Court File and Parties

Court File No.: 681-17 Date: 2019-11-19 Superior Court of Justice - Ontario

Re: Carlos Loye, Plaintiff And: George William Bowers, Litigation Administratror for the Estate of Laurie Bowers, deceased., Defendant

Before: Turnbull, J.

Counsel: Georgiana Masgras and Kevan Wylie, Counsel, for the Plaintiff Elisabeth van Rensburg and Rachel Pano, Counsel, for the Defendant.

Heard: November 12, 13, 15 and 18, 2019

Reasons on a motion

Overview of the Issue:

[1] The defendant has brought a motion pursuant to Rule 21.01 at the outset of this personal injury jury trial which commenced November 12, 2019. I granted leave to both parties to file affidavits pursuant to Rule 21.01 (2). After the jury was picked, the motion was argued. The issue involves the evidentiary impact of a guilty plea entered by the plaintiff in December 2016 to a charge under of the Highway Traffic Act[^1] and whether the plaintiff can lead evidence at trial that contradicts that guilty plea.

[2] On November 1, 2019, (just eleven days before the commencement of the trial) counsel for the defendant brought this motion seeking an order which included the following relief:

a. an order precluding the Plaintiff from adducing evidence at trial that is contrary to the essential facts of the Disobey Lane Light conviction.

b. That the essential facts of the Disobey Lane Light conviction are conclusive of the Plaintiff’s negligence in this action.

[3] In that regard, the defendant relies on Section 22.1 of the Ontario Evidence Act[^2] which provides as follows:

Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a) No appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b) An appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

[4] Although the section speaks of a “crime”, our courts have held it is applicable to a provincial regulatory offence such as the one to which the plaintiff pled guilty.[^3] Both parties concurred in that position.

Overview of the Facts:

[5] The Plaintiff has brought an action against the late Laurie Bowers as a result of a motor vehicle accident which occurred at the corner of Adelaide Street North and Queens Avenue in London Ontario on December 26, 2015. The intersection was governed by a stop light. The police were called and after an investigation, the plaintiff was charged with disobeying a red light, contrary to section 144(18) of the Highway Traffic Act. He was also charged under section 106(4)(b) of the Highway Traffic Act with driving with a child under the age of 16 who was not properly secured by a seat belt.

[6] He retained a paralegal firm (TD) to represent him in defending the charge against him. In due course, a para legal from TD entered a plea guilty on December 12, 2016 to an amended charge of “disobey lane light” contrary to section 144(10) of the Highway Traffic Act[^4]. The plaintiff was not present. The plaintiff lost no demerit points but was fined.

[7] In 2017, he commenced this action and in his statement of claim, he asserted that it was the defendant who disobeyed the stop light and that he had lawfully proceeded through the intersection on a green light.

[8] When he attended his examination for discovery, he admitted that he had pled guilty to entering the intersection on a red light. However, at question 131 of his examination for discovery, he swore that he entered the intersection when facing a green light for the lane of traffic in which he was travelling.

[9] The defendant, having this information, did not bring summary judgment motion, despite indicating to the judge presiding at one of the Assignment courts that an adjournment was necessary to bring such a motion. Counsel for the defendant stated before this court that that contemplated motion was not with respect to this issue, but I must ask myself why such a motion as this was not brought at a much earlier date than the outset of trial. Clearly if the motion was granted, significant legal costs arguably would have been saved by both parties.

Position of the Defendant:

[10] The defendant’s lawyers argue that shortly after they served their notice of motion on November 1, 2019 (just eleven days before this trial was to start) they became aware on November 5, 2019 that the plaintiff was taking the position that:

a. he did not receive fully informed advice at the time he made the decision to plead guilty,

b. that he pled guilty because he was unable to attend court that day as he was just beginning a new job.

c. The paralegal Lisa Verstegen, an employee of TD, acted either without the plaintiff’s instructions or at variance to his instructions on December 12, 2016.

