COURT FILE NO.: CV-16-2627
DATE: 2019 08 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LEEN STEELS LTD. v. THE ATLAS CORPORATION
BEFORE: Doi J.
COUNSEL: I. Latimer, for the moving Plaintiff
B. Greenberg, for the Defendant
HEARD: August 12, 2019
E N D O R S E M E N T
Overview
[1] The Plaintiff moves under Rule 37.14(1) to set aside the order of Justice Fowler Byrne dated November 13, 2019, which dismissed the action and granted corollary relief. The Defendant opposes the motion and argues that the Plaintiff has not shown that it failed to appear on the motion before Fowler Byrne J. through accident, mistake or insufficient notice.
[2] As explained below, I find that the dismissal order was granted after the Plaintiff failed to attend on the motion due to accident or mistake. Accordingly, the motion is granted.
Background
[3] The background to this proceeding is stated briefly as follows.
[4] On June 7, 2016, the Plaintiff commenced the underlying action to enforce a claim for lien for $100,706.72. The Plaintiff relied upon its former counsel, who had carriage of the action, to take necessary steps to protect the lien and advance the claim.
[5] By order of Justice LeMay dated June 5, 2018, the Plaintiff's former counsel was removed as its lawyer of record after the Plaintiff failed to provide a further retainer. The president of the Plaintiff claims that this removal order did not come to his attention, as further set out below.
[6] On October 11, 2018, the Defendant moved to dismiss the action because the Plaintiff had not complied with the terms of the June 5, 2018 removal order that required the Plaintiff to appoint a new lawyer of record or arrange for other representation. On November 13, 2018, the dismissal motion was heard and granted by Fowler Byrne J., who made an order to dismiss the action and to grant other corollary relief.
[7] On December 21, 2018, the Plaintiff retained new counsel to set aside the November 13, 2018 dismissal order. The matter was brought as a long motion pursuant to a consent timetable, and returned on August 12, 2019 before me.
Matters at Issue
[8] The Plaintiff raises the following two (2) issues on this motion:
i) The Removal Order
[9] Relying on Rule 15.04, the Plaintiff argues that the form and content of the June 5, 2018 removal order was inadequate, and also submits that the removal order was not properly served by its former counsel. The Plaintiff further states that it was not served with the removal order by its former counsel, either by facsimile transmission or electronic mail, as she purportedly used to deliver the removal order. Accordingly, the Plaintiff argues that the removal order is invalid and should be set aside or declared a nullity. In turn, the Plaintiff further submits that the November 13, 2018 dismissal order (i.e. which dismissed the action because the Plaintiff had failed to appoint a new lawyer of record or arrange other representation) is inherently flawed and should also be set aside.
[10] From the evidentiary record, I find that the Plaintiff was not served with the removal order. I also find that this is a factor that favours a setting aside of the dismissal order.
ii) Failure to Attend the Dismissal Motion due to Accident or Mistake
[11] In the alternative, the Plaintiff submits that it failed to appear on the Defendant's motion on November 13, 2008 to dismiss the action through accident or mistake, and that it always intended to pursue its claim in the action. As such, the Plaintiff states that the dismissal order of November 13, 2008 should be set aside pursuant to Rule 37.14(1)(b).
[12] In my view, the Plaintiff has demonstrated sufficiently that it did not attend the Defendant's motion due to accident or mistake. As such, I find that the dismissal order should be set aside, for the reasons that follow.
Analysis
i) The Removal Order
[13] The Plaintiff submits that the content of the June 5, 2018 removal order was materially deficient, and also submits that the removal order was never served on the Plaintiff. Although I find that the removal order itself was not deficient, I find that it did not come to the Plaintiff's attention which is a factor for setting aside the dismissal order.
[14] Rules 15.04(4)(d) requires an order removing a lawyer of record for a corporate client to include the text of Rule 15.04(6), which states:
(6) Corporations
A client that is a corporation shall, within 30 days after being served with the order removing the lawyer from the record,
(a) appoint a new lawyer of record by serving a notice under Rule 15.03(2); or
(b) obtain and serve an order under subrule 15.01(2) granting it leave to be represented by a person other than a lawyer.
