Court File and Parties
BARRIE COURT FILE NO.: CV-19-0063 DATE: 20200306 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JANE MALLETTE Plaintiff – and – THE WAWANESA MUTUAL INSURANCE COMPANY Defendant
Counsel: Sherilyn Pickering, for the Plaintiff Catherine Beagan Flood, Rahat Godil and Adam Nickerson, for the Defendant
HEARD: February 27, 2020
REASONS FOR DECISION
EDWARDS j. :
Overview
[1] An adjournment of a long motion results in needless delay in the prosecution of an action, but of equal importance is the loss of precious judicial resources. These Reasons explain why an adjournment was necessitated as a result of the conduct of Plaintiff’s counsel in retaining outside counsel on the eve of the hearing.
The Facts
[2] This is a class action in which the Plaintiff is the representative member of the class and pleads, amongst other things, that there was a refusal to pay for what is known as a CAT assessment. It is also alleged that deduction of CAT assessment costs for medical and rehabilitation benefits by the Defendant constitutes an unfair practice pursuant to s. 14 of the Consumer Protection Act. The Plaintiff seeks damages for breach of contract and unjust enrichment.
[3] The statement of claim was issued in July 2019. Shortly after being served with the statement of claim, counsel for the Defendant The Wawanesa Mutual Insurance Company (“Wawanesa”) wrote to Plaintiff’s counsel taking the position that the Court of Appeal in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, had decided that the Licence Appeal Tribunal (“LAT”) had exclusive jurisdiction under s. 280 of the Insurance Act, thereby ousting the jurisdiction of this court to deal with the Plaintiff’s class action.
[4] Plaintiff’s counsel took a contrary approach, evidenced by the fact she did not discontinue the action. Largely relying on the Court of Appeal’s decision in Stegenga, Wawanesa served a motion record on December 16, 2019, in which Wawanesa seeks an order under Rule 21 dismissing the proposed class action.
[5] After consultations between both counsel, on January 23, 2020 the court fixed a one day long motion for the argument of Wawanesa’s motion. The long motion date was scheduled for February 27, 2020.
[6] In accordance with Rule 21, Wawanesa served its factum on February 13, 2020. On February 20, 2020, Plaintiff’s counsel served a Notice of Change of Solicitors which was filed with the court on February 24, 2020. The Notice of Change of Solicitors named Mr. Gary Will and Ms. Pickering as co-counsel. Mr. Will was not available to argue the motion on February 27, 2020, as he was away in Hawaii. These Reasons are in no way critical of Mr. Will.
[7] On February 21, 2020, having been assigned this matter, I requested the trial coordinator to provide me with copies of the motion materials. The trial coordinator advised me that she had received an indication from Ms. Pickering that she would be seeking an adjournment. I directed the trial coordinator to request counsel to provide me with a written explanation as to why the adjournment was being sought and what the responding position was of Wawanesa. I received those submissions in advance of hearing the motion on February 27, 2020.
[8] When the matter came before me on February 27, 2020, Ms. Pickering confirmed that she was seeking an adjournment for the following reasons:
a) Wawanesa had filed a supplemental affidavit that she wished to cross-examine on; b) she required instructions from her client; c) the recent retainer of Mr. Will who would be arguing the motion and his non-availability; d) that similar actions brought by Ms. Pickering’s office against other insurers should be heard together with this motion; e) a request for case management; and f) the suggestion that this court should wait for a decision from Justice Belobaba in a matter similar to the one that I would be deciding.
[9] The request for the adjournment was, not surprisingly opposed, and after hearing argument from counsel I reluctantly granted the adjournment for reasons that I indicated I would provide. These are those reasons.
Analysis
[10] None of the reasons advanced by Ms. Pickering for an adjournment, in my view, had any merit. The only real reason why the adjournment request was necessitated was the need to have Mr. Will present to argue the motion. Ms. Pickering was candid enough to admit that she did not feel she had the experience to argue the motion, hence the need to have Mr. Will present to do so. As I explained to Ms. Pickering, but for her candidness and the fact that her client would have been severely prejudiced had she been forced to argue the motion, I would not have granted the adjournment.
[11] The adjudication of disputes, whether it be by way of a Rule 21 motion or by way of a trial, must reflect a fair and just process which is proportionate, timely and affordable. The timeliness within which the court adjudicates matters is subject to the finite resources available. A long motion date requiring the entirety of a day is a not insubstantial allocation of judicial resources. The adjournment of a fixed date almost invariably results in that allocation of resources being wasted.