[11] The defendants argue that the doctrine of abuse or process as articulated by the Supreme Court of Canada[^5]and applied by the Ontario Court of Appeal[^6] preclude Mr. Loye from trying to relitigate the issue of whether he had entered the intersection on a green light. They argue that this constitutes trial by ambush and in the event that the motion is refused, they want the court to charge the jury to make an adverse inference against the plaintiff for failing to provide any evidence on this issue until late in the proceedings.

[12] Counsel for the defendant asserts that if successful on this motion, it would not prevent the plaintiff from leading evidence about contributory negligence of the defendant. She submitted that to permit the plaintiff to re-litigate the very matter he has acknowledged in his guilty plea would constitute an abuse of the judicial process. She noted that he did not appeal the conviction when he was made aware of it and he paid the fine. In fact, at page 5 of the document brief provided by the paralegal firm, it is noted that the plaintiff called the paralegal office and “he was very happy with the outcome” when it was explained that with the reduced charge to which a plea was entered on his behalf, he would apparently not lose any demerit points. Counsel also noted that during his examination for discovery, the plaintiff never indicated that he was disputing the fact he pled guilty to the offence. Understandably, counsel for the defendant did not ask him if he intended to challenge the validity of that plea. Counsel for the plaintiff did not raise the issue during discovery or at any time until recently in response to being served with the defendant’s motion. She suggested that it should have been self-evident from his pleadings and answers at examination for discovery that he was alleging the defendant was responsible for the collision.

[13] Counsel for the defendant relies on the words of Brown J. (as he then was) in Andreatis v. Pinto, supra at para. 40 where he stated that the proposition advanced by counsel for the defendant Pinto (relative to a plea of guilty she had entered to permitting a motor vehicle to be operated contrary to the Compulsory Automobile Insurance Act[^7]) “would render any plea meaningless for purposes of the application of the abuse of process doctrine – a defendant would need only to testify in a subsequent proceeding to a different version of facts than those that underpinned the conviction in order to trigger the ability to re-litigate the issue in question.”

[14] The file of the paralegal firm which represented the plaintiff on the Highway Traffic Act charge was requested by counsel for the plaintiff in 2017 but was only received on the first day of this trial from counsel for the paralegal firm.

Position of the Plaintiff:

[15] Counsel for the plaintiff argued the presumption under s. 22.1 of the Evidence Act is rebuttable by production of “evidence to the contrary” and argued that the plaintiff should be permitted to adduce evidence that contradicts the facts essential to the conviction including the following:

A. Counsel for the plaintiff has obtained an accident reconstruction report prepared by a Professional Engineer and a Traffic Signal report identifying the fact that there was an advanced green signal facing northbound traffic at the relevant intersection. She contends that these reports are “evidence to the contrary” which will help the plaintiff overcome the presumption that the plea of guilty reflected what occurred at the time of the accident. The defendant disputes the admissibility of those reports and has advised the court that if the trial proceeds, such opposition will be maintained.

B. Plaintiff’s counsel further noted that the costs of such reports would not have been justifiable for the plaintiff to incur to just deal with the Highway Traffic charges. She further argued that those expenses and the cost of leaving work in Guelph to travel to London for the trial were reasonable concerns justifying Mr. Loye not mounting a robust defence to the charges.

C. The plaintiff intends to prove that the guilty plea negotiated by the para legal representative Lisa Verstegen was not an informed decision by the plaintiff. There may be a serious issue of whether the plaintiff understood the full ramifications of a plea of guilty to a reduced offence under the Highway Traffic Act and its effect upon his ability to prosecute a personal injury case for injuries sustained in the accident. The plaintiff did not have the advice of a lawyer at the time the plea of guilty was entered. Furthermore, he was not even in the courtroom at the time that time.

D. There was no trial and determination of guilt based on the testimony of witnesses, the investigating police officer or the defendant. In fact, it appears from the transcript of the plea proceedings, that it was a very summary, short court proceeding. It does not place the court in the position of rendering a decision contrary to the plea of guilty before the Ontario Court of Justice which would not maintain the support of an informed public.

[16] Counsel for the plaintiff submits that permitting this evidence to be presented in the face of a guilty plea would not constitute an abuse of process.

