Court File and Parties
COURT FILE NO.: 7343/18 (Milton) DATE: 20190325
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Isabella Briatico and Ralph Bozzo Plaintiffs/Appellants
Kathryn Manning, for the Plaintiffs/Appellants
- and -
Tim Lennea and Lennea & Sons Inc. Defendants/Respondents
Chad Leddy, for the Defendants/Respondents
HEARD: March 6, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of Master Jolley dated June 7, 2018]
Fragomeni J.
ORDER OF MASTER JOLLEY
[1] On June 7, 2018, Master Jolley made the following order:
THIS COURT ORDERS that the Plaintiffs, Isabella Briatico and Ralph Bozzo, shall provide answers to all of the outstanding undertakings given at their Examination for Discovery on June 1st, 2017, attached hereto as Schedule “A” to this Order, within forty-five (45) days of the date of service of this Order.
THIS COURT ORDERS that the Plaintiffs, Isabella Briatico and Ralph Bozzo, shall make further efforts to provide answers to all of the outstanding undertakings which have not been fully satisfied given at their Examinations for Discovery on June 1st, 2017, within forty-five (45) days of the date of service of this Order.
THIS COURT ORDERS that the Plaintiffs, Isabella Briatico and Ralph Bozzo, shall provide the above noted answers on a best effort basis consisting of at least two demand letters and a telephone call for each outstanding undertaking, and, if no answer is received, the Plaintiffs will provide the moving Defendant with copies of all demand letters.
THIS COURT ORDERS that, if the Plaintiffs fail to answer the outstanding undertakings and questions taken under advisement as described above within forty-five (45) days of the date of services of this Order, the moving Defendants may move to dismiss the Plaintiffs’ claim, with notice to the Plaintiffs.
THIS COURT ORDERS THAT costs of this motion shall be made payable to the Defendants by the Plaintiffs, within 30 days of the date of service of this Order, in the amount of $2,000.
[2] The appellants are the plaintiffs. They set out the following grounds of appeal at the hearing before me:
- Master Jolley misapprehended the evidence as it related to the undertakings chart attached to the order;
- Master Jolley erred in not granting an adjournment of the motion; and
- The June 7, 2018 order does not reflect Master Jolley’s handwritten endorsement.
STANDARD OF REVIEW
[3] Counsel agree that the standard of review for this appeal is whether Master Jolley made a palpable or overriding error in making the order she did based on the evidence before her at the motion.
Issue #1: The Undertakings Chart
[4] Schedule A to Master Jolley’s order was the undertakings chart prepared by the respondents as of early April 2018 and updated in May 2018.
[5] By letter dated April 30, 2018, the appellants wrote to the respondents with answers to the undertakings. However, the appellants did not provide the supporting documents for those answers until June 6, 2018, the day prior to the motion being heard. The documents were delivered on a USB key and contained over 2,000 pages of productions.
[6] The appellants filed their undertakings chart at the motion. It purportedly contained the answers to the undertakings.
[7] The appellants submit that Schedule A was not in evidence, however, their undertakings chart was. Master Jolley erred, therefore, in attaching Schedule A to her order instead of the appellants’ chart.
[8] The respondents submit that Schedule A was accurate as of May 28, 2018. The appellants’ chart was before Master Jolley. However, as the USB key was only delivered to the respondents the day before the motion, they could not confirm that the over 2,000 documents supported the answers given by the appellants in their April 30, 2018 letter.
[9] At no time did counsel for the appellants object to Schedule A being attached to the draft order, nor did counsel make submissions that their chart should be attached to the order instead.
[10] Master Jolley was alive to the differences in the charts. At pages 1 and 2 of the transcript:
THE COURT: Thank you. All right. So, taking me through Mr. Cook, the materials, what undertakings do you say are left?
MR. COOK: So, at this time we have just received what plaintiff has provided at Tab G, which is their letter and their chart indicating the answers which are to be provided on CD.
THE COURT: Just a moment. I’ve got to sort out who’s where in this.
MR. COOK: On April 30th as you can see from their materials they sent a letter at Tab G providing these answers. No CD was attached at that time. Our office attempted to obtain the CD and we requested for it. It was not provided. On May 14th, the plaintiff’s counsel wrote a letter saying that we needed to satisfy our account, and that’s at Tab N.
[11] Then again at pages 3, 4 and 11:
THE COURT: So, what order are you seeking on your motion today?
MR. COOK: Seeking an order to compel the plaintiff to answer the undertakings that we have outstanding. We haven’t had a chance to review the productions which just came in yesterday. So we just want an order stating that all outstanding undertakings will be provided. I have attached a Schedule A draft order and I also have a blank draft order for Your Master. The Schedule A lists the outstanding undertakings as they are per here with the attachments.
THE COURT: Okay, can you provide that to me, please.
MR. COOK: I’ll provide those to you. I also have a blank order for, Your Honour if you prefer. I also have a cost outline as well.
THE COURT: All right, and in terms of costs?
MR. COOK: We had to proceed in this manner. We were trying to reasonably agree on this and we’ve been forced to come and prepare these materials. We’ve been forced to take extra time that was not needed to simply ensure that these undertakings are satisfied. We have asked for the CD earlier. We would have been able to perhaps avoid this process had we been able to review what the plaintiffs have said they are provided in a reasonable time, which has not happened.
MS. SIMONE: Your Worship, if I could just make one statement. We did deliver the answers on April 30th. We did not deliver the productions.
THE COURT: Yes, that’s what I indicated. I indicated that you answered your undertakings on April 30th but, delivered your productions in answer on Wednesday, June 6th.
[12] The appellants argue as well that Master Jolley should have conducted a line-by-line analysis of the two charts before she made the order. Of course, that could not have been done as the USB key containing the documents had only been provided on June 6, 2018 and the respondents had not had an opportunity to review the documents in order to be able to make proper submissions on the appellants’ chart.
