CITATION: Martin Estate v. Moran, 2017 ONSC 5167

COURT FILE NO.: CV-16-0317

DATE: 2017 August 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ESTATE OF JOHN MARTIN, by its Estate Trustee KATHLEEN MARTIN Plaintiff

– and –

DONALD MORAN, LOIS MORAN, ABC CORPORATION and THE MUNICIPALITY OF BRIGHTON Defendants

A. Goldberg, for the Plaintiff

D. Baldwin, for the Defendants, Donald Moran, Lois Moran, and the proposed Defendant John Michael Moran The Municipality of Brighton not appearing The proposed Defendant Phillip James Moran not appearing

HEARD at Belleville: June 21, 2017, with additional written submissions received July 14, 2017, and July 28, 2017.

REASONS fOR DECISION ON MOTION

MacLeod-Beliveau J.

1The plaintiff brings this motion for an order amending the Order to Continue issued by the registrar to add Kathleen Martin in her personal capacity to the title of proceeding as in the original statement of claim; for an order amending the statement of claim by adding Phillip James Moran and John Michael Moran as additional party defendants; for an order to set a timetable; and for costs.

2The motion was originally brought and argued by counsel as a Rule 59.06 motion. I asked for, and received, further written argument as a Rule 37.14 motion, as the Order to Continue was made by the registrar, not by a judge.

RESULT:

3The motion to amend the Order to Continue is granted, adding Kathleen Martin’s name in her personal capacity to the title of proceeding thereby correcting an accidental omission in the Order to Continue dated January 14, 2014. In the exercise of my discretion, this order is effective nunc pro tunc, or retroactively, to January 14, 2014.

ISSUE:

4The sole issue in this case is:

1. Should the Order to Continue of the registrar, issued January 14, 2014, be amended nunc pro tunc to include the plaintiff Kathleen Martin in her personal capacity?

RELIEF AGREED TO BY THE PARTIES:

5At the hearing of the motion, the parties agreed on the following relief:

1. The proposed defendant John Michael Moran, represented by Mr. Baldwin, shall be added as a party on the condition that it is without prejudice to any limitation defence.

2. The County of Northumberland shall be deleted from the title of proceeding, the action having been discontinued against it by the plaintiffs.

3. The defendant Lois Moran shall be deleted from the title of proceeding, and the action shall be dismissed as against her without costs.

4. The new timetable shall be in accordance with Tab 1(C) of the motion record as follows:

i. Examinations for Discovery by October 2, 2017;

ii. Compliance with Undertakings by December 1, 2017;

iii. Motions arising from Undertakings by March 2, 2018;

iv. Mediation by August 31, 2018;

v. Action set down for trial by December 31, 2018.

5. A fresh as amended statement of claim shall be served and filed in accordance with the order to be issued and entered within 30 days of the release of this decision.

6The proposed defendant, Phillip James Moran, did not appear, although duly served. I order that Phillip James Moran shall be added as a party on the same condition as the proposed defendant, John Michael Moran, without prejudice to any limitation defence.

POSITIONS OF THE PARTIES:

7The parties disagree on the relief sought for an order issued by the registrar amending the Order to Continue to include Kathleen Martin in her personal capacity. This issue was reserved, along with the issue of costs for decision.

8The plaintiff’s position is that the Order to Continue should be amended retroactively to include the plaintiff, Kathleen Martin, in her personal capacity to correct an accidental omission made in the order by the registrar. Kathleen Martin intends to advance her claim as a Family Law Act claimant, as she has always intended to do (R.S.O. 1990, c. F.3, s. 61). The defendants were made aware of this fact at the Examinations for Discovery on July 29 and 30, 2015.

9The defendants’ position is that Kathleen Martin is statute-barred from bringing a motion for an order to amend the Order to Continue, as the limitation period has expired, and that Rule 5.04 (2) prevents her from being added as a party. The defendants also argue that the order cannot be retroactively effective.

BACKGROUND FACTS:

10This action arises out of alleged negligence, breach of contract, and breach of implied warranty by the defendants, who sold a tractor to the plaintiff, John Martin, now deceased. The claim is that on or about August 10, 2011, in Brighton, Ontario, at 10:30 a.m., the tractor was defective and the brakes malfunctioned. As a result, the tractor rolled down a hill, and ejected John Martin, causing him to suffer permanent and serious injuries. Kathleen Martin is his wife.

