COURT FILE NO.: 16-70049
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daly Square Inc.
Plaintiffs
– and –
1786097 Ontario Inc. and Camille Mikhael
Defendants
COUNSEL:
Jonathan Richardson, Counsel for the Plaintiffs
Pierre Champagne and Ginger Warner, Counsel for Defendants
HEARD: January 11, 2018
PRELIMINARY ENDORSEMENT
JUSTICE H.J. WILLIAMS
[1] This is a motion for summary judgment in which the plaintiff seeks judgment on a mortgage and possession of the mortgaged property.
[2] The defendants defended the action on the basis of legal and equitable set-off and detrimental reliance. They also brought a counterclaim for damage to the mortgaged property they allege was caused by the plaintiff.
[3] The plaintiff argues that the counterclaim is statute-barred. In its notice of motion, the plaintiff did not request an order dismissing the counterclaim but it did state, in its grounds for the motion, that the counterclaim is statute-barred.
[4] At the hearing the motion, the defendants argued that the plaintiff’s request for a dismissal of the counterclaim was not before me because it had not been included in the notice of motion.
[5] The affidavit filed by the plaintiff made reference to the timing of the defendants’ discovery of the claim in the counterclaim (para. 29) and more specifically to the limitation period issue affecting the counterclaim (para. 30.) The plaintiff’s factum clearly deals with the limitation period issue and requests dismissal of the counterclaim.
[6] Portions of the affidavit evidence of the defendants are relevant to the limitation period issue but could also have another purpose.
[7] Twenty-one of the 97 paragraphs in the defendants’ factum deal with the limitation period issue.
[8] The defendants’ lawyer, Mr. Champagne, said that the defendants were prejudiced by the plaintiff’s failure to state in its notice of motion that it was seeking dismissal of the counterclaim. Mr. Champagne said that the defendants did not know until they received the plaintiff’s factum that the plaintiff was requesting the dismissal of the counterclaim. Mr. Champagne said that if the defendants had known earlier that the plaintiff was seeking dismissal of the counterclaim, the defendants would have responded differently; he said they may have filed additional evidence, requested additional documents or cross-examined the deponent of the plaintiff’s affidavit.
[9] The defendants did not request an adjournment of the hearing of the motion.
[10] The plaintiff’s lawyer, Mr. Richardson, was obviously on notice of the position the defendants were taking. Mr. Richard relied on Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008 and Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 as authority that a limitation period issue may be decided in the absence of a request in a notice of motion.
[11] In Landrie and in Kassburg, the defendants had brought summary judgment motions to dismiss the plaintiffs’ actions on the basis that they were statute-barred. In each case, the motions judge had come to the opposite conclusion, that the action was not statute-barred, and had granted judgment on the limitation period issue in favour of the plaintiff, even though the plaintiff had not brought a cross-motion requesting judgment on the issue.
[12] These cases do not assist the plaintiff. In both cases, the limitation period issue was squarely before the court; the motions judges were in a position to be satisfied that the both the moving parties and the respondents had had the opportunity to put their best feet, so to speak, forward in terms of the evidence they presented on the limitation period issue.
[13] I am not in the same position.
[14] The Rules of Civil Procedure are to be interpreted with “the just, most expeditious and least expensive determination of every civil proceeding on its merits” as their goal. (Rule 1.04(1) of the Rules of Civil Procedure.)
[15] It seems that this problem could have been avoided if the parties had clarified the issue and agreed to adjourn the motion, if necessary. The defendants were obviously aware before they prepared their factum that the limitation period applicable to the counterclaim was an issue. They responded to the issue in their factum and did not request an adjournment. Nonetheless, in these circumstances, I do not feel that it would be “just” to consider the request to dismiss the counterclaim when the request was not made in the notice of motion and the defendants are saying that they would have responded differently if it had been. However, it would not an “expeditious” or the “least expensive” approach simply to refuse to consider the limitation period when both parties have now devoted considerable time to the issue; doing so would likely prompt the plaintiff to bring a further motion, resulting in more expense and delay.
[16] With both Rule 1.04 and the call in Hryniak v. Mauldin, 2017 SCC 7 for a culture shift that requires judges to manage the legal process actively and in line with the principle of proportionality, I make the following orders:
The plaintiff shall have seven days to serve an amended notice of motion in which it seeks the dismissal of the defendants’ counterclaim;
The defendants shall have 14 days from the date of service of the amended notice of motion to deliver additional affidavit evidence, if any. Any additional evidence shall deal with the limitation period issue only;
The plaintiff shall have 14 days from the date of service of the defendants’ additional affidavit evidence to deliver any additional responding affidavit evidence;
The parties shall then have 30 days to conduct any cross-examinations, with respect to the limitation period only, and to deliver brief supplementary facta and amended costs outlines.
[17] This timetable may be amended on consent of the parties.
[18] If this endorsement raises any issues that cannot be resolved on consent, the parties may request a brief telephone conference with me, through the trial coordinator.
[19] If, after the steps in the timetable have been completed, the parties wish to make further oral submissions, they may make an appointment with me through the trial coordinator.
[20] I will remain seized of the motion.
H. J. Williams J.
Released: 2018/02/02
COURT FILE NO.: 16-70049
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daly Square Inc.
Plaintiffs
– and –
1786097 Ontario Inc. and Camille Mikhael
Defendants
PRELIMINARY ENDORSEMENT
H. J. Williams J.
Released: 2018/02/02