Court File and Parties

Court File No.: CV-13-481143 Date: 2019-12-12 Superior Court of Justice - Ontario

Re: James Clarke, Plaintiff And: Gayle R. Tennant, Victor Trnavskis, Elizabeth A. Silcox, Sevdi Begolli, Megabus Northeast, LLC, Coach USA Inc., The Travelers Indemnity Company of Connecticut, Defendants

Before: Gans J.

Counsel: Stanley Pasternak, for the Plaintiff Emily Schatzker, for the Defendant Gayle R. Tennant James Wilson, for the Defendants Sevdi Begoli, Megabus Northeast, LLC, Megabus USA, LLC, Coach USA Inc. Stacey Iordanis, for the Defendant Elizabeth Silcox

Heard: November 28, 2019

Endorsement

[1] The Rules of Civil Procedure ("Rules") outline the purposes of pre-trial conferences. The rules are designed to give effect to these purposes. Failure to follow the Rules can result in a waste of scarce judicial resources and cause a party or parties to unnecessarily incur costs. (See, for example, Rules 1.04(1.1), 50.01, 50.05 (1), (2), and (3), 50.06, 50.07, and 50.12)

[2] I take my role as the presiding judge of pre-trial conferences very seriously. I prepare extensively by reading the materials provided, by making detailed notes in advance of the session and by organizing myself and the parties in the fond hope that a resolution of all or at least some of the issues will be achieved. If settlement cannot be effected, then I will embark on a trial management session to ensure that the trial of the action is streamlined and will proceed in an orderly and expeditious fashion.

[3] I expect counsel and their respective clients to be similarly briefed and attend the conference with an open mind.

[4] The plaintiff in the instant action is a complete 'innocent'. He was a passenger on an intercity public bus that was involved in a sudden accident on the QEW, clearly not of his making. He sustained permanent and serious injuries because of the accident.

[5] The cause of the accident, in whole or in part, and the ultimate responsibility for the plaintiff's injuries, whatever the extent of them is, is not clear of doubt. When this matter proceeded to mediation before a very experienced personal injury mediator, significant offers to settle the plaintiff's claims were made by each of the Defendant Bus Company and the Defendant Silcox. The matter did not settle at the mediation.

[6] The plaintiff himself travelled from Ireland to the pre-trial conference expecting to negotiate a complete or partial resolution of his long-outstanding claims. Regrettably, the Defendant Silcox's counsel and insurance adjuster were both relatively new to the file. Their familiarity with the matters in issue, from my observation, was not what they might or should have been.

[7] More regrettably, they came to the pre-trial with marching orders, communicated to no one in advance, particularly the plaintiff or his counsel, which did not change at any time during the session despite my entreaties. The Defendant Silcox, contrary to the position expressed at the mediation, maintained a position of "no liability" based, seemingly, on its engineering report and some less than cogent and persuasive evidence obtained on discovery.

[8] While a party defendant is permitted to maintain a "no liability" position, it should only do so if it is based on a rational foundation in law or on the evidence. (See the decision of Koehnen J. in Rososhansky v. Williams, 2018 ONSC 1964, 291 A.C.W.S. (3d) 260). I was not persuaded that the position adopted by this defendant met that criteria.

[9] More to the point, if the Defendant Silcox's position had changed from the time of the mediation to the moment of the pre-trial, such should have been communicated to the parties opposite in advance of the plaintiff having undertaken the cost and expense of his coming to Canada. His involvement at the pre-trial could have easily been accommodated by way of telephone or teleconference, both of which modalities are contemplated by the Rules (See Rule 1.08 (1) and (5)).

[10] The other defendants, including the Defendant Tennant, and the plaintiff came to the pre-trial conference prepared to negotiate a settlement of the plaintiff's claims, leaving for trial the dispute between the defendants, inter se.

[11] In my opinion, because of the obdurate behaviour of the Defendant Silcox when it was apprised of the fact that the other defendants were ready, willing, and able to discuss settlement and the plaintiff was prepared to move significantly from his position at the mediation, but for the case management matters that I insisted on being attended to, the pre-trial conference was, in the words of Koehnen J., "substantially a waste of time" (at para. 5).

[12] I intend to exercise my discretion in accordance with section 131(1) of the Courts of Justice Act and Rule 50.12 of the Rules. The Defendants Silcox shall forthwith indemnify the plaintiff for his out of pocket expenses set out at paragraph 12 of his written submissions, totalling $2151.00.

[13] In addition, the Defendant Silcox shall pay the plaintiff's counsel fee for the pre-trial conference forthwith, which I fix at $750 plus HST.

[14] The Defendant Silcox shall also pay the fees of the other defendants' counsel, in the cause, which I fix at $600 plus HST.

Gans J.

Date: December 12, 2019