COURT FILE NO.: 16-68719
DATE: 2018/06/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jamie Knox, by her Litigation Guardian, Ashley Knox, Plaintiff
AND
Loblaws Inc. and College Square Properties Inc. and United Cleaning Services Limited and Ancar Cleaning Inc. and PepsiCo Beverages Canada, a business unit of PepsiCo Canada ULC and Coca-Cola Ltd., Defendants
BEFORE: Justice S. Corthorn
COUNSEL: Brenda Hollingsworth, for the Plaintiff
No one appearing for any of the Defendants
HEARD: In writing
ENDORSEMENT
corthorn j.
Introduction
[1] The plaintiff’s claims arise from a fall that occurred inside a Loblaws Store located on Baseline Road in the City of Ottawa.
[2] The minor plaintiff seeks leave of the court to discontinue the action against the defendant, College Square Properties Inc. In addition, the minor plaintiff requests an order dispensing with service of the notice of motion and motion record on the Children’s Lawyer.
[3] The proposed discontinuance of the action against College Square is based on confirmation received in writing from counsel for Loblaws that, because the fall occurred inside the store, College Square, as the lessor of the property, is not responsible for the injuries and losses suffered by the plaintiff.
Disposition
[4] I am unable at this time to grant the relief requested.
Analysis
[5] Two affidavits are filed in support of the relief requested. The first is from plaintiff’s counsel; the second is from the litigation guardian.
[6] In her affidavit, counsel for the plaintiff states that she received from counsel for the defendants, Loblaws, Coca-Cola Ltd., and PepsiCo Beverages Canada, consent on behalf of their respective clients to the discontinuance of the action and crossclaims by the latter two defendants against College Square. Loblaws did not crossclaim against College Square.
[7] College Square has not yet delivered a statement of defence in the action. A representative from the liability insurer of that corporation communicated with counsel for the plaintiff. That individual requested that the action be discontinued against College Square.
[8] In March 2017, counsel for Loblaws sent a letter to counsel for the plaintiff in which the former stated, “[a]s this incident occurred within the store premises, I confirm that liability, if any, rests with [one or more of the other defendants named in the amended title of proceeding].” It appears that the March 2017 letter from counsel for Loblaws was sent in follow up to communication between the representative of the liability insurer of College Square and counsel for the plaintiff. At the conclusion of her letter, counsel for Loblaws requests that counsel for the plaintiff “discontinue as against College Square Properties Ltd. (sic) as they are an uninvolved defendant in these proceedings.”
[9] I have a number of concerns with respect to the contents of the motion record and the relief requested. First, there is an inconsistency as to whether the relief to which some of the defendants consent is to the discontinuance or to the dismissal, without costs in either event, of the action against Loblaws. In that regard, I note the following:
• In email communication in May 2017 from counsel for Coca-Cola, consent is provided to “discontinuance of the action and all crossclaims as against College Square.” (Emphasis, added.) No request is made for an opportunity to approve a draft order as to form and content.
• In email communication in July 2017 from counsel for PepsiCo, consent is provided to “a dismissal of the claim and cross claims as against College Square on a without costs basis.” (Emphasis, added.) Counsel for PepsiCo requests that he be provided with a draft order for approval as to form and content.
[10] There is an important distinction between the effect of the discontinuance of an action and the effect of the dismissal of an action. Sub-rule 23.04(1) of the Rules of Civil Procedure provides that, “[t]he discontinuance of all or part of an action is not a defence to a subsequent action, unless the order giving leave to discontinue or a consent filed by the parties provides otherwise” (R.R.O. 1990, Reg. 194). On the other hand, the dismissal of an action can in certain circumstances be a defence to a subsequent action.
[11] Based on the current record (a) the plaintiff does not have consent from all of the defendants to the relief requested, and (b) in any event, the inconsistencies in the consent provided preclude the court from granting the relief requested.
[12] Second, the positions of the defendants, United Cleaning Services and Ancar Cleaning (“the Defendant Cleaners”) on the motion are not known. The motion record was served on the Defendant Cleaners, by sending a copy of the motion record to their counsel of record. Service was effected by courier two days following March 14, 2018 (sub-rule 16.05(2.1) of the Rules.
[13] At paragraph 22 of her March 14, 2018 affidavit, counsel for the plaintiff says that, “the [Defendant Cleaners] have not indicated their position on discontinuing the action against the Defendant College Square Properties Inc.” The Defendant Cleaners are identified by counsel for the plaintiff as having cross-claimed against all defendants, including College Square. The statement of defence and crossclaim of the Defendant Cleaners is dated October 2017.