11A statement of claim was issued December 3, 2012, naming John Martin and Kathleen Martin as plaintiffs. John Martin claims damages of $10,000,000.00 and Kathleen Martin claims $200,000.00 under the Family Law Act, plus interest and costs. The defendants, Donald Moran and Lois Moran, delivered a statement of defence on May 16, 2013.

12John Martin died on September 22, 2013. An Order to Continue was issued by the registrar on January 14, 2014, naming the plaintiff, Kathleen Martin, as estate trustee pursuant to the terms of John Martin’s will.

13Through inadvertence, the Order to Continue did not also properly name the plaintiff, Kathleen Martin, in her personal capacity as a Family Law Act claimant, as she was named in the original statement of claim.

14I find that the error first appeared to come to plaintiff’s counsel’s attention at or around the time of the Examinations for Discovery on July 29 and 30, 2015. Since that time, the plaintiff has repeatedly sought dates from defendants’ counsel to bring this motion. The first such request was made on August 13, 2015.

15On September 11, 2015, counsel for the defendants advised they were bringing a motion to transfer the action from Toronto to Belleville, which required the plaintiff’s consent. The defendants stated that they would then canvas dates for the motion to amend the Order to Continue to be heard in Belleville.

16On November 23, 2015, the plaintiff sent a follow-up letter requesting the status of the transfer motion and reminding the defendants that a date for the motion to amend the Order to Continue had to be set. A further follow-up letter was sent by plaintiff’s counsel on January 5, 2016.

17On July 20, 2016, the defendants sent the plaintiff the order of Tausendfreund J. dated April 28, 2016, transferring this action to Belleville. Immediately thereafter, the plaintiff scheduled the motion to be heard in Belleville on the first available long motion date of November 27, 2017, and filed materials on October 4, 2016.

18The defendants requested and obtained an adjournment of the motion on November 27, 2016, to January 3, 2017, and another adjournment to March 28, 2017. The defendants then delivered their materials to the plaintiff on March 22 and 23, 2017, and opposed the relief sought. The plaintiff’s factum was delivered on March 24, 2017. The defendants then opposed the adjournment request by the plaintiff. Ultimately, the defendants consented and the motion was adjourned to June 21, 2017, when it was argued on the merits.

ANALYSIS:

The Application of Rule 37.14

19The parties originally proceeded under Rule 59.06(1) for an order to amend the Order to Continue. This rule provides that an order that contains an error arising from an accidental slip or omission, or that requires amendment in any particular on which the court did not adjudicate, may be amended on a motion in the proceeding. In my view, this rule applies to orders made by a judge. The order in question here is an order made by the registrar.

20Rule 11 provides that an Order to Continue is obtained from the registrar upon requisition without notice to any other party. Unlike Rule 48.14(10), Rule 11 does not refer to 37.14 with regards to amendments. However, Rule 37.14 provides for setting aside, varying, or amending a registrar’s orders where a party is affected. Rule 37.14 does not suggest a limited application to certain types of orders, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are intended to be interpreted broadly (Rule 1.04). The ultimate purpose of Rule 37.14 is to prevent unfairness or a miscarriage of justice by affording a party an opportunity to present her case provided there are no countervailing considerations (Ontario (Attorney General) v. 15 Johnswood Crescent, 2009 O.J. No. 3971, at para. 30). I find that this is the appropriate rule under which the issue in this case is to be decided. In this case, the plaintiff seeks an amendment of the registrar’s Order to Continue.

21Rule 37.14(3) specifically provides that a party who is affected by an order of a registrar may move to set aside, vary or amend the order before a judge or master. The rule also specifies that the motion should be brought forthwith after it comes to the person’s attention at the first available hearing date.

22The majority of motions under Rule 37.14 relate to setting aside a registrar’s order of dismissal for delay. Counsel were unable to provide me with any decisions considering the test for setting aside, varying or amending an Order to Continue. Counsel were also unable to provide any decisions similar to the facts of this case where a party has been omitted from the Order to Continue that was properly named in the statement of claim and a limitation period had expired.

