CITATION: Messari et al. v. Alberelli et al., 2017 ONSC 5304

COURT FILE NO.: 14-60069

DATE: 2017/09/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashraf Ben Amiar Messari and Najat Bkhakhout

Plaintiff/Respondents

– and –

Tom Alberelli, Hadaba Fight Club and Peterborough Boxing Club

Defendant/Moving Parties

– and –

Dr. Paul Crabtree and Hassan Doe

Proposed Third Parties/

Respondents

Frank McNally for the Plaintiffs/Respondents

Travis Walker for the Defendants/Moving Parties

Jason Mercier for the Proposed Third Party/Respondent Dr. Paul Crabtree

HEARD: August 15, 2017

REASONS FOR JUDGMENT

JUSTICE S. GOMERY

1In February 2014, Ashraf Ben Amiar Messari and his mother, Najat Bkhakhout, sued Messari’s coach and two boxing clubs. Messari is seeking damages for injuries he suffered in an April 2011 boxing match. This lawsuit was served on the defendants on November 5, 2014. The defendants had until November 5, 2016, to issue a third party claim against anyone else they thought might be liable for Messari’s injuries. They did not meet that deadline, and now ask this court to permit them to begin a third party claim “nunc pro tunc” – that is, backdated – to November 4, 2016.

2The plaintiffs have consented to a nunc pro tunc order. The proposed third party defendant, Dr. Paul Crabtree, opposes the motion.

Background

Background

3The events leading to this motion are not in dispute:

April 16, 2011 - Messari is injured in a boxing match.

Feb. 10, 2014 - Messari and Bkhakhout begin this action by issuing a notice of action and later a statement of claim.

Nov. 5, 2014 - The plaintiffs serve the notice of action and statement of claim on the defendants.

April 10, 2015 - The defendants serve a statement of defence.

May 21, 2015 - Defense counsel receives the medical record of Messari’s family physician, Dr. Crabtree. They learn that, on February 9, 2011, Dr. Crabtree completed a Boxing Ontario medical form certifying that Messari was fit to box. Based on this record, defense counsel concludes that a third party claim should be made against Dr. Crabtree.

July 29, 2015 - Defense counsel learns that Messari was attacked with a baseball bat by someone named Hassan in 2015. They conclude that a third party claim should also be made against this person, but do not know his last name or whereabouts.

Nov. 2015 - A private investigator hired by defense counsel reports that he has been unable to discover Hassan’s last name or location.

Oct. 25, 2016 - Defendants instruct their lawyers to issue a third party claim against Dr. Crabtree and “Hassan Doe”.

Nov. 3, 2016 - Defense counsel tells plaintiffs’ lawyers for the first time that they intend to issue a third party claim. In emails and phone messages, they ask the plaintiffs to consent to the issuance of a claim.

Nov. 4, 2016 - Having failed to get a response from the plaintiffs, defense counsel files a notice of motion seeking leave from the court to issue a third party claim, which they serve on the plaintiffs. Although the earliest available return date is February 14, 2017, defense counsel does not seek a nunc pro tunc order in the notice of motion.

Nov. 8, 2016 - Plaintiffs’ counsel tells defense counsel that they will oppose their motion to issue a third party claim.

Jan. 27, 2017 - Plaintiffs’ counsel tells defense counsel that they will no longer oppose the motion. As a result, defense counsel convert the motion to a motion in writing and on consent.

March 8, 2017 - After considering the motion in writing, Master Nathalie Champagne directs that it be argued in person after notice has been given to Dr. Crabtree “given the potential for a limitations defense”.

May 8, 2017 - Defense counsel files a fresh notice of motion for leave to issue a third party claim. For the first time, they ask the court to issue a nunc pro tunc order. The returnable date is August 15, 2017.

July 31, 2017 - Dr. Crabtree is served with the notice of motion.

What is a nunc pro tunc order and why do the defendants want it?

What is a nunc pro tunc order and why do the defendants want it?

4Nunc pro tunc is a Latin phrase meaning “then for now”. In seeking a nunc pro tunc order, a party is asking the court to authorize the backdating of some step that should have taken place earlier.

5The Court has the power to make a retroactive order under Rule 59.01. In general, an order is effective from the date on which it is made, but the court may make an order effective on any date in certain circumstances.

