Court File and Parties
COURT FILE NO.: CV-13-00482226 MOTION HEARD: 20190604 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Christie and Inge Christie, Plaintiffs AND: TD Insurance Meloche Monnex, Meloche Monnex Financial Services Inc. and Security National Insurance Company, Defendants
BEFORE: Master B. McAfee
COUNSEL: Anne Juntunen and Noorain Shethwala, Counsel for the Moving Parties, the Plaintiffs Jillian Beaulieu, Counsel for the Responding Parties, the Defendants
HEARD: June 4, 2019
Reasons for Decision
[1] This is a motion brought by the plaintiffs for various relief. As set forth in my endorsement dated June 4, 2019, certain relief has been agreed to. What follows are my reasons with respect to the contested relief set forth at paragraphs (c) and (d) of the notice of motion.
[2] With respect to the relief at paragraph (c) of the notice of motion, the parties agree to a further examination for discovery of the defendants’ representative on the answers to undertakings and additional productions. The plaintiffs seek leave to exceed seven hours of examination, which the defendants oppose.
[3] The defendants’ representative has already been examined for 5.4 hours.
[4] The plaintiffs argue that at least an additional four hours is required. The plaintiffs request an additional seven hours to avoid the necessity of a further motion in the event that an additional four hours is insufficient.
[5] The defendants submit that the further examination for discovery ought to be limited to an additional 1.6 hours and argue that a total of seven hours of examination should not be exceeded.
[6] Rule 31.05.1 of the Rules of Civil Procedure is applicable. Having regard to the applicable considerations for leave set forth at Rule 31.05.1(2), I am satisfied that up to an additional four hours, or up to 2.4 hours in excess of the seven hours set forth at Rule 31.05.1(1), is reasonable.
[7] In this action the plaintiffs seek damages in the amount of $400,000.00. The plaintiffs seek indemnity pursuant to a policy of insurance for losses sustained on their cottage property following a severe windstorm. Damages are also sought for bad faith and negligent claims handling.
[8] The additional productions that are the subject matter of the further examination are voluminous. The additional productions are approximately 900 pages in length. The further examination is also with respect to answers to numerous undertakings. Approximately 77 undertakings were given.
[9] No issue of any financial basis to deny leave was raised. No submissions were made concerning the complexity of the proceeding.
[10] Leave is granted to exceed a total of seven hours of examination by up to 2.4 hours. The further examination shall be up to four hours in length.
[11] With respect to the relief at paragraph (d) of the notice of motion, the plaintiffs seek an order that they be entitled to move without notice to strike the statement of defence should the defendants fail to comply with any relief granted on this motion and in particular should there be a failure to comply with undertakings.
[12] There have been three consent timetable orders imposing deadlines for all parties to inter alia answer undertakings (see orders of Master Sugunasiri dated March 20, 2018, Master Muir dated July 6, 2018, and Master Graham dated November 19, 2018).
[13] As stated by Justice Gorman in Kohlsmith v. Sterling Mutuals Inc., 2014 ONSC 4696 (Ont. S.C.J.) at para. 48: It may seem trite, but court orders are made for a purpose and are meant to be complied with. The purpose of the civil justice system is to resolve disputes fairly, on their merits and in a timely manner.
[14] Justice Gorman cites the decision of the Court of Appeal in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 (Ont. C.A.). At para. 19 of 1196158 Ontario, the following is stated:
Timelines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice and not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 14, “the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute”.
[15] Although the defendants have not yet answered all of their undertakings, this is not a case where the defendants have made little or no effort to comply with the timetable orders and answer their undertakings. Prior to the within motion being brought, the defendants answered 69 of 77 undertakings.
[16] The striking of a defence is an extreme remedy of last resort. The evidence before does not satisfy me that, in the event of non-compliance, a sanction of moving without notice to strike the defence is reasonable at this time. In the event of non-compliance, the defendants ought to have notice of any motion to strike and an opportunity to respond.
[17] With respect to the issue of costs, the manner of addressing the issue of costs is set forth in my endorsement of June 4, 2019.
[18] Order to go as follows:
- Leave is granted to the plaintiffs to exceed a total of seven hours of examination of the representative of the defendants by up to 2.4 hours. The plaintiffs may examine the representative of the defendants for up to an additional four hours.
- In the event of the defendants’ non-compliance with any relief granted on this motion, any motion to strike the defence shall be brought on notice to the defendants.