[14] The affidavit of service was sworn on May 11 and filed with the court on May 15, 2018. There were approximately two months from the date of service to the date of filing of the motion record within which counsel for the plaintiff could have followed up with counsel for the Defendant Cleaners. Yet there is no evidence of any steps taken to follow up with counsel for the Defendant Cleaners or any response on behalf of the Defendant Cleaners to the motion record.
[15] There is no explanation as to (a) what communication, if any, counsel for the plaintiff has had with counsel for the Defendant Cleaners, or (b) why it has not been possible to obtain from counsel for those defendants their position on the proposed discontinuance of the action against College Square. The draft order filed with the motion record provides for the action “and all cross claims” to be discontinued as against College Square. That order, if made, would include the crossclaims of the Defendant Cleaners.
[16] Third, in the event the relief sought is an order granting the plaintiff leave to discontinue the action against College Square then the requirements of sub-rule 7.07.1(2) have not been met. Sub-rule 23.01(2) of the Rules provides that a party under a disability may discontinue an action only with leave of a judge obtained on a motion under rule 7.07.1. The latter rule provides as follows:
(1) If any party to an action is under a disability, the action may be discontinued by or against the party under rule 23.01 only with leave of a judge.
(2) Notice of a motion for leave under subrule (1) shall be served on the party’s litigation guardian and, if the litigation guardian is not the Children’s Lawyer or the Public Guardian and Trustee,
(a) on the Children’s Lawyer, if the party is a minor; or
(b) on the Public Guardian and Trustee in any other case.
[17] The affidavit of service filed reflects service of the motion record on all of the defendants. There is no evidence that the motion record was served on the litigation guardian. As a result, I am unable to conclude that the plaintiff has complied with sub-rule 7.07.1(2).
[18] Fourth, the relief requested includes an order dispensing with the requirement for service of the motion record on the Children’s Lawyer. That requirement arises pursuant to sub-rule 7.07.1(2)(a) because the litigation guardian is someone other than the Children’s Lawyer. There is nothing in the record that addresses the request for an order dispensing with the requirement for service of the motion record on the Children’s Lawyer. It is not possible to consider the request for that relief given the lack of grounds in the notice of motion and evidence in the supporting affidavits.
[19] Fifth, in his affidavit, the litigation guardian states, “[m]y counsel has explained to me the rationale behind discontinuing the action against [College Square]” and “I believe that discontinuing the action against [College Square] is in the best interest of my daughter, Jaime Knox.” There is nothing in the litigation guardian’s affidavit setting out his understanding of the “rationale” explained to him.
[20] Nor is there anything in the litigation guardian’s affidavit identifying the basis for his belief that discontinuance of the action against College Square is in the best interest of his daughter. At paragraph 8 of his affidavit the litigation guardian says, “I have read the draft Affidavit of [counsel for the plaintiff]. I agree with the contents of the Affidavit.” That evidence is not sufficient for the purposes of this motion. I have no way of knowing whether the draft affidavit reviewed by the litigation guardian is the same as the affidavit sworn by counsel in March 2018 and included in the motion record.
[21] Sixth, there is no indication that the draft order filed with the motion record has been approved as to form and content on behalf of any of the defendants. In any event, I have two concerns with respect to the draft order:
• It includes a term that “there shall be no costs of the motion.” It is unlikely that any of the defendants have incurred costs on the motion. I assume that term is included in the draft order to eliminate the potential for the plaintiff to seek costs of the motion at a later date (i.e. as part of the action in its entirety). It would be helpful if the basis for the inclusion of that term in the draft order were explained in the affidavit evidence in support of the motion; and
• The draft order does not address the request in the notice of motion for an order dispensing with the requirement to serve the motion record on the Children’s Lawyer. Has the request for that relief been abandoned? If so, then the motion record must be served on the Children’s Lawyer. If not, then that element of the relief needs to be addressed in the order (and in the motion record, as discussed above).
Summary
[22] Additional materials are required to address the concerns set out in this endorsement. The additional materials, when filed in the usual manner, shall be directed to my attention. I remain seized of the matter.
Madam Justice Sylvia Corthorn
Released: June 13, 2018
COURT FILE NO.: 16-68719
DATE: 2018/06/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jamie Knox, by her Litigation Guardian, Ashley Knox, Plaintiff
AND
Loblaws Inc. and College Square Properties Inc. and United Cleaning Services Limited and Ancar Cleaning Inc. and PepsiCo Beverages Canada, a business unit of PepsiCo Canada ULC and Coca-Cola Ltd., Defendants
BEFORE: Justice S. Corthorn
COUNSEL: Brenda Hollingsworth, for the Plaintiff
No one appearing for the Defendants
HEARD: In writing
endorsement
Madam Justice Sylvia Corthorn
Released: June 13, 2018