Analysis:

[17] The evidence of the prior conviction under the Highway Traffic Act is admissible in subsequent civil proceedings and is prima facie evidence of liability but not conclusive evidence of liability.[^8] It is a rebuttable presumption. The courts have dealt with this issue in many cases to which I have been referred.

[18] In most cases where there has been a full trial and finding of guilt, our courts have determined that it would be an abuse of process to permit the plaintiff to adduce evidence to the contrary to refute the court’s finding of guilt.[^9] Public policy reasons clearly dictate that perpetual re-litigation of issues is not sustainable nor acceptable. The principles of finality and credibility in the judicial process are important.

[19] In Toronto v. C.U.P.E, supra (at footnote 5), the Supreme Court of Canada held at para. 20 that the doctrine of abuse of process acts as the mechanism by which to determine evidence rebutting, or contrary to the conviction may be tendered in a subsequent civil proceeding. The presumption of guilt established by the conviction is rebuttable only where the rebuttal would not constitute an abuse of the process of the court. At para 43, the court stated that the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of the courts, not the interests of the parties. At paragraphs 52 and 53 of the Toronto v C.U.P.E. decision, the court emphasized that re-litigation is to be avoided unless the circumstances show that re-litigation is necessary to enhance the credibility and effectiveness of the adjudicative process as a whole. One of those circumstances is when fairness dictates that arguably the original result should not be binding in the next trial. The Supreme Court further noted at para. 53 that if the stakes in the first trial are very minor and fail to generate a robust defence in the first proceeding, if the subsequent stakes are considerable, then fairness would call for the administration of justice to permit the second proceeding to advance rather than to insist on finality prevailing.

[20] In the case of Hannah v. Abbott, (2006) 2006 CanLII 27865 (ON CA), 82 O.R. (3d) 215 (C.A.), Laforme J.A. stated at paras. 31 and 32 that the doctrine of abuse of process should be a flexible process to protect litigants from a miscarriage of justice. He cited Sharpe J. (as he then was) in K.(F). (Litigation Guardian of), 2000 O.J. No. 922, (SCJ) at para. 44 who referred to various examples of where a litigant may mitigate or avoid the effect of a prior conviction in a subsequent civil procedure. Sharpe J. wrote that two of these could be when the party can adduce new evidence not available at the prior trial and/or showing that there was some lack of fairness or representation in the prior proceedings.

[21] In Andreadis et al. v Pinto et al, 2009 CanLII 50220 (ON SC), 98 O.R.(3d) 701 (SCJ) at para. 20, the court adopted the elements of a valid guilty plea articulated by the Ontario Court of Appeal in R.v T.(R) 1992 CanLII 2834 (ON CA), 1992 10 O.R. (3d) 514 at paras. 12 and 14 which are partially as follow:

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.

[22] Based on the evidence and submissions of the parties before me on this motion, I felt it important to hear the plaintiff and the para-legal law clerk who was in court at the time the plea was entered. As a result, I ordered that a voir dire on the issue should be held with those persons giving viva voce evidence.

Evidence on the Voir Dire:

Evidence of Lisa Verstegen:

[23] Ms. Verstegen is a licenced paralegal in good standing with the Law Society of Ontario. She was employed in 2015 with Burrows Professional Corporation operating as Ticket Defenders (hereinafter TD). She brought to court with her the file of TD which relates to this matter and it was entered as exhibit VD 1 in these proceedings. It contains 43 pages of documents and they are hereinafter referred to by their page number.

[24] She confirmed that the records indicated that Mr. Loye had come to their firm on December 29, 2015, just three days after the accident. She was not certain who conducted the initial interview with him but felt that it was probably a former para legal employee named Sarah Alexander. At page 4, under the heading “case details”, Ms. Alexander wrote Adl N. (which was the direction Mr. Loye was travelling) and “light was green”. Mr. Loye testified that is what he told her. In fact, in the entire file there is no record of the plaintiff ever having indicated to TD that the stoplight facing him as he entered the intersection was not green.