6The defendants are seeking a nunc pro tunc order in this case because, without it, their third party claim would be time-barred. A third party claim must be made no later than two years after the defendants are served with the statement of claim (sections 4, 5(2) and 18(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B). The defendants were served with Messari’s lawsuit on November 5, 2014, and they had until November 5, 2016, to issue a third party claim. As a result, if I simply issue an order permitting the third party claim to go ahead as of today, Dr. Crabtree would be able to ask the court to dismiss it on the basis that the defendants did not meet the deadline to issue it.

When is a nunc pro tunc order available?

When is a nunc pro tunc order available?

A. Traditional use of nunc pro tunc discretion

Traditional use of nunc pro tunc discretion

7Even in the absence of Rule 59.01, the court would be able to make a nunc pro tunc order as an exercise of its inherent equitable jurisdiction. Courts may issue backdated orders to prevent prejudice based on events beyond the control of the parties.

8The earliest examples of nunc pro tunc orders were in cases where a plaintiff in a personal action died after their case was argued in court but before the judge released their decision. In such a case, if the decision were not backdated to the hearing date, the action would have to be dismissed because the plaintiff’s personal rights died with them. In this scenario, courts held that a plaintiff (or rather their estate) should not be penalized due to the court’s failure to render judgment more quickly (Turner v. London and South-Western Railway Co. (1874), L.R. 17 Eq. 561; Gunn v. Harper (1902), 3 O.L.R. 693 (Ont. C.A.); Young v. Town of Gravenhurst (1911), 24 O.L.R. 467 (Ont. C.A.); Hubert v. DeCamillis (1963), 41 D.L.R. (2d) 495, 1963 CanLII 459 (BC SC) (B.C.S.C.); Monahan v. Nelson, 2000 BCCA 297, 76 B.C.L.R. (3d) 109; Medina v. Bravo, 2008 BCSC 1307, 87 B.C.L.R. (4th) 369).

9Backdated orders have also been issued where a party could have reasonably expected to get a hearing within a certain timeline, but was prevented from doing so because of the court’s schedule. Unexpected delays in court schedules are not a new phenomenon. More than a hundred years ago, the Court of Queen’s Bench held that parties should not be deprived of their remedies if “an extraordinary glut of business” before the courts prevented them from getting a court date within the usual timeline (The Queen v. Justices of County of London and London County Council, [1893] 2 Q.B. 476 at p. 488).

10More recently, nunc pro tunc orders have been issued where delays have been caused by something other than the court’s schedule. An example relevant to this motion is Numainville v. Nanson, 2006 CanLII 27868, [2006] O.J. No. 3274 (Ont. Sup. Ct.). Nanson filed and served a motion for leave to issue a third party claim against Fruitman before the expiry of the two-year limitation period. The original returnable date for the motion was prior to the expiry. After being served, however, Fruitman delayed the hearing until after the limitation period had passed. The court gave Nanson leave to issue the third party claim against Fruitman backdated to the date that the motion was originally supposed to be heard. It held that a nunc pro tunc order was in the interests of justice because the delay was not the defendant’s fault.

B. What are the current rules?

What are the current rules?

11The Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801 dealt with three class actions where the plaintiffs had to obtain leave to pursue statutory remedies under the Ontario Securities Act. In each case, the plaintiffs failed to obtain leave prior to the expiry of the three-year deadline under the Act. In her decision for the majority, Justice Côté reviewed the basis for nunc pro tunc jurisdiction and established a two-step analysis for deciding whether a court ought to issue a backdated order:

1. The party seeking the order must meet the “red-line rule”.

2. If the applicant meets the red-line rule, the court must weigh factors that support or argue against the exercise of equitable discretion.

(1) The red-line rule

The red-line rule

12The red-line rule means that a notice of motion for a nunc pro tunc order must be filed and served prior to the expiry of the relevant limitation period (CIBC v. Green at para. 93; Pennyfeather v. Timminco Ltd., 2017 ONCA 369 at para. 42; 1186708 Ontario Inc. v. Gerstein, 2017 ONSC 1217 (Ont. Div. Ct.) at para. 2). The party seeking a backdated order must have been ready to present argument to the court prior to the deadline to obtain it.

