Court File and Parties
Barrie Court File No.: CV-20-148-00 Date: 2020-07-14 Superior Court of Justice - Ontario
Re: Matthew Elson, Plaintiff And: Polyethics Industries Inc., Defendant
Before: The Honourable Madam Justice A.A. Casullo
Counsel: Jonathan De Biasi, Counsel, for the Plaintiff Melanie Simon, Counsel, for the Defendant
Heard: In Writing
Endorsement
[1] On March 20, 2020, O. Reg. 73/20: Order Under Subsection 7.1(2) of the Act – Limitation Periods was enacted under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (“Regulation 73/20”). The effect of the Order is to suspend timelines for the duration of the COVID-19 emergency, retroactive to March 16, 2020.
[2] Pursuant to O. Reg. 259/20: Order Made Under the Act – Extensions and Renewals of Orders, procedural timelines are further suspended until September 11, 2020.
[3] The plaintiff asks this court to exercise its discretion pursuant to s. 2 of Regulation 73/20, and order the defendant to deliver its Affidavit of Documents and Schedule “A” productions.
[4] This simplified procedure action was commenced in January 2020. A Statement of Defence was served on March 9, 2020, and the plaintiff served an unsworn Affidavit of Documents on March 27, 2020. In reply to counsel’s requests for the defendant’s Affidavit of Documents, counsel for the defendant variously replied that:
(a) given the suspension of timelines pursuant to Regulation 73/20, the defendant was unable to provide a date by which it would serve its Affidavit of Documents;
(b) the defendant would serve a draft with documents that were currently accessible, with a complete Affidavit of Documents three weeks following the opening of the defendant’s physical locations; and
(c) when plaintiff’s counsel confirmed that both of the defendant’s locations were open and operating, on the basis that requiring someone to attend the office would risk spreading COVID-19, that the CEO lived with a high-risk individual, and in light of these two factors, no Affidavit of Documents would be forthcoming until the emergency in Ontario was over.
[5] The defendant is an essential business and has continued operating throughout the COVID-19 emergency. The Responding Motion Record outlines the laudable steps the defendant has taken to ensure its employees are protected at its two locations: the warehouse, which houses the head office, and the production plant.
[6] However, nothing in the material persuades me that arrangements cannot safely be made for the CEO to attend at either location to review files and gather documentation. With respect to the warehouse, only three employees have authorized access. It should be a relatively simple exercise to ensure these three authorized employees are advised in advance of the date and time the CEO will attend, with instructions to maintain their distance.
[7] The production plant is described as follows:
The production facility operates 24 hours a day, seven days a week. At the production facility, approximately 100 shift workers work on a constantly rotating basis to produce polyethylene film and bags. The production facility is an enclosed space, and workers work in relatively close proximity to one another.
[8] While distanced access to the production plant may be more challenging, I query whether employment documentation of great significance would be stored anywhere but at the company’s head office, which should render the visit to the production plant of short duration and therefore easily arranged.
[9] These are challenging times, and we are all adapting to our new normal. The defendant is a shining example of this. If the defendant can ensure the safety of 103 employees while remaining operational over the last four months, it can facilitate the attendance of one individual to obtain documentation. While access to our courts has been circumscribed, the wheels of justice have not ground to a halt. Litigation is not “on hold,” and litigants are expected to move their matters forward, ideally in the spirit of cooperation.
[10] Justice Pentney of the Federal Court has effectively captured the current zeitgeist [1]:
The simple reality is that until the risks associated with the pandemic diminish and public health restrictions are lifted, it is necessary to adapt to the new reality. Access to justice is simply too important to wait. It is also a “public good,” which must be considered in light of the interests of the litigants to the matter, other litigants waiting for their cases to be heard, and the wider public who also seek access to the courts.
[11] Exercising my discretion under s. 2 of Regulation 73/20, the plaintiff’s motion is granted. Having reviewed the costs outlines of both parties, costs are awarded to the plaintiff in the all-inclusive sum of $1,750.
[12] Draft order as provided shall issue.
A.A. Casullo, J. Date: July 14, 2020