[15] Rule 15.04(7)(a) states:
(7) If the corporation fails to comply with subrule (6),
(a) The court may dismiss its proceeding or strike out its defence;
[16] Paragraphs 3 and 4 of the removal order dated June 5, 2018 state:
THIS COURT ORDERS that service upon the plaintiff, Leen Steeles (sic) Ltd. shall be effected at their last known address, namely, 12 Colony Court, Brampton, Ontario, L6T 4E6, telephone number 905-791-4222, facsimile number 905-791-0224.
THIS COURT ORDERS that the plaintiff shall, within 30 days after being served with this Order,
a) appoint a new lawyer of record by serving a notice under subrule 15.03(2); or
b) obtain and serve an order under subrule 15.01(2) granting leave to be represented by a person other than a lawyer.
c) if the corporation fails to comply with paragraph 3(a) and 3(B) herin (sic) the court may dismiss its proceeding or strike out its defence and, in an appeal,
i) a judge of the appellate court may, on motion, dismiss the corporation's appeal, or
ii) the court hearing the appeal may deny it the right to be heard.
[Emphasis added]
[17] The Plaintiff takes issue with the form and content of the removal order because paragraph 4(c) of the order (above) incorrectly refers to "paragraphs 3(a) and 3(B)" instead correctly citing paragraphs 4(a) and 4(b), respectively. Noting accurately that there is no actual paragraph 3(a) or 3(b) in the removal order, the Plaintiff submits that this defect rendered paragraph 4(c) of the order misleading or confusing so as to cause the entire order to be invalid. I am unable to accept this submission. Although the reference in paragraph 4(c) to "paragraphs 3(a) and (b) herin (sic)" obviously contains minor typographical errors, it seems rather apparent when reading the paragraph in context that the reference properly is to "paragraphs 4(a) and (b) herein". As such, I have difficulty accepting that the typographical error in paragraph 4(c) is sufficient to compromise the validity of the entire removal order.
[18] The Plaintiff also submits that its former counsel failed to properly serve the removal order because she served it on the Plaintiff by facsimile transmission instead by personal service, or by alternate service under Rule 16.03, or by mail. To this end, the Plaintiff relies on Rule 15.04(2) which states:
(2) Service of a notice of motion for the removal of a lawyer from the record and service of the order shall be made on the client,
(a) personally or by an alternative to personal service under rule 16.03; or
(b) by mailing a copy to the client at,
(i) the client's last known address, and
(ii) another address, if any, where the lawyer believes the copy is likely to come to the client's attention.
[Emphasis added]
I parenthetically note that Rule 16.03 does not contain a provision for alternate service of a removal order on a corporate client by facsimile transmission.
[19] Despite the service requirements under Rule 15.04(2), I find that Plaintiff's former counsel could reasonably have interpreted paragraph 3 of the June 5, 2019 removal order as it was drafted (reproduced above) as permitting her to serve the removal order on the Plaintiff by substituted service using facsimile transmission. Although I recognize that Rule 15.04(4)(c) requires a removal order to include a former client's fax number, which explains in part why the fax number appears in paragraph 3 of the removal order, I find that a fair and reasonable interpretation of paragraph 3 is that it allowed former counsel to serve the removal order by facsimile transmission (i.e. in addition to the other methods of service permitted under Rule 15.04(2)) as she apparently did, or attempted to do.
[20] Regardless, I find that the removal order did not actually come to the Plaintiff's attention. From the record, it appears that former counsel apparently served or attempted to serve the Plaintiff with the removal order on July 11, 2018 by facsimile transmission, as evidenced by an affidavit of service to this effect that she produced along with a fax confirmation. I also understand that former counsel sent the removal order to the Plaintiff by electronic mail. However, the Plaintiff states that the removal order was never actually received. Having searched its electronic mail (which automatically converts inbound facsimile transmissions to electronic mail), the Plaintiff claims that it did not receive the removal order either by fax or email. It also claims to have never received a final report or accounting for the file from its former lawyer. The Plaintiff further states the possibility that a fax or email message from its former lawyer may have gone into its deleted or spam email folders which are automatically emptied after seven (7) and thirty (30) days, respectively.