[25] At page 5, Ms. Verstegen identified the document as TD’s client retainer form. The charges facing Mr. Loye were written into the document and thereunder, three choices were offered to the client. She testified that it is the practice for para legal personnel at that firm to review the entirety of the document with each client before having the client sign it. Mr. Loye denied it was reviewed with him and that he was simply asked to initial the first blank beside the first option. In part, that stated:

A. WITHDRAWAL OR GUILTY PLEA: I request that The Firm seek to negotiate and enter a Guilty Plea to the original or lesser offence. I acknowledge that I have committed the offence that I have been charged with, but I would like the Firm, or their assigned Agent, to attend court on my behalf to see if the charge can be eliminated, or reduced. If not, then I authorize The Firm to enter a guilty plea on my behalf, in my absence and without further notice, to the best available charge, which I understand may be the original charge if a further reduction cannot be negotiated.

[26] The next two sections of the document provided in part as follows:

B. WITHDRAWAL OR TRIAL ONLY unless further instructions provide: I believe I am innocent of the charge and I am not interested in a reduced charge; my only instructions at this stage are to withdraw or proceed to trial, understanding I may change these instructions by so advising at any time in the future.

C. DECISION DEFERRED to be determined once disclosure is secured and reviewed. In the absence of further instructions, proceed to trial.

[27] Mr. Loye signed the document in the bottom left hand corner.

[28] Ms. Verstegen was assigned the file by TD to act as their agent on the case. She agreed she never met with Mr. Loye. The first trial date of May 2016 was adjourned to December 12, 2016 due to late disclosure of Crown evidence. On or about April 28^th, 2016, Mr. Loye retained Ms Masgras’ law firm to represent him with respect to this personal injury action. It appears that there was no contact between TD and Ms. Masgras’ firm prior to the guilty plea being entered on December 12, 2016.

[29] Ms. Verstegen testified that on or about December 7, 2016, she contacted the plaintiff about his upcoming trial. She referred to file notes at pages 2 and 3 kept by TD staff on the firm’s computer system. The general details of action taken by various employees on the file from time to time are recorded there and I accept those notes as being reasonably accurate of events as they occurred. Her entry of December 7^th indicated that she had spoken to the plaintiff about his upcoming trial scheduled for December 12^th and he had indicated that he was not sure whether he would be working and whether he would be coming to testify. He promised to call her the next day which he did.

[30] Ms. Verstegen sent Mr. Loye an email dated December 8, 2016 (page 40) confirming their telephone conversation of that day. In it, she confirmed that she would put forward every possible defence on his behalf but she could not put forward his defence that the light was green for him as he entered the intersection without him being present. That entry states that because Mr. Loye had apparently just started a new job which was to start on December 12^th, he would not be able to attend court on that day. It is clear that on the virtual eve of trial, Mr. Loye was still insisting, as he had stated in his initial interview with TD on December 29, 2015, that he entered the intersection on a green light.

[31] Ms. Verstegen wrote in her file notes (at page 3 as follows: “Advised I can test the prosecutor’s evidence, but I cannot say “Carlo says the light was green”. It is clear from that notation, the plaintiff was still insistent that the light was green when he entered the intersection. That same notation indicated that as for the charge under S. 106 (4)(b) of the HTA, the plaintiff told her that “the child was in the car seat but the seat was not buckled into car properly.” The final notation stated “advised they do not have a witness the NB light was red”. That comment does raise a serious question of how the Crown could have possibly proved its case with respect to the red light infraction.

[32] In his cross examination, Mr. Loye agreed that he did not ask for permission to not work on December 12, 2016.

[33] Ms. Verstegen could not say if she suggested that they should seek a further adjournment. When asked, she stated that she did not know why she did not adjourn the matter or try to have it adjourned. Mr. Loye agreed he did not ask her to seek one on his behalf. I must say that I would have expected her to have suggested this to her client in his circumstances. It appears that no effort was made in this respect. She further agreed that she never met him personally at any time nor did she ever explain the retainer form (page 5) to him at any time. Mr. Loye testified he was never given a copy of that document.