13This rule makes sense for two reasons. First, it requires the party asking for the order to act diligently. Second, once the limitation period has passed, the court is no longer dealing with a procedural irregularity that can be fixed by simply backdating an order. If a party waited until after the limitation period had passed, its rights would already have lapsed when it filed the motion.

(2) Factors relevant to exercise of equitable jurisdiction

Factors relevant to exercise of equitable jurisdiction

14If the red-line rule is met, CIBC v. Green directs the court to weigh factors for or against issuing a backdated order. These could include:

• Will the opposing party be prejudiced by a nunc pro tunc order?

• Would the order have been granted had it been sought at the appropriate time?

• Was the irregularity intentional?

• Will the order effectively achieve the relief sought or cure the irregularity?

• Was the delay caused by an act of the court?

• Will the order facilitate access to justice?

15In the end, the court is assessing the overall fairness of granting a backdated order by considering the diligence of the party seeking it, and potential prejudice to the opposing party if the order is granted.

16The focus on diligence is important because of the origins and purpose of the nunc pro tunc order. A party seeking a backdated order must persuade the court that their situation is due to factors beyond their control. They likely will not be able to do so if they let most of the limitation period pass without taking any steps to advance their rights, then sought the court’s help at the eleventh hour. As observed by Justice Côté, a party “cannot simply assume that he or she will be granted relief, doing nothing although knowing that the limitation period is going to expire” (CIBC v. Green at para. 100; see also Pennyfeather at para. 94 and Stratton v. Petro Canada, 2017 ONSC 4567 at paras. 27-30).

17A court must also consider how opposing parties will be affected if a backdated order is made.

18A nunc pro tunc order will be more difficult to obtain if it draws new parties into an existing lawsuit. In CIBC v. Green, the Supreme Court struck the part of a backdated order that would have permitted the addition of new defendants to the lawsuit. As Justice Côté noted, adding a new type of claim against parties already defending a lawsuit and adding entirely new defendants are two different things (CIBC v. Green at para. 107). The prejudice suffered by new defendants as a result of a nunc pro tunc order will be almost always be greater than any prejudice suffered by existing defendants.

Should I issue a backdated order in this case?

Should I issue a backdated order in this case?

Did the defendants meet the red-line rule?

Did the defendants meet the red-line rule?

19Given that the defendants did not issue a third party claim within 10 days of their statement of defence, they were required under Rule 29.02 either to get the plaintiffs’ consent or leave of the court to issue a third party claim prior to November 5, 2016. The defendants met the red-line rule by serving and filing their notice of motion on November 4, 2016.

Can the analysis stop here?

Can the analysis stop here?

20Using the CIBC v. Green framework, my next step would be to consider the factors relevant to issuing a nunc pro tunc order. But both the defendants and Dr. Crabtree argue that I do not need to do so, based on competing “crystallization” theories.

21The defendants say that the parties’ rights crystallize on the date a notice of motion is filed and served, and that third parties do not have standing to oppose a Rule 29.02 motion. As a result, so long as the defendants served and filed a notice of motion prior to the limitations deadline, the only question is whether the plaintiffs would be prejudiced by a backdated order. Since in this case the plaintiffs consent to a nunc pro tunc order, there is clearly no prejudice to them and I must issue the requested relief.

22In support of this position, the defendants rely on Philippine v. Portugal, 2010 ONSC 956, 261 O.A.C. 290. Philippine made a motion for leave to amend his statement of claim to allege conspiracy. Although the notice of motion was served in November 2006, it was not argued until January 2009. In the court’s view, this was entirely due to Philippine’s own unjustifiable delay. Despite this, Ferrier J. held that “the law is that the parties’ rights are crystallized at the date of service. ... As long as the motion is served within the limitation period, any delay in having it heard would go to prejudice and does not act as an automatic bar to amendment” (Philippine v. Portugal at paras. 44 and 45).

23To the extent that Philippine v. Portugal goes as far as the defendants say, it is at odds with the Supreme Court’s reasoning in CIBC v. Green. If rights crystallize on the date of service of the motion, there would never be any need for an assessment of the moving party’s diligence. This crystallization theory also flies in the face of the Court’s emphasis on the impact of a backdated order on new defendants. As noted by the defendants, if a motion to make a third party claim is issued within the limitation period, the proposed new defendant is not even necessarily put on notice that the motion will be argued. How can a third party’s rights crystallize when they are not even aware that their rights are in play?