[21] The Defendant takes issue with the Plaintiff's position by characterizing it as implausible or unbelievable. It argues forcefully that the Plaintiff had to have known that its former lawyer would no longer act for the corporation because the Plaintiff had received service of her motion record to be removed as the Plaintiff's lawyer of record before LeMay J. heard the removal motion on June 5, 2018. However, the president of the Plaintiff, Mr. Badyal, claims to have not understood the contents of the motion record. This led him to send an email inquiry on June 4, 2018 to Plaintiff's former counsel, who succinctly replied that she was asking the court for orders to get off the Plaintiff's files. Mr. Badyal claims to have not appreciated former counsel's response, and thus did not attend the June 5, 2018 motion for the Plaintiff as he did not grasp the nature or importance of the motion. The Defendant submits that Mr. Badyal's evidence regarding the June 5, 2018 removal motion is wholly unbelievable. The Defendant disbelieves the Plaintiff's further evidence that it did not receive actual delivery of the removal order (i.e. which appears to have been faxed by former counsel's office to the Plaintiff's correct fax number) as a convenient mistruth that strains credulity.
[22] From the evidence before the court, I am persuaded that the Plaintiff failed to appreciate the significance of its former counsel's motion to be removed as counsel of record. In addition to recognizing his limited English language ability, I accept that Mr. Badyal has an unsophisticated knowledge of legal proceedings (i.e. despite the Plaintiff's involvement in other litigation matters) and did not understand former counsel's motion materials, which prompted him to inquire about them with her by email on June 4, 2018. Given former counsel's rather succinct response to his inquiry, I also find it unsurprising that Mr. Badyal claims to have not fully appreciated the nature and importance of former counsel's June 5, 2018 motion to be removed as counsel of record. Although it was incumbent on Mr. Badyal to make further inquiries with former counsel to clarify matters, I find that the Plaintiff's failure to attend the June 5, 2018 removal motion reflected an accident or mistake, despite a measure of inattentiveness by Mr. Badyal. Absent any evidence to the contrary, I also accept that the Plaintiff did not receive actual delivery of the June 5, 2018 removal order on July 11, 2018 when former counsel attempted to effect service by facsimile transmission. Unlike other situations, like the one that arose in Turino v. Shea, 2016 ONSC 6718 at paras 33-37, there is no evidence in this case regarding the Plaintiff's fax and email communications to suggest with any real persuasion that the Plaintiff's claim of not having received service of the removal order from former counsel is untrue, particularly given the Plaintiff's explanation regarding the operation of its fax and email system and its failure to receive the removal order that appears reasonably plausible. In addition, there is direct evidence on this motion that Mr. Badyal and Plaintiff's former counsel had difficulties communicating with each other by email as messages apparently were sent but not received, as further explained below.
[23] Having not received actual delivery of the June 5, 2018 removal order, the Plaintiff claims that this lends further support for setting aside the dismissal order dated November 13, 2018. I agree with this submission and discuss this further in my Rule 37.14(1)(b) analysis below.
ii) The Dismissal Order
[24] The Plaintiff seeks to set aside the dismissal order dated November 13, 2018 by moving under Rule 37.14(1)(b), which provides:
37.14(1) Motion to set aside or vary
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.
[25] The Plaintiff states that it did not attend the Defendant's dismissal motion because, a) it did not receive the removal order; and b) an accident or mistake arose, as described below. For the reasons that follow, I accept this explanation.
