COURT FILE NO.: CV-15-4429-00SR
DATE: 20170724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Chokler v. FCA Canada Inc.
BEFORE: Baltman J.
COUNSEL: Ethan Rogers for the Plaintiff
Christopher Rae for the Defendant
HEARD: July 18, 2017
E N D O R S E M E N T
[1] This is a motion by the plaintiff for leave to serve an expert’s report on the meaning of the term “information technology professional”.
[2] As the action has been set down for trial, leave to bring the motion is required pursuant to Rule 48.04 of the Rules of Civil Procedure. The issue before me is whether the plaintiff has demonstrated any basis upon which I should exercise my discretion to grant leave.
Factual Background
[3] The plaintiff sued for wrongful dismissal after his employment as a Controls Engineer was terminated by the defendant. In his Statement of Claim he alleges, among other things, that he was denied payment for overtime hours worked. In its Statement of Defence, FCA pleaded that it was exempt from paying overtime under the provisions of the Employment Standards Act, 2000 because the plaintiff was an “information technology professional” (ITP) as that term is defined in the OT Exemption Regulation.
[4] In his Reply the plaintiff joined issue with that defence, denying that he was an ITP as defined in the Regulation.
[5] Later, during oral discovery, counsel for the plaintiff posed several questions of FCA’s witness relating to its pleaded defence that the plaintiff was an ITP and therefore exempt from the overtime provisions of the Act. Following examinations for discovery, on January 6, 2017, the plaintiff set the action down for trial by delivering a Notice of Readiness for Pre-Trial Conference.
[6] On February 22, 2017, plaintiff’s counsel completed a “Report of Counsel/Party” which included the evidence he intended to call at trial. In that report, plaintiff’s counsel indicated he anticipated no experts would testify for either party and that no expert reports would be filed by the parties. At the assignment court on February 27, 2017, a pre-trial date was scheduled for May 10, 2017.
[7] On April 18, 2017, plaintiff’s counsel delivered a pre-trial brief, which addressed the witnesses the plaintiff intended to call. No expert witnesses were mentioned there.
[8] The first time that the plaintiff, through his counsel, ever raised the possibility of serving an expert report on the meaning of the term “ITP” was at the pre-trial conference on May 10, 2017. The presiding justice, Justice Bloom, ordered that the plaintiff would have six weeks to bring a motion seeking leave to serve an expert report, and scheduled the trial to proceed on May 7, 2018.
Submissions and Analysis
[9] Rule 48.04(1) provides that “any party who has set an action down for trial…shall not initiate or continue any motion…without leave of the court”.
[10] This rule is not a mere technicality; its purpose is to insure matters are not set down until they are ready for trial. This practice avoids delays and the loss of valuable trial time: Cromb v. Bouwmeester, 2014 ONSC 5318 at para. 21. It also, in my view, insures the parties are entirely focussed on the issues and any relevant evidence before they attend a judicial pre-trial, to avoid wasting judicial resources and their clients’ monies.
[11] That said, there is some dispute in the case law on the test to be applied under R. 48.04. The prevailing stream states that a party seeking leave under this provision must first establish that there has been a “substantial or unexpected change in circumstances”: Hill v. Ortho Pharmaceutical (Can.) Ltd., 11 C.P.C. (3d) 236 (Gen.Div.); Jetport v. Jones Brown Inc., 2013 ONSC 2740. Some subsequent cases have taken the more flexible approach that leave should be granted where it is “necessary in the interest of justice”: BNL Entertainment Inc. v. Ricketts [2015] ONSC 1737, paras. 14-15; Cromb, para. 35.
[12] In his subsequent thoughtful analysis of those two streams, Cornell J. posits that BNL is wrongly decided, and the stricter approach should prevail: Denis v. Lalonde, 2016 ONSC 5960, paras. 8-26. Since then Gray J. has adopted Cornell J.’s interpretation: Secure Solutions Inc. v. Smiths Detection Toronto Ltd. 2017 ONSC 2401, paras. 42-46. However, Maranger J. prefers the approach in BNL: Dhawan v. Arnold, 2016 ONSC 6304, para. 10.
[13] In Alofs v. Blake, Cassels & Graydon LLP 2017 ONSC 950 Gilmore J. identified the two streams but determined she need not decide which approach was correct, because even under the broader test the plaintiff’s motion failed: paras. 22-30. I come to the same conclusion in this case; however high or low the bar is set, the plaintiff cannot meet it here, as there is no explanation whatsoever for the delay or why this report is now needed.
[14] The plaintiff has known all along that FCA’s only pleaded defence to his allegation that he was entitled to be paid for overtime is that FCA believed he was exempt from the overtime provisions in the Regulation because he is an ITP. Plaintiff’s counsel specifically addressed that pleading in his Reply. Importantly, at the discovery plaintiff’s counsel asked questions relating to that specific defence.
[15] The only evidence filed by the plaintiff on this motion is an affidavit by his counsel, an associate at Mr. Rogers’ firm, in which she states that she believed FCA’s reliance on the plaintiff being an ITP was “part of multiple defences to this claim” and that she believed FCA “did not intend to rely heavily on same”. She gives no explanation whatsoever for either of those beliefs.
[16] Plaintiff’s counsel also states in her affidavit that it only “recently” came to her attention through some “communication with counsel for the Defendant that the Defendant actually intends to rely on [its only pleaded defence responding to the plaintiff’s allegation regarding overtime] at the trial of the action.”
[17] Plaintiff’s counsel provides no context, basis or explanation for this apparently critical communication. There is no date for the alleged communication, or any memo or note to confirm it. Defence counsel denies any such communication, and the affidavit supporting his position is unchallenged. On the evidence before me, I find FCA has not said or done anything to contradict its pleaded defence or to suggest it would not be relying on its pleaded defence.
[18] What is undisputed is that the first time plaintiff’s counsel ever raised the possibility of serving an expert report on the meaning of the term “information technology professional” was at the pre-trial conference on May 10, 2017.
[19] On these facts the only reasonable inference is that despite knowing this was a live issue throughout, plaintiff’s counsel did not turn his mind to the need for an expert report until he was at the pre-trial. However low the threshold may be, it is not in the interests of justice to give leave for the relief sought when there has been no plausible explanation for the delay beyond counsel’s inattention.
[20] Plaintiff’s counsel has attempted to divert this motion away from R. 48.04 and its requirements; in his factum he framed this as “a motion to extend the time for service of the expert’s report” under R. 53.03(4); then, in argument before me, he maintained it should be decided in accordance with the test under R. 53.08, where prejudice is the determining factor. While the defence concedes prejudice is not an issue here, the plaintiff’s strategy puts the cart before the horse; as he has already set the matter down for trial, before relief under R. 53.03 can be considered, the plaintiff must get leave to bring such a motion: see CIBC v. Wicks, [2000] O.J. No. 2700 (S.C.), at para. 2. For the reasons set out above, there is no basis here upon which to grant leave.
Conclusion
[21] The motion is dismissed. Based on costs submissions received from counsel, the plaintiff shall pay costs fixed at $3,500 inclusive of HST and disbursements.
Justice Deena Baltman
DATE: July 24, 2017
COURT FILE NO.: CV-15-4429-00SR
DATE: 20170724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Chokler v. FCA Canada Inc.
BEFORE: Justice D. Baltman
COUNSEL: Ethan Rogers for the Plaintiff
Christopher Rae for the Defendant
ENDORSEMENT
Justice Deena Baltman
DATE: July 24, 2017