[34] Ms. Verstegen testified that she did attend court on December 12, 2016. The Crown indicated the witnesses were present but she did not interview or speak with any of them. The Crown approached her with a proposed settlement of the charges. The charge under s. 106(4)b would be withdrawn and a guilty plea would be accepted on the lesser charge of failing to obey a lane light contrary to s. 144 (10) of the HTA. The result would mean the plaintiff would not lose any demerit points but would pay a fine. She tried to contact the plaintiff but was unable to do so. She spoke with her superior who indicated it was a good deal. Hence, she appeared in court as the plaintiff’s agent, and agreed to facts which were read into the record. The transcript of those proceedings were entered as exhibit VD 2. The facts Ms. Verstegen agreed to are as follow:

Your Worship, on the date and time in question, the defendant was operating a motor vehicle on Queen’s Avenue and Adelaide Street North in the City of London when the defendant approached a traffic control signal for his lane of travel and disobeyed that traffic control signal and a motor vehicle collision resulted. An officer identified the defendant by way of Ontario driver’s licence. The defendant was charged accordingly.

MS. VERSTEGEN: And those facts are agreed to.

[35] From the evidence of both Mr. Loye and Ms. Verstegen, the plaintiff never did agree to those facts. At all times, he insisted he entered the intersection on a green light. The proposed facts to be read to the court were never approved by him.

[36] Ms. Verstegen testified that in the circumstances, she felt that she got the best deal available to plaintiff. Based on the fact that no witness was able to say the plaintiff entered the intersection on a red light or that the baby seat was not properly secured in the vehicle, her assumption in that respect is questionable. It certainly was a beneficial result for the plaintiff in that he did not lose any demerit points, which is important for someone who drives for his living but it had potentially devastating effects on the plaintiff’s personal injury case which is the subject matter of this action. Ms. Verstegen agreed that often people plead guilty for a number of various reasons due to family, health, work or other extraneous considerations. Others plead guilty because their memory of events seems to change as trial approaches.

[37] Ms Verstegen testified that the plaintiff never told her that he was bringing a personal injury action nor that he had retained Ms. Masgras’ law firm for that purpose. The first time her firm contacted TD was in March 2017 . She said that if she was aware of that fact, things would have possibly been handled differently as something else would be dependant upon the result of the traffic charges.

[38] Ms. Verstegen stated that she was comfortable entering the plea based upon the retainer he had signed with TD. However, she agreed that at the time he signed that document, the disclosure had not been obtained. That raises the question why he was not urged, based on his insistence that he did not enter the intersection on a red light, to initial part B or C and reserve his decision on how to proceed until the evidence against him could be assessed.

[39] She noted that on December 13, 2016, Mr. Loye called TD and when he learned of the disposition of the matter, he indicated to the employee giving him that information that he was very happy. The computerized file entries of TD (page 3) confirm that conversation and Mr. Loye agreed in his cross-examination that he did make that call to TD. He clearly had no comprehension of the fact that the guilty plea could be used against him in his subsequent civil claim for damages.

[40] Mr. Loye never voiced any concerns to TD nor did he appeal the conviction or sentence.

Evidence of Carlo Loye

[41] Mr. Loye testified on the voir dire. He recalled initialing the TD retainer form (page 5 ) and agreed it was his signature in the bottom left hand corner. He recalled being asked a series of questions and that he gave the lady interviewing him his driver’s licence and his credit card. He stated that he was not read the entire document and if he had done so, he would not have initialled it where he did. In his cross examination, after considerable prodding by Ms. Pano, he agreed he knew it was important to read legal documents before signing them.

[42] When he learned that his trial would take place in May 2016, Mr. Loye testified that he travelled to London to locate the courthouse so that he would have no difficulty finding it on the date of his trial. His evidence in that regard was not seriously questioned.

[43] Mr. Loye could only recall one phone call with representatives of TD during this matter. He recalled calling Ms. Verstegen in December 2016 to advise her that he was unable to attend on his trial date as he had just started a new job. I prefer the evidence of Ms. Verstegen on this issue. She kept contemporaneous notes of events as they unfolded in accordance with the procedures established in the TD office. I found her to be a truthful and forthright witness.

