Court File and Parties

COURT FILE NO.: CV-17-132347 DATE: 20190819

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Antonio Giancola and Angelina Giancola Plaintiffs

– and –

Alexandre Dobrydnev Defendants

COUNSEL: R. Christopher M. Belsito, for the Plaintiffs Arkadi Bouchelev, for the Defendant

HEARD: August 16, 2019

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The Defendant, Alexandre Dobrydnev, brings this motion pursuant to Rule 37.14 (1) (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order setting aside the Judgment of Edwards J. dated January 2, 2019. In that Judgment, Edwards J. denied the Defendant’s request for an adjournment at the hearing of the motion on December 21, 2018, and granted the Plaintiffs’ motion for summary judgment.

[2] The Defendant argues that he was unable to attend the December 21, 2018 hearing for health reasons. He has filed a number of affidavits on this motion to support this position, and argues that if these affidavits had been available to Edwards J. when he denied the adjournment request, Edwards J. “may have well come to a different conclusion with respect to Mr. Dobrydnev’s request for an adjournment”.

Facts

[3] The Statement of Claim was issued on August 24, 2017. The Defendant filed a Statement of Defence on September 30, 2017.

[4] On June 21, 2018, the plaintiffs brought a motion returnable August 23, 2018, seeking a court ordered timetable with respect to a summary judgment motion returnable December 21, 2018. On August 23, 2018, the Court ordered a timetable setting out when the parties were to serve their materials for the summary judgment motion and when cross-examinations were to be completed, as well as when factums were to be filed.

[5] The summary judgment motion was scheduled to be heard on December 21, 2018.

[6] On December 20, 2018 at 4:55 p.m., the Defendant faxed a handwritten note entitled “Confirmation of Motion” to the court and to the Plaintiffs’ counsel. In this handwritten confirmation of motion, the Defendant requested an adjournment of the motion:

…I am unable to attend on December 21, 2018 at civil court in Newmarket, because I am have heavy injuries at seriously car accident. Please reschedule to a later date til I am recovery. (sic)

Alexandre Dobrydnev

[7] Plaintiffs’ counsel also provided the Court with a note from Vladimir Levitin, Chiropractor, dated December 20, 2018, which was faxed to him on December 20, 2018. The note stated:

To Whom It May Concern

Please be advised that the patient (Alexandre Dobrydnev) is unable to attend the proceedings dated December 21, 2018 due to the severe knee pain and headache. He is recommended bed rest for the next 7 days to decrease the inflammation and swelling of the knee.

[8] Edwards J. considered these notes at paras. 25 and 26 of his decision, and at paras. 27 to 31 he set out his reasons for refusing the Defendant’s request for an adjournment. There is no need for me to summarize those reasons because, as I will explain, they are not relevant to my analysis of the issue raised on this motion.

[9] Having denied the Defendant’s adjournment request, Edwards J. went on to consider the motion for summary judgment on its merits. He granted summary judgment in favour of the Plaintiffs in the amount of $306,130.54 plus costs. His written reasons were released on January 2, 2019 (Giancola v. Dobrydnev, 2019 ONSC 17).

[10] The Defendant filed a Notice of Appeal on February 1, 2019. One ground of appeal was that Edwards J. erred in denying the Defendant’s request for an adjournment. On April 2, 2019, the Registrar of the Court of Appeal dismissed the Defendant’s appeal for delay.

[11] The Defendant brought a motion to set aside the administrative dismissal of his appeal. On May 17, 2019, Trotter J.A. set aside the administrative dismissal order, and granted the Defendant an extension until June 21, 2019 to perfect his appeal. The defendant did not perfect the appeal by June 21, 2019, and has not brought any further motion seeking an extension of that deadline.

Analysis

Rule 37.14

[12] Rule 37.14 authorizes a court to set aside an order if the defendant failed to appear at a motion “through accident, mistake or insufficient notice”. The Rule states:

37.14 (1) A party or other person who,

(b) fails to appear on a motion through accident, mistake or insufficient notice; …

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[13] The Defendant argues that this Rule applies in this case because he failed to appear at the December 21, 2018 motion “through accident”. He argues that he “was unable to attend the hearing because of his health and believed that a note from his chiropractor would be sufficient to secure an adjournment.” He has now filed affidavit evidence explaining in greater detail why he failed to attend the December 21, 2018 hearing and providing further medical and other evidence to support his request for an adjournment.

[14] As I advised counsel at the hearing of this motion, it is my view that Rule 37.14(1)(b) has no application to this case. Rule 37.14(1)(b) applies in those cases in which the party fails to appear. It does not apply where a party appears (either in person or in writing) and requests an adjournment and the adjournment is denied. It is clear that the Defendant was well aware of the December 21, 2018 hearing date. He provided correspondence to the Court requesting an adjournment. His request was denied.

[15] Counsel for the Defendant could not point to any case in which Rule 37.14(1)(b) was applied in a situation where the moving party requested and was denied an adjournment.

