware of a circumstance that would void its duty of coverage. In addition, the conduct of the insurer that is relied upon by the plaintiff to ground its belief that the insurer was not relying on a statutory bar to the claim “must be such that the trier of fact can infer from it that it was so intended”: Maracle, at para. 16 [emphasis added].
[44] What we have here is a busy defendant’s counsel who only fully familiarized himself with his file when he was required to do so. Uncontradicted affidavit evidence on this motion indicates that defendant’s counsel knew of an exclusion of coverage on the date of the discoveries, but failed to appreciate the meaning of the plaintiff’s excluded status through operation of the OPCF 28A until June 2016, when he immediately cancelled the upcoming mediation, and sought to defer the October pre-trial. He did not intend to mislead the plaintiff into believing that he was not relying on the Insurance Act defence; rather, he simply did not turn his mind to it.
[45] In my view, neither the legal context nor the application of the facts of this case to the elements of estoppel justify its use to prevent the requested amendment of the Statement of Defence.
Conclusion
[46] I find no prejudice in the circumstances of this case that could not be compensated for by an order for costs.
[47] Accordingly, leave is granted the defendant to amend his Statement of Defence in accordance with the Amended Statement of Defence annexed to his Notice of Motion, to be filed with the Court within 20 days.
[48] The trial judge will be in the best position to determine whether the reports acquired by the plaintiff for the aborted mediation are of no use going forward, and should be reimbursed by a costs award, or were part of normal case preparation in any event. I defer to the trial judge determination of any costs award for these expenses.
[49] If the parties are unable to agree on the costs of this motion, they may file written submissions of no more than three pages with the court within 30 days.
A.D. Kurke J. Released: July 17, 2017