23The test to set aside a registrar’s Order to Continue, I find, should be similar to the test to set aside a registrar’s order of dismissal for delay. This test is set out by Master R. Dash in Reid v. Dow Corning Corp., 2001 CarswellOnt 2213, at para. 41. The test requires a contextual approach (Wellwood v. Ontario Provincial Police, 2010 ONCA 386, at para. 20). The test is adaptable; it has previously been found to apply to a motion for an order setting aside an order dismissing an action as abandoned (Bagus v. Telesford, 2014 ONSC 3512, at footnote 2).

24In balancing the parties’ interests, the court must consider:

1. The explanation for the delay,

2. The inadvertence,

3. The prompt move to bring the motion to address the issue, and

4. The prejudice to the defendant.

25In Johnswood Crescent, at para. 34, Strathy J. (as he was then) restated the Reid factors and added a fifth consideration:

5. The underlying merits of the case.

I will now apply these five factors to the facts of this case.

(1) Explanation

26I agree with the plaintiff that the explanation for the delay is reasonable and that delay is not a factor here. Once the plaintiff became aware of the issue at or about the time of the discoveries on July 29 and 30, 2015, I am satisfied that she proceeded with due diligence in getting the motion date for the matter to be argued. Part of the delay was caused by the defendants seeking to transfer the file to Belleville.

(2) Inadvertence

27The inadvertence was twofold. Firstly, plaintiff’s counsel erred in preparing the requisition and the draft Order to Continue that omitted the plaintiff, Kathleen Martin, in her personal capacity, and in presenting it to the registrar. Secondly, the registrar erred in reviewing the file and pleadings to ensure the order signed was in the proper form and addressed all parties in the action, in accordance with usual court office procedures.

(3) Promptness

28As to promptness, within the context of this litigation, the plaintiff, I find, moved promptly to have the issue addressed by the court.

(4) Prejudice

29The fourth consideration is what the defendants rely upon, namely prejudice. This issue is a key consideration (Bagus, at para. 23). In cases setting aside dismissals for delay where a limitation period has passed, the plaintiff is required to rebut a presumption of prejudice to the defendant. The force of the presumption depends on the length of time that has passed since the expiration of the limitation period (Vaccaro v. Unifund Insurance Co., 2011 ONSC 5318, at para. 22). The plaintiff can overcome the presumption by showing that records have been preserved and key witnesses are available (see Wellwood, at paras. 60, 62; 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640, at para. 52; Krishnamoorthy v. Zaidi, 2016 ONSC 5689, at para. 36). The onus then shifts to the defendants to establish actual prejudice (Bagus, at para. 23).

30In this case, the court must consider the prejudice to the defendants’ ability to defend the action that would arise from steps taken following the Order to Continue, or that would result from its amendment (Bagus, at para. 23; Brinkhurst v. Bebluk, 2016 ONSC 4255, at para. 61, citing 806480 Ontario Ltd. v. RNG Equipment Inc., 2014 ONCA 488). Ultimately, the court must balance any prejudice to the defendants against the prejudice to the plaintiff in refusing to amend the Order (Brinkhurst, at para. 62; MGM Plastics Limited v. Vincour International Inc., 2015 ONCA 28, at paras. 25-26).

31The plaintiff’s position is that the defendants will suffer no prejudice should the order sought be granted.

32I find there is no actual real prejudice to the defendants in making the order sought by the plaintiff. The defendants were well aware that the plaintiff, Kathleen Martin, was pursuing her Family Law Act claim, as was discussed at the time of the discoveries in July 2015. Despite the absence of Kathleen Martin as a Family Law Act plaintiff in the title of proceeding, this matter has otherwise proceeded as it would have in the normal course. As such, records have been preserved in anticipation of the litigation on behalf of John Martin’s estate by its trustee, Kathleen Martin.

33With regards to any key witnesses, the events in question occurred less than six years ago. This is not a lengthy enough period of time to significantly impair the reliability of any testimony. In Brinkhurst, at para. 70, Master Pope noted that while the case had faced significant delays, the plaintiffs had never abandoned the action. Master Pope held that the passage of nine years was not sufficient to overcome the prejudice to the plaintiff in dismissing the action.

34The issue of prejudicial reliance on the registrar’s order often arises in the context of dismissal orders (Krishnamoorthy, at para. 44). Reliance does not pose a significant issue in the case of this Order to Continue. While time has elapsed, the defendant was initially aware of the extent of the exposure and substance of the moving party’s claim.