24Dr. Crabtree makes a different crystallization argument. He argues that, in order to get a nunc pro tunc order, a party must ask for it in the notice of motion they file before the limitations deadline. In effect, the defendants’ right to an order crystallized on November 4, 2016. Since they did not ask for a backdated order in their November 4, 2016, notice of motion (or, for that matter, in the notice of motion that went before Master Champagne on March 8, 2017), Dr. Crabtree asks me to conclude that they cannot ask for it now.

25I do not agree with this line of reasoning. If Master Champagne had issued a non-backdated order on March 8, 2017, and the defendants had failed to appeal that order, I could not make a new, different order (Sandrabalan v. Toronto Transit Commission, 2009 CanLII 18298, [2009] O.J. No. 1610). But Master Champagne did not make such an order, and so the defendants do not face this problem. Furthermore, the red-line rule does not prevent a party from modifying their notice of motion to seek a backdated order after a deadline passes. In some cases, a party may assume that it will get a hearing date before the deadline, and so there will be no need to seek a nunc pro tunc order when they file and serve the motion.

26Having rejected the crystallization theories advanced by the parties, I turn now to an assessment of the defendants’ diligence in bringing the motion for leave, on the one hand, and prejudice to opposing parties, on the other.

Do the relevant factors weigh in favour of a nunc pro tunc order?

Do the relevant factors weigh in favour of a nunc pro tunc order?

27The defendants have not shown that their situation was caused by the court’s schedule or other events outside of their control. On the contrary, their current situation is the result of their own failure to act on information in a reasonably diligent way.

28After reviewing Dr. Crabtree’s medical record in May 2015, defense counsel concluded that the defendants should bring a third party claim against him. They then did nothing about this for 18 months.

29Defense counsel say that they did not act right away because they were trying to obtain information about the other proposed third party Hassan. They argue that this was reasonable because they did not want to issue two separate third party claims. But the defendants hit a dead-end in terms of the investigation of Hassan as of November 2015. They then nonetheless waited another year after getting the investigator’s report before taking any further steps to issue a third party claim against either Dr. Crabtree or Hassan Doe. The defendants offered no explanation for not taking any steps to advance a claim from November 2015 to November 2016.

30The defendants have in particular not explained why they waited until November 3, 2016 – 2 days before the expiry of the limitation period – to seek the plaintiffs’ consent to issue a third party claim. The defendants seem to have expected that the plaintiffs would respond within 24 hours and that they would immediately consent. They took an enormous gamble because, without the plaintiffs’ consent, the defendants could not reasonably expect that the court would hear a non-urgent motion the same day or the next day. They could have potentially argued that their motion was urgent, and so should be heard immediately. We have no way of knowing whether the court could have accommodated such a request, because the defendants did not seek an urgent hearing date.

31Will Dr. Crabtree be prejudiced by a backdated order? There is no evidence that he will suffer prejudice due solely to the delay between November 5, 2016, and July 31, 2017, when he was served with the notice of motion. However, if I issue a nunc pro tunc order, he will be prevented from raising a limitation argument, even though he was not put on notice of any claim against him until July 31, 2016, thirty-two months after Messari served his lawsuit on the defendants. In that sense, he would be prejudiced.

32Having weighed the relevant factors, I conclude that I should not make a backdated order. A nunc pro tunc order is designed to protect litigants from court delays or other events that they “could not anticipate, and could not obviate or calculate upon” (The Queen v. Justices of County of London and London County Council at p. 488). Such orders are not intended to shield litigants from the consequences of their own failure to act in a reasonably diligent way, particularly when their lack of diligence works to the prejudice of new defendants. The defendants here are the authors of their own misfortune, and therefore not entitled to equitable relief.

Conclusion

Conclusion

33The defendants’ motion for a nunc pro tunc order for leave to begin a third party claim is dismissed.

34If the parties cannot agree on costs, counsel for Dr. Crabtree may submit written argument on costs not exceeding four pages in length, plus a cost outline, to me within 30 days of release of this decision. The defendants shall provide any written response, also not exceeding four pages in length, within 30 days of receipt of Dr. Crabtree’s submissions.