[26] Rule 37.14 is intended to prevent unfairness or a miscarriage of justice where a party's inadvertence resulted in an order being obtained without that party being afforded an opportunity to present its case. A party who does not appear in these circumstances is usually given a chance to present evidence and argue the motion on its merits, where the party moves promptly and in the absence of any countervailing considerations: Ontario (Attorney General) v. 15 Johnswood Crescent, [2009] OJ No 3971 (SCJ) at para 29; Turino v. Shea, 2016 ONSC 6718 at para 26. Where a failure to appear on the motion did not result from accident, mistake or insufficient notice, Rule 37.14 does not apply: Turino at para 28.
[27] In Ontario (A.G.), Strathy J. (as he then was) set out the following factors for the court to consider in exercising its discretion under Rule 37.14:
(1) Proof of accident or mistake: The moving party must establish a failure to appear on the original motion through accident, mistake or insufficient notice. This is a precondition to relief under the rule. A party who has simply chosen not to appear on a motion cannot complain later if he or she does not like the outcome.
(2) The party must move forthwith after the order comes to his or her attention: This is also a precondition to relief under the rule, but there is room for flexibility in the interpretation of "forthwith", depending on the circumstances.
(3) The length of the delay and the reasons for it: In considering whether to set aside an order, the court will consider whether there has been delay in bringing the motion and the reason for it. All other things being equal, the longer an order has been in effect, particularly where parties have acquired rights or changed their positions as a result of the order, the less likely it will be that the court will set it aside.
(4) The presence or absence of prejudice: The court should consider whether a party will be prejudiced by setting aside the order or by failing to set aside the order. There will always be prejudice if an order is made against a party without sufficient notice and there will always be some kind of prejudice to the other party if the order is set aside. Nevertheless, the exercise of the court's discretion may require an examination of the relative prejudice to the parties.
(5) The underlying merits of the moving party's case: It may be necessary to consider the underlying merits of the moving party's case in weighing the various factors, balancing the interests of the parties, and determining what is just in the circumstances. Lengthy delay in bringing the motion may be more readily forgiven if the moving party has a very strong case on the merits. It will be less readily forgiven if the party's case appears frivolous.
[28] While these are factors for the court to consider, the guiding principle is for the court to consider all of the relevant factors with a view to balancing the interests of the parties: Ontario (A.G.) at para 33. There may well be other factors that also arise in a particular case.
a) Proof of Accident or Mistake
[29] In my view, the Plaintiff has demonstrated with sufficient plausibility that it failed to attend the dismissal motion on November 13, 2018 because of a mistake made by Mr. Badyal, the president of the corporate Plaintiff. The mistake was his belief that the Plaintiff's former counsel would attend on the motion for the Plaintiff to oppose the motion, if an attendance was required.
[30] According to Mr. Badyal, the corporate Plaintiff was served with the Defendant's motion record for the dismissal motion. However, he claims that the record only came to his personal attention after the motion was heard because he had relied on his former lawyer to deal with the matter. As explained above, it seems that the Plaintiff did not actually receive a copy of the June 5, 2019 removal order when former counsel attempted to serve it on July 11, 2019. In turn, Mr. Badyal claims to have believed that former counsel would continue to represent the Plaintiff as its counsel of record. Mr. Badyal also claims that he did not actually review the Defendant's motion record until sometime in December 2018, after the dismissal order came to his attention.
[31] Mr. Badyal admits that the Plaintiff was served with the Defendant's notice of return of motion for the November 13, 2018 hearing of the dismissal motion, and that the notice came to his attention before the motion return date. However, Mr. Badyal claims to have believed that his former lawyer would attend the motion on behalf of the Plaintiff, if an attendance was required. The Defendant takes strong issue with the truth of his statement, in light of the following.
[32] On November 9, 2018, Mr. Badyal decided to retain new counsel (i.e. who had acted for the Plaintiff in other matters) to assume carriage of this litigation from the Plaintiff's former counsel. During an email exchange with new counsel that day, Mr. Badyal forwarded an electronic copy of the Defendant's notice of return of motion for the November 13, 2018 hearing to new counsel in an email message. However, new counsel apparently did not open the attachment to the email message and, therefore, was unaware of the November 13, 2018 return date for the dismissal motion until sometime after December 7, 2018 when he reviewed the Plaintiff's file in this matter.