[44] Mr. Loye stated that he had no idea what would occur on December 12, 2016. He agreed that he knew the case would be heard but he did not know what would occur. When shown the transcript of the proceedings in the Ontario Court of Justice on December 12, 2016 (ex. VD 2), he testified that he did not give instructions for a guilty plea to be entered. He further stated that the agreed facts were incorrect as he was not driving on Queen’s Avenue. He stated that he did not understand what a guilty plea was and that if he was aware of it, he would have attended at court that day. I reject that portion of his evidence. I have no doubt that he understood what a guilty plea meant; however, I am not satisfied that he gave clear, unequivocal instructions to plead guilty to the red light offence or that he understood the ramifications of a plea of guilty to that offence.

[45] During his cross examination, it became apparent to me that Mr. Loye had some difficulty in understanding questions that were complicated or too long or asked too quickly. He speaks with a distinct accent and I had some difficulty in understanding some of his answers.

[46] He agreed that in his initial interview with TD, he had told the person conducting the interview that he had not been injured in the accident. He stated that the instructions he initialed on the “retainer form” (page 5) were not explained to him and he did not ask the person from TD to read it to him or clarify it. Ms. Verstegen testified that it was part of the training of all paralegal staff at TD to carefully review these alternatives with a client before having them initial and sign the document. However, it was not Ms. Verstegen who conducted that interview so I have no direct evidence to contradict that of Mr. Loye on that issue.

[47] Mr. Loye stated that no-one explained to him how the document (the retainer form at page 5) would affect him. In his affidavit signed in opposition to this motion, he swore that he did not know what he signed in that meeting despite having testified before this court that it was his initials and signature on the document. However, he denied that he was ever given a copy of that document and Ms. Verstegen was unable to provide any proof to the contrary.

[48] Mr. Loye agreed he retained Ms. Masgras as his lawyer in April 2016 but never told TD to contact her nor did he tell her to contact TD.

[49] He agreed that after the results of the trial were sent to him by email (see page 41) on the very day of the guilty plea by Ms. Verstegen, he did not complain, launch an appeal nor report Ms. Verstegen to the Law Society of Ontario for acting without his proper instructions.

Analysis:

[50] I am satisfied on the balance of probabilities that Ms. Verstegen did not act on fully informed instructions given by Mr. Loye. I am further satisfied that the plea entered on behalf of Mr. Loye was not voluntary and unequivocal. It was a plea of convenience, not a plea of culpability. I say that because I accept the evidence of Mr. Loye that the only reason he did not attend court on December 12, 2016 was because of his new job. Ms. Verstegen’s notes confirm that fact.

[51] On the evidence from the voir dire, I have no doubt that a guilty plea to the red light charge was entered despite the repeated insistence of Mr. Loye that he did not disobey a red light.

[52] Counsel for the defendant urged the court to accept that Ms. Verstegen was acting on the authority given TD under paragraph A of the retainer agreement. That paragraph refers to “the offence I have been charged with” but did not identify the offence to which TD was authorized to enter a plea. No-where in the file of TD or in the evidence of Lisa Verstegen was it suggested that the plaintiff had agreed that a guilty plea would be entered to the red light offence as opposed to negotiating a plea on the s. 106(4)(b) offence.

[53] Counsel for the defendant urged the court to accept that Ms. Verstegen was acting on the authority given TD under paragraph A of the retainer agreement. That paragraph only refers to one offence. No-where in the file of TD or in the evidence of Lisa Verstegen was it suggested that the plaintiff had agreed that a guilty plea would be entered to the red light offence as opposed to negotiating a plea on the s. 106(4)(b) offence.

[54] The plea was entered based upon the instructions contained in paragraph A of the retainer which was signed almost a year previously and prior to TD even receiving the Crown’s evidence. When that evidence was received, no-one met with him to discuss the evidence and to the discuss the fact that the Crown did not have an eye witness who could say with certainty that he entered the intersection on a red light. The decision to enter the plea was made by another employee of TD, someone with the intials JM who suggested that Ms. Verstegen “should take the deal…as deal was a good deal”. (page 3) It was not Mr. Loye who gave those instructions. There is no evidence that that employee, JM, was aware of the plaintiff’s insistence that he entered the intersection on a green light.