[12] There are some lawyers who have a personal injury practice who do not take contested matters before the court. Often those contested matters are resolved by negotiation. Where negotiation, however, is unsuccessful, these lawyers then obtain outside “trial” counsel. These observations apply not only to the Plaintiff’s bar, but also to the ever increasing number of in-house insurance lawyers who will retain outside trial counsel to conduct contested matters in court.
[13] There is absolutely nothing wrong with such an approach. However, where counsel feel the need to retain outside counsel, they must do so with the clear understanding that any lawyer who is retained to argue a contested matter is available on the date scheduled by the court. This applies to both trial dates and motion dates.
[14] On the facts before me, it was patently obvious that Ms. Pickering did not intend to argue this motion. This was evidenced not only by the fact that she retained Mr. Will essentially on the eve of the return date, but equally by the fact that she had not filed a factum as required by Rule 21. By not filing a factum, Ms. Pickering simply assumed the court would grant her request for an adjournment.
[15] There was absolutely nothing wrong, in my view, with Ms. Pickering retaining outside counsel, but when she did so she knew that the return date was February 27, 2020. She equally knew that Mr. Will was away in Hawaii. Her conduct resulted in the loss of a day of precious judicial resources that could have been available to other litigants. Her conduct equally resulted in not insignificant costs thrown away on the part of counsel for Wawanesa.
[16] Chief Justice Strathy in Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, stressed at para. 35 that where there are last minute adjournments there is an inevitable waste of precious judicial resources and public funds.
[17] In Khimji v. Dhanani, Doherty J.A. at para. 35 stated:
Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. Where a litigant successfully obtains the adjournment of a trial having failed to exercise due diligence in retaining counsel, that litigant must expect that absent unforeseen circumstances, the trial will proceed on the new trial date…
[18] The observations of Doherty J.A. in Khimji were equally applicable to the facts presented before me on February 27, 2020. The principles that I was required to apply, and which I now apply, also come from the Court of Appeal’s decision in Khimji, where the court suggested a number of considerations of general application that a court should take into account when confronted with an adjournment. These considerations include the following:
a) the overall objective of civil proceedings being a just determination of the real matters in dispute; b) prejudice caused by refusing or granting the adjournment; c) a party’s explanation for not being ready for trial; and d) the length of the adjournment requested and disruption to the court’s trial schedule.
[19] The aforesaid principles enunciated by the Court of Appeal in Khimji were expanded upon by Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 O.J. No. 1497, where Perell J. confirmed that the granting or refusal of an adjournment is very much a matter of the exercise of the court’s discretion. Amongst the various principles referenced by Perell J. in Ariston Realty which I find are applicable to the facts before me, are the following:
a) that justice not only be done but appear to be done; b) the overall objective of the determination of the matter on its substantive merits; c) the prejudice not compensable and costs, if any, suffered by a party by the granting or the refusal of the adjournment; d) whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment was refused; and e) the need of the administration of justice to orderly process civil proceedings.
[20] If I had not granted the adjournment, and given the candid admission of Ms. Pickering that she did not feel she had the experience to argue the motion, in my view there would not have been a determination of the matter on its merits. As I indicated during the course of argument and as I now indicate in these Reasons, there would have been irreparable prejudice to the Plaintiff given the inability of Ms. Pickering to argue the motion.
[21] I write these Reasons to make it abundantly clear that in the future, where counsel of record intends to retain outside counsel to argue matters that are already scheduled in the court’s calendar, such as a long motion or a trial, that counsel must ensure that whoever they choose to retain is available to argue the matter on the scheduled date. It is simply not something that this court will consider in the future as the basis of a request for an adjournment. If counsel have agreed on a date and that date has been fixed in the court calendar, then counsel must assume that the matter will proceed on that date absent “exceptional circumstances”. The retainer of so-called trial counsel to argue the matter will not constitute exceptional circumstances and the matter will proceed as scheduled.
[22] As for the question of the costs thrown away, after hearing argument with respect to quantum I have ordered $10,000 in costs inclusive of HST and disbursements, which costs are payable within 30 days. I leave it to Ms. Pickering as to whether it is appropriate or not pass on these costs to her client for payment.
[23] I have advised counsel that I will case manage this matter. The matter is adjourned to April 22, 2020.