[33] To arrange for the transfer of the litigation file to Plaintiff's new counsel for carriage, Mr. Badyal emailed Plaintiff's former counsel on November 9, 2018 to advise that he was sending a staff member to retrieve the litigation file from her law office. When the staff member attended the law office later that day, he was informed that Plaintiff's former counsel was away and would email the files on November 12, 2018.
[34] On November 12, 2018, Mr. Badyal emailed Plaintiff's former counsel to confirm that she would forward the file. In his email message, Mr. Badyal stated:
Please email me the files, I have court date tomorrow and my lawyer need all paper work now. [Emphasis added]
Plaintiff's former counsel did not respond to Mr. Badyal's email messages of November 9 or 12, 2018, and did not forward the file.
[35] On November 12, 2018, Mr. Badyal emailed Plaintiff's new counsel and stated:
Hi Ian
I did not receive file from previous lawyer today, let me know for further.
[36] The Plaintiff's motion record does not provide new counsel's response to Mr. Badyal's email message. While under no obligation to give an explanation, the Plaintiff's failure to fully explain these circumstances raises some questions.
[37] Given that former counsel did not respond or forward the file, Mr. Badyal claims that he formed the belief that she would continue to represent the corporate Plaintiff and attend court on November 13, 2018 if an attendance was required. At this time, Mr. Badyal was unaware of the June 5, 2018 removal order, and also believed, incorrectly, that former counsel knew of the November 13, 2018 motion return date (i.e. because he mistakenly thought that former counsel had been served with the Defendant's motion record and notice of return of motion, but she had not been served), which he had alluded to in his November 12, 2018 email to her. In these circumstances, the Plaintiff submits that Mr. Badyal's belief that former counsel would continue to act for the Plaintiff on the November 13, 2018 return was not unreasonable.
[38] Relying on the reasoning in Abbot v. Gallucci, [2004] OJ No. 1218 (SCJ) at paras 7-10, the Defendant claims that the Plaintiff has failed to offer a sufficient explanation to show that its failure to attend the November 13, 2018 motion was by accident or mistake. I disagree, and find that the Abbott case is distinguishable from the facts of this case. In Abbott, the non-attending defendant which sought to set aside default judgment under Rule 37.14 did not state anything in her affidavit to show that her non-attendance on the motion which granted default judgment was by accident or mistake. Rather, the motion judge inferred from the limited available information on the motion to vary that the non-attending defendant had not understood what was happening, and simply decided to leave the entire matter for her husband to deal with. Notably, the non-attending defendant in Abbot gave no apparent reason as to why her decision to not attend, whether well-considered or not, amounted to an accident or mistake within the meaning of Rule 37.14(1)(b). Accordingly, the motion in Abbott to set aside the default judgment was dismissed.
[39] From the evidentiary record in this case before the court, I find that the Plaintiff has shown with sufficient plausibility that it was unrepresented at the November 13, 2018 hearing due to accident or mistake. I accept that Mr. Badyal had notice of the Defendant's return of motion, and was aware that something potentially would or could happen in court that day. I also accept that Mr. Badyal forwarded an electronic copy of the notice of return of motion to Plaintiff's new counsel by email and thus believed, albeit incorrectly, that new counsel was aware of the hearing. There is no explanation in the record as to why new counsel did not open the attachment to Mr. Badyal's email message containing the notice of return of motion for the November 13, 2018 hearing. However, as an officer of the court, new counsel advised that he simply did not advert to opening the attachment during this email exchange. There is also no evidence in the record as to any further immediate communications that Mr. Badyal and Plaintiff's new counsel had regarding the return of the November 13, 2018 motion. Nevertheless, I appreciate that Plaintiff's new counsel could have delivered notice of a change in representation, or sought a short adjournment of the motion (i.e. given that he had only been recently retained to act for the Plaintiff), which in either case likely would have disposed of the entire motion on November 13, 2018.
