Court File and Parties
COURT FILE NO.: 18-78797 DATE: 2019/05/03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Peter Przybytek, Applicant/Respondent to Counter-Application AND 3002071 Canada Inc., Respondent/Applicant by Counter-Application AND 1457563 Ontario Inc., Applicant by Counter-Application
BEFORE: Madam Justice H. J. Williams
COUNSEL: G. Boyd Aitken, Counsel for the Applicant/Respondent to Counter-Application Claude-Alain Burdet, Counsel for the Respondent/Applicant by Counter-Application
HEARD: April 25, 2019
Endorsement
Background
[1] The parties first appeared before me on March 11, 2019.
[2] I adjourned the application for cross-examinations, rescheduled the hearing for April 25, 2019 at 2 p.m. and ordered that costs were reserved.
[3] On April 12, 2019, the respondent 3002071 Canada Inc. commenced what it described as a “requête reconventionnelle et jonction” (counter-application and joinder) and added what it described as a “requérante reconventionnelle jointe” (joint applicant by counter-application), 1457563 Ontario Inc.
[4] The parties then conducted cross-examinations.
The April 25, 2019 hearing
[5] At the April 25, 2019 hearing, although the applicant, John Peter Przbytek, objected to the counter-application being heard, he conceded that he had had an opportunity to cross-examine on the affidavits served in conjunction with the counter-application.
[6] On April 25, 2019, submissions were made with respect to both the appropriateness and the subject matter of the counter-application. The parties made references to the transcripts of the cross-examinations but had not filed them. It then became apparent to the parties and to me that the transcripts were essential to the parties’ arguments and that, regardless of whether I decided to hear the counter-application, there would be insufficient time to complete the parties’ submissions before the end of the afternoon.
The counter-application
[7] Counter-applications, as such, do not exist. The term “counter-application” does not appear in the Rules of Civil Procedure, other than as a heading above rule 38.03(4). (Norbett & Associates Inc. v. 1434267 Ontario Ltd., 63 O.R. (3d) 477 at paras. 4 and 7.) If a respondent wishes to commence an application, even if it is against the applicant, or, as in this case, if a respondent and another person wish to commence an application, even if it is against the applicant, a new application must be issued. It may then be appropriate to consolidate the two applications or to convert them into an action and a counterclaim. (Norbett, at para. 7.)
[8] In this case, the respondent and 1457563 named their document “requête reconventionnelle et jonction” (counter-application and joinder). The document was accepted by the civil counter at the Ottawa court house and was dated, signed and sealed. It was not assigned a unique file number; it bears the number of the applicant John Przbytek’s application.
[9] I consider the use of the incorrect title “requête reconventionnelle et jonction” instead of the correct title, “application” to be nothing more than an irregularity. Further, the respondent and 1457563 cannot be faulted for the fact that their application was not assigned its own file number. The title and file number of the application of the respondent and 1457563 will have no bearing on whether I ultimately hear it.
[10] That said, I agree with the applicant John Przbytek’s position that the “requête reconventionnelle et jonction” of the respondent and 1457563 cannot be heard unless it is served on the applicant’s sister, Helen Butt. Ms. Butt may have an interest in the relief sought because of her co-ownership of the Kawartha Lakes property and because of the terms of the order of Newton J. dated January 15, 2016.
Orders
[11] I make the following orders:
- The hearing shall be adjourned to June 4, 2019 at 10:00 a.m. for three hours. I will make myself available for more than three hours that day, if necessary.
- The June 4, 2019 hearing will be bilingual.
- Prior to the hearing, the parties shall file the transcripts of their cross-examinations and shall identify the portions they consider to be relevant. The transcripts shall be filed at least four days before the hearing, in accordance with Rule 34.18 of the Rules of Civil Procedure.
- The parties shall file confirmation forms listing each of the documents that should be before me for the June 4, 2019 hearing. Each party is responsible for ensuring that all of the documents they have listed on their confirmation form are placed in the appropriate court file prior to the hearing. These forms shall be filed and exchanged in accordance with Rule 38.09.1 of the Rules of Civil Procedure.
- The application of the respondent and 1457563 shall not be heard unless the applicant John Przbytek’s sister, Helen Butt, is served with the materials in support of the application of the respondent and 1457563 (the “requête reconventionnelle et jonction”) on or before May 17, 2019. The materials served on Ms. Butt shall clearly indicate the date, time and location of the June 4, 2019 hearing. (This is not to say that this application will be heard if it is served on Ms. Butt, only to say that it will not be heard if it is not served.)
- Other than the cross-examination transcripts and any materials Helen Butt may wish to file, the parties shall not file any additional evidence for the June 4, 2019 hearing, without leave of the court.
[12] Whether or not Helen Butt is served by the May 17, 2019 deadline, I will hear submissions on June 4, 2019 with respect to the merits of the application of John Przbytek, whether the application of John Przbytek and of the respondent and 1457563 may be heard separately on whether they should be joined and whether either or both applications should properly be treated as an action.