35The defendants of this matter are still fully able to defend the action. The prejudice to the plaintiff of having her case dismissed, I find, far exceeds any potential prejudice to the defendants.

(5) Underlying Merits

36The fifth consideration of the case’s underlying merits supports the amendments sought. The underlying merits of the plaintiff’s case militate in favour of adding an initial plaintiff back to the record. Moreover, our civil justice system generally prefers to have a case heard on its merits (Bagus, at para. 26).

37I find that the limitation period is not an issue with regards to adding a plaintiff who was properly named in the statement of claim at the time it was issued. Although Kathleen Martin was inadvertently omitted from the Order to Continue, she always intended to assert and pursue her claim. I specifically reject the defendants’ limitation period defence and contention that Rule 5.04(2) applies. The court is not prevented from making the order sought.

Retroactive Effect of the Order to Amend

38Decisions involving orders with retroactive effect under Rule 37.14 often deal with time extensions for service (see Vaccaro, at para. 74; Beynon v. Fotopoulos, 160 A.C.W.S. (3d) 162, 2007 CanLII 36074 (Ont. S.C.J.), at para. 3; Coupey v. Hamilton Police Services Board, 139 A.C.W.S. (3d) 628, 2005 CarswellOnt 2220, at para. 28). The consideration that applies to delays in service is prejudice. After applying the Reid factors in Vaccaro, Master Dash turned to the issue of delay in service and reapplied the fourth element of prejudice before granting an extension of time nunc pro tunc (Vaccaro, at para. 74). A similar approach should apply to the retroactive order sought in this case.

39As stated by Pugsley J. in Bruce Grey Child and Family Services v. G.(R.), 2015 ONCJ 412, at para. 53, nunc pro tunc orders are “best suited to correct slips or oversights of a procedural nature”. These orders are granted routinely in connection with administrative, clerical or procedural errors or omissions (L. (A.) v. M. (S.), 2009 CanLII 37344 (Ont. S.C.J.), at para. 39). The omission of Kathleen Martin as a Family Law Act plaintiff from the Order of Continue was an administrative error. The order now sought by the plaintiff is not one with substantive legal significance. As such, it is well within this court’s purview to amend the Order of Continuance nunc pro tunc, or retroactively, to January 14, 2014.

40In Investissements Calnar Inc. v. Amore Foods Corp., 2007 ONCA 836, at para. 6, the court held that, “a Rule 11 Order to Continue Proceedings is procedural and neutral only. It simply allows the continuation of a proceeding where there has been a transmission of interest in that proceeding to another. It cannot create substantive rights.” If a Rule 11 Order to Continue cannot create a substantive right, it should not be able to similarly take away a substantive right. It should not be able to statute-bar the Family Law Act claim of the plaintiff, Kathleen Martin, due to inadvertence.

41The court’s jurisdiction under Rule 37.14 is discretionary and requires the balancing of the interests of the parties involved. I have considered all of these factors in my decision and I find it is in the interests of justice that the Order to Continue issued by the registrar be amended as sought, and that Kathleen Martin’s claim should not be dismissed as a result of inadvertence and administrative error. It is preferred to have disputes between parties decided on their merits (MGM Plastics, at paras. 24, 28).

CONCLUSION:

42In the exercise of my discretion, after considering all of these relevant factors and balancing the parties’ interests, I find that the Order to Continue shall be amended to include Kathleen Martin as a plaintiff in her personal capacity, effective January 14, 2014. The agreed upon relief and adding Phillip James Moran as a party defendant shall be included in the order as in paragraphs 5 and 6 of the decision. MacLeod-Beliveau, J shall sign the order after approval by counsel.

43In the result, the title of proceeding going forward shall be as follows:

ESTATE OF JOHN MARTIN, by its Estate Trustee KATHLEEN MARTIN and KATHLEEN MARTIN Plaintiffs

– and –

DONALD MORAN, JOHN MICHAEL MORAN, PHILLIP JAMES MORAN, ABC CORPORATION and THE MUNICIPALITY OF BRIGHTON Defendants

COSTS:

44If counsel are unable to agree on costs, I will receive brief written submissions on or before September 29, 2017. Thereafter, I will determine the issue of costs based upon the materials filed.

Honourable Madam Justice Helen MacLeod-Beliveau