[40] From the evidence on this motion, I am persuaded that Mr. Badyal came to believe on November 12, 2018 that former counsel would likely act for the Plaintiff in dealing with the November 13, 2018 return, at least until the matter of the Plaintiff's retainer could be addressed. In arriving at this finding, I observe that former counsel previously had delivered a trial record (i.e. to preserve the Plaintiff's rights) without actual instructions when she brought her motion to be removed as the Plaintiff's solicitor of record in June 2018. While I recognize that former counsel did so to avoid prejudicing the Plaintiff's lien rights, her efforts in doing this shed some light as to the Plaintiff's expectations under its prior retainer arrangement with former counsel. I accept that the Plaintiff's failure to appear at the return of the November 13, 2018 motion resulted in part from its failure to properly arrange for its representation on that occasion with full diligence. Its non-attendance on the motion also may be attributed, in some measure, to the apparent gap in communication between Mr. Badyal and Plaintiff's new counsel. Regardless, based on all of the foregoing circumstances, it is my determination that the Plaintiff has demonstrated that its failure to attend the November 13, 2018 dismissal motion was inadvertent, and resulted from accident or mistake.
[41] In arriving at this finding, I note that the facts of this case clearly are distinguishable from those in Ewart v. Chapnick, [1995] OJ No. 859 (SCJ) and Zsoldos v. Association of Architects (Ontario), [2004] OJ No 309 (CA), in which the non-attending parties in those cases were found to have deliberately chosen to not appear in court, and not because of an accident or mistake. As well, the decision in Armstrong Family Industries Inc. v. International Printing Machinery Inc., [2005] OJ No. 5322 (SCJ) to not set aside an unopposed summary judgment was overturned by the Court of Appeal on appeal after it found that the non-attending party's failure to respond to the subject motion was due to a mistake within the meaning of Rule 37.14(1)(b): 2006 CarswellOnt 4039 at paras 2-3.
b) The Plaintiff Moved "Forthwith"
[42] As set out below, I find that the Plaintiff moved forthwith in bringing its Rule 37.14(1) motion to set aside the dismissal order.
[43] A party moving under Rule 37.14(1) to set aside an order must move "forthwith" after the order comes to the party's attention: Ontario (A.G.) at para 34. There flexibility in determining the requirement for forthwith action, having regard to the purpose of the rule, the purpose of the requirement for prompt action, the length of the delay, the reasons and circumstances of the delay, and all of the surrounding circumstances of the case: Op. cit. at paras 40-45.
[44] On or about November 22, 2018, the Plaintiff received correspondence from Defendant's counsel dated November 14, 2018 enclosing the dismissal order. The Plaintiff immediately contacted former counsel, who advised that she had not received Mr. Badyal's earlier email messages, and requested payment to copy the file which the Plaintiff later paid. On December 4, 2018, former counsel made available the file contents, which the Plaintiff forwarded to its new counsel the next day. On December 7, 2018, new counsel received the file and upon review advised the Plaintiff that the action had been dismissed. On December 21, 2018, the Plaintiff formally provided a retainer to new counsel who promptly advised Defendant's counsel that day of his instructions to move to set aside the November 13, 2018 dismissal order. In all of the circumstances, I am persuaded that the Plaintiff has satisfied the second arm of the test for engaging Rule 37.14(1) by having demonstrated that it met the "forthwith" requirement by moving promptly to set aside the dismissal order with sufficient diligence after becoming aware of the dismissal order.
c) The Plaintiff Moved Without Unreasonable Delay
[45] On January 2, 2019, the parties agreed to a timetable for this motion to set aside the November 13, 2018 dismissal order, and also agreed to terms by which the Defendant would not take steps to seek the release of the lien bond until the Plaintiff's motion could be heard. Later that day, Plaintiff's new counsel served a notice of appointment of lawyer. The Plaintiff brought its motion pursuant to that timetable. In the circumstances, I find that the motion was brought as promptly as reasonably practicable and without unreasonable delay, which was not seriously contested. Accordingly, the third arm of the Rule 37.14 test is met.
d) Prejudice
[46] I find that the Plaintiff would be substantially prejudiced and irreparably harmed if the dismissal order is not set aside because it will lose its lien and be unable to commence another action because the limitation period has expired. In effect, the Plaintiff's claim will be dismissed for procedural reasons and will not be tried on the merits.