[55] I have no doubt that Mr. Loye did not understand the full effect of a plea of guilty upon his subsequent decision to bring this action for damages allegedly sustained in this accident. There was no determination of the guilt on the merits which would have included evidence and argument. I find that it was reasonable for the plaintiff not to robustly and fully defend the Highway Traffic Act charges by retaining experts and lawyers when at first glance they would appear capable of being resolved much more affordably.

[56] Based upon the unique facts before this court on this motion, fairness dictates that the administration of justice in this particular case would be better served by permitting the trial to proceed on the issue of liability rather than insisting that finality shall prevail

Proceeding Irregularities:

[57] The plaintiff urged the court to dismiss this motion based on delay in bringing the motion. As noted above, the defendant contemplated such a motion over a year ago, but for reasons not articulated to the court, chose to bring it just days prior to the trial. It is clear that the plaintiff has had to “scramble” to respond. Rule 21.02 provides that a motion under Rule 21.01 shall be made promptly and a failure to do so may be considered by the court in assessing costs. The plaintiff relies on the decision of Rouleau J. (as he then was) in Fleet Street Financial Corp. v Levinson (2003) 31C.P.C.(5^th) 145 (SCJ) as authority for the proposition that the rule does not prevent the court from dismissing such a motion for delay in bringing it.

[58] But delay in this case is a two-sided sword. In my view, the plaintiff had a continuing obligation pursuant to Rule 31.09 to provide information to the defendant that the plaintiff was going to be leading evidence to rebut the guilty plea to the Highway Traffic Act offence and to provide particulars of that evidence. The purpose of that rule is clear: the courts want to avoid trial by ambush. The plaintiff presented the position he is taking with respect to his plea of guilty and the evidence to be adduced in that regard only on November 5, 2019, seven days before trial, and only in response the defendant’s motion.

[59] Both parties indicated that they did not want an adjournment of the trial because of these irregularities. In the circumstances, I concur. Each has contributed to this motion being brought and argued at such a late date.

Conclusion:

[60] The defendant’s motion is dismissed.

[61] I do not feel it will be an abuse of the process of the court to allow the plaintiff to adduce “evidence to the contrary” with respect to the guilty plea. He was not represented by legal counsel in the Ontario Court of Justice when the plea was entered. It will permit the plaintiff to lead his explanation for the guilty plea. The para-legal is available to testify. The defendant will be able to cross examine the plaintiff on his earlier plea of guilty and attack his credibility on allegedly changing his position on that issue. The jury will be able to assess all the evidence on that issue and make a full, informed decision. The parties will have had an opportunity to “put their best foot forward” and feel that they have been heard.

[62] I will not direct the jury to draw an adverse inference against the plaintiff for not advising the defendant of his position about the guilty plea at an earlier date as in my view, it is not a situation where evidence is in the control of one party and that party has neglected or chosen not to call that evidence. The evidence in this case and the circumstances surrounding the guilty plea will be fully presented to the jury.

Costs:

[63] I will receive submissions on costs from counsel at a time and date mutually agreeable to counsel.

Turnbull, J.

Date: November 19, 2019

[^1]: R.S.O. 1990 C. H.8. [^2]: R.S.O. 1990, c. E23. [^3]: Andreadis v. Pinto (2009) 2009 CanLII 50220 (ON SC), 98 O.R. (3d) 701 at para. 14 (SCJ); Intact Insurance Co. v. Federated Insurance Co. of Canada, 2017 ONCA 73, 134 O.R.(3d) 241 at para 18 (ONCA). [^4]: R.S.O. 1990 C.H.8. [^5]: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] S.C.J. No 64. [^6]: Caci v. MacArthur (2008), 93 O. R. (3d)701, [2008] O.J. No. 4436, 2008 ONCA 750 [^7]: R.S.O. 1990, c. C.25. [^8]: RE Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1. (C.A.) [^9]: Some examples are as follow: Divell v Rupert [2009] O. J. No. 5479 (SCJ) per Glass J. : Toronto (City) v C.U.P.E, supra; Caci v MacArthur, 2007 CanLII 690 (Ont. SCJ).