Rule 59.06

[16] Where a party requests an adjournment and the adjournment is denied, the party has two options. The first is to appeal to the Court of Appeal once the final judgment is issued: Zsoldos v. Ontario Association of Architects, 2003 CanLII 44336 (ON SC), at para. 19. The Court of Appeal has the jurisdiction to decide whether the judge erred in law in the exercise of his discretion in refusing an adjournment.

[17] While the Defendant did commence an appeal on this ground, this appeal has, apparently, been abandoned.

[18] If the party is of the view that he has “fresh evidence” that might have resulted in a different decision he may move to have the order set aside under Rule 59.06(2)(a), which provides:

59.06 (2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

(Emphasis added)

[19] The test under Rule 59.06(2)(a) was set out by the Court of Appeal in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257, at paras. 41 and 44. The moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court will go on to evaluate “other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment.”

[20] In the present case I will not conduct any analysis of the application of Rule 59.06(2)(a) for two reasons. The first is that the Defendant did not bring this motion under Rule 59.06(2)(a); the Notice of Motion and Factum rely only on Rule 37.14. It would be unfair to the Plaintiffs, who prepared their response based on the Notice of Motion, to permit the Defendant to rely on a Rule that was not referenced in his Notice of Motion or Factum.

[21] The second reason is that, as a general rule, motions under Rule 59.06(2)(a) should proceed before the judge who made the original order. As the Court of Appeal stated in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670, at para. 21:

Because of the nature of the inquiry, a motion under rule 59.06(2)(a) to reopen a trial decision based on fresh evidence should be brought before the trial judge, who is in the best position to contextualize the fresh evidence and to direct the trial of an issue if appropriate: Janjua v. Khan, 2014 ONCA 5 at para. 11. See Sagaz, at para. 60. This is the practice that should be followed unless there is some real impediment to the trial judge dealing with the motion.

[22] As indicated above, the Defendant argues that if the affidavits filed on this motion had been available to Edwards J., “His Honour may have well come to a different conclusion with respect to Mr. Dobrydnev’s request for an adjournment”. Clearly, the best person to make that assessment is Edwards J.

[23] In making this observation I express no opinion as to whether the Defendant could meet the test under Rule 59.06(2)(a), and, in particular, whether anything in the evidence filed on this motion “could not have been put forward by the exercise of reasonable diligence at the original proceedings”.

Conclusion

[24] Accordingly, while I am dismissing the Defendant’s motion under Rule 37.14, I do so without prejudice to his right to bring the motion back before Edwards J. under Rule 59.06 if he is of the view that he can meet the test set out in the Tsaoussis case.

[25] I am advised by the Trial Coordinator that Edwards J. is available to hear this motion on August 30, 2019. If the Defendant wants to proceed under Rule 59.06 he must file a notice of return of motion indicating that he is relying on Rule 59.06 by August 23, 2019. Both parties may rely on the motion records already filed.

Costs

[26] The Defendant’s motion under Rule 37.14 was not simply adjourned. It was dismissed without prejudice to his bringing the motion back under Rule 59.06. In these circumstances I am of the view that the Plaintiffs are entitled to their costs for this motion on a partial indemnity basis, and not just to costs thrown away for today.

[27] The Plaintiffs claim $6,687 costs on a partial indemnity basis.

[28] Given the voluminous affidavit material filed by the Defendant on this motion, this amount is fair and reasonable. The motion was scheduled as a long motion, although it took less than an hour to argue. It was reasonable for the Plaintiffs to prepare for this motion as if it would be a long motion. I will, however, deduct $750 from the amount claimed in recognition of the fact that the motion was argued in under an hour instead of the 4 hours scheduled. Costs are fixed at $5,937, payable by the Defendant as indicated below.

[29] The Plaintiffs protest that it is unfair to give the Defendant a fourth kick at the can. The Plaintiffs argue that the Defendant brought his motion only under Rule 37.14, and I should simply dismiss the motion on that basis. By dismissing this motion without prejudice to the Defendant proceeding under Rule 59.06, the Defendant will be given a third chance to challenge Edwards J.’s decision to deny the adjournment. The Plaintiffs have already had to respond to the abandoned appeal in addition to the unsuccessful Rule 37.14 motion, and legal costs continue to mount. The record demonstrates that the Plaintiffs have had great difficulty collecting their costs from the Defendant in prior proceedings.

[30] The Plaintiffs have a valid point. Dismissing the Rule 37.14 motion on a without prejudice basis is an indulgence, and the cost of this indulgence should not be borne by the Plaintiffs. Accordingly, I order that the $5,937 costs payable by the Defendant to the Plaintiffs must be paid before the motion is heard on August 30, 2019.

Justice R.E. Charney

Released: August 19, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Antonio Giancola and Angelina Giancola Plaintiffs

– and –

Alexandre Dobrydnev Defendants

REASONS FOR DECISION

Justice R.E. Charney

Released: August 19, 2019