[47] The Defendant submits that on a motion to set aside a dismissal order where the limitation period has expired, a presumption of prejudice arises and the onus is on the Plaintiff to rebut the presumption: Williams v. Whitefish River First Nation, 2014 ONSC 1817 (Master) at para 26-27; Beneficial Investment (1990) Inc. v. Hong Kong Bank of Canada, [2006] OJ No. 1225 (Master) at para 29. This presumption may be overcome by evidence that relevant documents have been preserved, that key witnesses are available, or that certain aspects of the claim are not in issue: Williams at para 27. With that said, I find that the presumption of prejudice is easily rebutted in this case, given its unique factors.
[48] In my view, the lien claim will likely be determined on the documentary evidence, which seems to have been largely preserved by the parties based on the comprehensive materials filed on this motion. The Defendant undertook fairly extensive cross-examinations on affidavits made in support of this motion, and the Plaintiff answered a number of undertakings arising from the examinations. As such, the parties appear to have a fairly good appreciation of the underlying facts, although further examinations for discovery may be required. From the record on this motion, I also expect that witnesses who dealt with the lien generally would be available to testify at trial. I add that the Defendant did not specifically lead evidence of actual prejudice, as it had the onus to do: Beneficial Investment at para 29. In the circumstances, I find that the Defendant would not be prejudiced by returning to the status quo that existed immediately prior to the November 13, 2018 dismissal order because the bond has not been released. I also find that setting aside the dismissal order will not cause the Defendant any prejudice that could not be compensated for with an order for costs. In the circumstances, I would not dismiss this motion on the ground that setting aside the dismissal order would prejudice the Defendant.
e) Merits of the Action
[49] I accept that the Plaintiff appears to have a reasonably strong claim against the Defendant that arguably may succeed at trial, as Mr. Badyal deposed in his affidavit which was not challenged on cross-examination. The Defendant has not led any evidence to suggest that the Plaintiff lacks a meritorious claim. In the circumstances, I find that the merits weigh in favour of setting aside the dismissal order to permit the claim to proceed to trial.
Outcome
[50] Based on the foregoing, I find that the motion should be granted and the dismissal order of November 13, 2018 should be set aside.
[51] The Plaintiff was successful and is entitled to its costs. The motion featured a rather substantial evidentiary record with moderate factual complexity, as well as legal issues of average complexity. The motion to set aside the final dismissal order was important to the parties, who vigorously argued it as a long motion. In all of the circumstances, I find that the Plaintiff is entitled to its costs on a partial indemnity scale, in the fixed amount of $13,000.00, inclusive of taxes and disbursements, which I find to be just and proportional given the nature and complexity of this motion, and its outcome. This costs figure also incorporates a modest discount to reflect the degree of fault attributable to the Plaintiff (i.e. that should not be borne by the Defendant in this costs award) that contributed to the dismissal order being made for which this motion to set aside was brought.
[52] Based on all of the foregoing, I hereby make the following orders:
the motion is granted and the November 13, 2018 order made by Fowler Byrne J. to dismiss this action is set aside; and
the Defendant shall pay the Plaintiff its costs of this motion in the fixed amount of $13,000.00, inclusive of taxes and disbursements, within 30 days.
Doi J.
DATE: August 30, 2019
COURT FILE NO.: CV-16-2627
DATE: 2019 08 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LEEN STEELS LTD. v. THE ATLAS CORPORATION
COUNSEL: I. Latimer, for the moving Plaintiff
B. Greenberg, for the Defendant
ENDORSEMENT
Doi J.
DATE: August 30, 2019