COURT FILE NO.: CV-12-443718

DATE: 2019 10 25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRIAG HURST, Plaintiff

- and -

JAMES HANCOCK, DARWIN PRODUCTIONS INC. and TRADEPOINT 360 INC., Defendants

BEFORE: Master Todd Robinson

COUNSEL: M. Singh, for the plaintiff and the plaintiffs in CV-15-533382

K. Marciniak, for the defendants, James Hancock and Darwin Productions Inc.

T. Gleason, for the defendants in CV-13-493058

HEARD: October 25, 2019

E N D O R S E M E N T

[1] Four motions proceeded before me today, as follows:

(a) a motion by Graham Partners LLP, Graham, Wilson & Green and HGR Graham Partners LLP (together the “HGR Defendants”), who are defendants in an action by the plaintiff in CV-13-493058, originally returnable on April 19, 2017, seeking an order for trial together with this action with common documentary and oral discoveries;

(b) a cross-motion by the defendants, James Hancock and Darwin Productions Inc. (the “Hancock Defendants”), originally returnable September 5, 2019, seeking trial together of this action with a related action with the same defendants in CV-15-533382 (the “Pardee Action”), with common documentary and oral discoveries;

(c) an outstanding cross-motion by the plaintiff, originally returnable October 20, 2017, seeking orders:

(i) transferring a claim between the plaintiff and the Hancock Defendants in the Orillia Small Claims Court bearing court file no. SC-10-303 (the “Orillia Small Claims Action”) (misidentified as an Owen Sound proceeding in the notice of cross-motion) and consolidating it with this action;

(ii) for trial together of this action with the Pardee Action; and

(iii) for leave to amend the statement of claim in this action; and

(d) a motion by the plaintiff, originally returnable July 25, 2018, for leave to amend the statement of claim in this action (essentially superseding the outstanding relief from the plaintiff’s prior cross-motion).

[2] In working with counsel prior to commencement of motion argument, resolution of all motions was reached except for the order sought regarding transfer of the Orillia Small Claims Action, the HGR Defendants’ motion, and costs.

Orillia Small Claims Action

[3] Although not cited by the plaintiff in his notice of cross-motion, transfer of a proceeding in a different court and consolidation or trial together with another proceeding is governed by Section 107 of the Courts of Justice Act, RSO 1990, c. C.43. Any order transferring the Orillia Small Claims Action and consolidation or trial together with this action would be pursuant to that section. Section 107(4) requires that the necessary motion be made to a judge. I accordingly lack jurisdiction to determine this relief and must adjourn it to be heard by a judge.

[4] Having discussed with the plaintiff and the Hancock Defendants, the Hancock Defendants do not oppose transfer of the Orillia Small Claims Action provided that (i) the action remains active, (ii) the plaintiff provides proof of the alleged consent by the Hancock Defendants’ former counsel to staying the proceeding, and (iii) the monetary claim in the action remains capped at $25,000 in damages following any transfer. Plaintiff’s counsel has confirmed that the Orillia Small Claims Action remains active and a has apparently requisitioned a settlement conference, which is now pending. There is no evidence in the record before me of consent by the Hancock Defendants to staying (formally or informally) the Orillia Small Claims Action. That disputed issue appears to remain outstanding between the plaintiff and the Hancock Defendants.

[5] The Hancock Defendants propose that the motion for that relief be dismissed without prejudice, that the now-scheduled settlement conference proceed and, if the action is not settled, that transfer may then be revisited. The plaintiff lacks confidence that the settlement conference will be productive. He prefers to have the motion to transfer the Orillia Small Claims Action and consolidate it with this action proceed. The plaintiff has no current intention to amend the claim above $25,000, but is not prepared to foreclose that possibility if discovery evidence supports an increased claim. The plaintiff wishes to proceed with his motion.

[6] Whether or not the Orillia Small Claims Action is transferred and continued as a separate action or consolidated with this action is an open question. If transferred and continued as a separate action, the procedure applicable to the action would need to be determined by the judge hearing the motion. As it stands, issues in dispute regarding transfer of the Orillia Small Claims Action are whether the action is to be transferred, whether it will be consolidated or there will be trial together with this action, whether there will be any cap on damages, and what procedure will apply to the action if transferred. These issues will need to be addressed on the return of the motion before the judge hearing it.

Trial Together of the Pardee Action

[7] Both the plaintiff and the Hancock Defendants sought trial together of this action with the Pardee Action. The plaintiffs in that action are different, but are represented by the same counsel as the plaintiff in this action. Those plaintiffs consent to trial together. Agreement has now been reached for common discoveries in both actions, the prior dispute having been over the manner in which discovery would proceed and how transcripts would be used.

Amendment of Claim

[8] The Hancock Defendants do not oppose the amendment of the statement of claim, which are the same amendments as those previously made to the statement of claim in the Pardee Action. The Hancock Defendants wish to have a right to deliver amended statements of defence in both this action and the Pardee Action (in which the Hancock Defendants have not yet delivered an amended defence) within 30 days. The Hancock Defendants also ask that the amended statement of claim be a tracked-changes version, rather than a fresh as amended statement of claim. The plaintiff objected on the basis that the Hancock Defendants’ stipulations were not proper given the mandatory language of Rule 26.01 and that no motion has been brought to extend the time to deliver an amended statement of defence in either this action or the Pardee Action.

[9] By agreement now reached, leave to amend will be granted to amend per the track-changes version of the draft amended statement of claim. The Hancock Defendants will also be granted leave to amend its statements of defence in both this action and the Pardee Action within 30 days.

HGR Motion for Trial Together

[10] Having heard argument on HGR’s motion, my decision must be reserved. It will accordingly be the subject of subsequent reasons.

Orders

[11] I accordingly order as follows:

(a) The outstanding relief in the plaintiff’s cross-motion to have the Orillia Small Claims Action transferred and consolidated with this action is adjourned to be heard by a judge. A hearing shall be scheduled on a mutually-convenient date to be scheduled by the plaintiff and the Hancock Defendants with the motion scheduling unit.

(b) This action and the action in CV-15-533382 shall be tried together or one after another, as the trial judge may direct.

(c) This action and the action in CV-15-533382 shall have common oral discoveries, without prejudice to the time limits available for discoveries in each action as provided in Rule 31.05.1. For greater certainty, the Hancock Defendants shall be subject to single examination in respect of both actions. Any evidence obtained from common parties to both actions shall be treated as discovery evidence in each of the actions.

(d) The plaintiff is hereby granted leave to amend his statement of claim in this action in the form at Tab 3 of the plaintiff’s motion record dated July 16, 2018, except that the pleading shall be titled “Amended Statement of Claim” and not “Further Amended Statement of Claim”. Following the amendment, the plaintiff shall comply with Rule 26.04(3).

(e) The time for the Hancock Defendants to deliver an amended statement of defence is hereby extended to the later of 30 days from the date of this order and the date provided in Rule 26.05(1).

(f) The time for the Hancock Defendants to deliver an amended statement of defence in the Pardee Action is hereby extended to 30 days from the date of this order.

Costs

[12] I have heard the parties’ submissions as to costs of the two plaintiff’s motions and the Hancock Defendants’ motion and have reserved my decision. That will be the subject of a subsequent endorsement. Following release of my decision in the HGR Defendants’ motion, the parties will be afforded an opportunity to make written submissions as to costs.

MASTER TODD ROBINSON

DATE: October 25, 2019