[13] I am not satisfied that Master Jolley committed a palpable and overriding error in proceeding as she did. The appellants had a copy of the draft order with Schedule A attached to it and made no objection when it was handed up to Master Jolley.
[14] The respondents’ chart, Schedule A, was updated to May 28, 2018. Master Jolley was made aware of the appellants’ April 30, 2018 letter. She was also aware that the appellants’ USB key was only made available for review by the respondents on June 6, 2018.
[15] It was open, on the evidentiary record before her, for Master Jolley to attach Schedule A to her order. In the event that, on a review of the USB key, the documents confirmed and supported the answers given by the appellants in their April 30, 2018 letter, then the order of June 7, 2018 will have been complied with, with no further steps required by the respondents.
[16] Based on all of these circumstances, this ground of appeal fails.
Issue #2: Not Granting an Adjournment of the Motion
[17] Master Jolley did hear submissions with respect to the adjournment request made by the appellants. The transcript sets out the following on this issue:
THE COURT: So, what are you seeking today?
MS. SIMONE: I think if my friend did not have time to go through that undertaking is because he can’t point at any specific undertaking that has not been satisfied, then we adjourn sine die. If he wants to bring his motion on with a specific undertaking, then so do it. I am prepared, Your Honour, to obviously satisfy everything. It’s in the plaintiff’s best interest. My friend received an undertaking that sets out in 20 or 30 pages all of the damages. All of them supported by the productions and further undertakings. This is not a plaintiff who is ignoring the process. Had my friend spoken to us rather than ignore for 2 years we would not be here. We were prepared to resolve the matter, but it’s impossible to communicate with this defendant. There’s over 2,000 pages of productions that were delivered on the USB key. All of them are itemized. All of them are identified. My friend wishes to look at them and come back on another date, we’d be pleased to do so.
THE COURT: Any reply to that, Mr. Cook?
MR. COOK: Just a quick reply, Your Honour. There was no reason given by the plaintiffs for why they hadn’t provided the CD at the time that they provided their letter of April 30th. We were trying to resolve this as well. We just wanted the order to ensure compliance as we had brought the motion. There was no reason for us to know whether or not the plaintiffs would satisfy absent an order so, we proceeded to obtain the order as they were proceeding against other defendants. We determined that it was as had agreed earlier in our correspondence you can in the plaintiff’s materials that they provided the dates for a hearing of a motion. We agreed with those and proceeded with a motion. We were not able to receive the information in enough time to return with any kind of satisfaction that the answer had been undertaken. But, again, that’s again to my point said earlier where we would have proceeded on consent but, that was not agreed.
THE COURT: What do you say about their proposal that your motion be adjourned? Now that to give you an opportunity to review the answers?
MR. COOK: Well, we did not feel that was appropriate given the fact that we have been asking for productions and we haven’t received them. We wanted to have an order from the court compelling an answer because we believe in all likelihood they may very well be, but absent an order there’s not much that we can do. Otherwise, they would have to re-incur the costs of providing another undertakings order, and there is in fact undertakings 55 and 57 which are to provide information which has been requested. So, there are least two undertakings that I can point to that say the undertaking is to provide where it has been requested. So, that would be my final issue.
[18] I am not satisfied that the appellants have set out any error made by Master Jolley in exercising her discretion not to adjourn the motion. It was open to her on the record before her considering the history and chronology of events leading up to the undertakings motion to decline the appellants’ request to adjourn the motion and make the order instead.
[19] The appellants submit that Master Jolley should have adjourned the motion sine die to allow the respondents time to review the USB key to satisfy themselves the undertakings had been answered. This certainly was one option that Master Jolley could have proceeded with. However, she chose not to proceed with that option. In doing so, she did not exercise her discretion incorrectly or misapprehend the facts and circumstances before her.
[20] This ground of appeal fails.
Issue #3: The Order Does Not Reflect the Handwritten Endorsement
[21] Master Jolley’s handwritten endorsement sets out the following:
Plaintiff’s motion against Zonelife on consent, filed, order to go in terms of the draft order attached which I have signed.
Lennea motion against Plaintiffs
The Plaintiffs advised that they answered their undertakings on April 30 but delivered the productions in answer on Wednesday June 6, two days before this motion. The Plaintiffs’ had withheld their answers until the defendants had paid outstanding disbursements, which was not a condition imposed when the U/Ts were given. On 4 June, 2018 the Ds offered to agree to a consent order without costs, which the Ps rejected. Having gone to the expense of bringing the motion and knowing at that time U/Ts remain outstanding, it would not be efficient to simply adjourn the motion to see if the undertakings have been answered.
Order to go compelling the Ps to answer their undertakings with costs payable by the Plaintiffs to the Lennea defendants in the amount of $2,000.
[22] Although Master Jolley added a paragraph about defaulting, I am not satisfied that this amounts to a palpable and overriding error. The motion was an undertakings motion. Master Jolley provided the appellants with time to comply - 45 days. It follows that a default term would be reasonable in the event that compliance is not achieved within the 45 day period. Even without the default term, if compliance was not achieved, the respondents would have been entitled to proceed with a further motion to deal with non-compliance. Master Jolley made no error in dealing with non-compliance even if it was not specifically noted in her handwritten endorsement. Further, the appellants had a copy of the draft order and at no time did they object to its terms or make submissions in that regard.
[23] This ground of appeal fails.
DISPOSITION
[24] The appeal is hereby dismissed. If the parties are unable to resolve the issue of costs of the appeal, they can file brief written submissions on costs within 20 days, limited to two pages, double-spaced.
Fragomeni J.
Released: March 25, 2019