Court File and Parties

COURT FILE NO.: CV-17-132697

DATE: 20201203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Behxhet (Bahieh) Ibrahimi, Plaintiff

AND:

Mercedes Benz (Thornhill) and Kim-Marie Brouwer, Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Fariborz H. Jou, Counsel for the Plaintiff

Martina Sagermann, Counsel for the Defendant/Moving Party, Mercedes Benz (Thornhill)

HEARD: In-Writing - December 3, 2020

Endorsement

[1] The defendant, Mercedes-Benz (Thornhill), brings this motion in writing for a variety of relief, including:

(a) An Order setting aside the costs order of Boswell J. dated January 23, 2020 pursuant to Rules 37.14 and 59.06 of the Rules of Civil Procedure.

(b) An Order dismissing the plaintiff’s action for delay.

(c) An Order establishing a Timetable for the litigation.

(d) That costs of this motion be paid personally by counsel for the plaintiff.

[2] This action arises from a slip and fall incident that occurred on September 28, 2015 at the Mercedes Benz dealership in Thornhill, Ontario. The Statement of Claim was issued on September 20, 2017.

[3] Pursuant to Rule 37.12.1(5), the plaintiff’s counsel has written to the Registrar taking the position that:

(a) The motion should not be heard because the defendant has not paid the $1,500 costs ordered by Boswell J. on January 23, 2020,

(b) The motion is “groundless, frivolous and vexatious" and should be “recalled from the Judge’s Chambers”.

(c) If the motion is to be heard, the plaintiff objects to the having this motion heard in writing and requests an opportunity to make oral argument.

[4] Pursuant to Rule 37.12.1(6), a responding party on an opposed motion in writing is entitled to request to make oral argument, and the moving party “may either attend the hearing and make oral argument or not attend and rely on the party’s motion record and factum.”

[5] Accordingly, I will direct the Registrar to schedule this matter for an oral hearing before me on Thursday, January 7, 2021 at 9:30 a.m.

[6] Having said that, I do wish to make several observations regarding the motion.

[7] Rule 37.14 of the Rules of Civil Procedure authorizes a court to set aside an order if the defendant did not receive notice or failed to appear at a motion “through accident, mistake or insufficient notice”. The Rule states:

37.14 (1) A party or other person who,

(a) is affected by an order obtained without notice

(b) fails to appear on a motion through accident, mistake or insufficient notice; …

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[8] The defendant takes the position that it was not served with any notice for the motion returnable on January 23, 2020.

[9] The affidavit in support of the defendant’s motion indicates that on January 16, 2020, the defendant was served with a Motion Record by email for a motion to amend the Statement of Claim. The Notice of Motion states that the motion is returnable on January 22, 2020. No draft Order was attached to this motion record. On January 17, 2020, counsel for the defendant responded to the email, asking why motion dates were not canvassed with her first. She received no response.

[10] On January 20, 2020, counsel for the defendant contacted the Newmarket Courthouse to request the status of the January 22, 2020 motion date. She was advised by email from the Assistant Trial Coordinator that “No materials have been filed on this motion, neither have we received any confirmation form, as a result I have removed this matter from the list”.

[11] Following receipt of the Assistant Trial Coordinator’s email, counsel for the defendant did receive a Plaintiff’s Confirmation Form, confirming that the motion would proceed on January 22, 2020.

[12] Counsel for the defendant emailed counsel for the plaintiff on January 20, 2020, attaching the Assistant Trial Coordinator’s email, to advise that the motion was not scheduled. She expressly stated: “my client opposes your request for costs against us”. She asked counsel for the plaintiff to canvass new motion dates with her.

[13] On January 22, 2020, counsel for the defendant sent an articling student to the Newmarket Courthouse to ensure that the motion was not on the motion list. The articling student confirmed that the motion was not listed.

[14] On February 4, 2020, counsel for the defendant received a fax from counsel for the plaintiff that attached an Order of Boswell J. dated January 23, 2020. The Order granted the plaintiff leave to amend the Statement of Claim. In addition, the Order found that the “Defendants conduct created unreasonable delay to the detriment of the Plaintiff” and ordered costs against the defendant in the amount of $1,500. The Order also states that the Court was “advised that the Plaintiff and Defendants agreed to this Order” and that “the Defendants take no position on this motion”. The original typed Order indicated that the defendant Mercedes Benz (Thornhill) would pay costs of $7,000, but this was struck out by Boswell J. and changed to “$1,500”. Similarly, the original typed date on the Order was Wednesday, January 22, 2020, but this date was crossed out and changed to Thursday, January 23, 2020.

[15] Counsel for the defendant ordered a transcript of the January 23, 2020 proceeding. The transcript indicates that the plaintiff’s motion was not on the motions list, but was dealt with as an “add on” at the end of the day.

[16] The court did not ask about the change in the motion date or whether the defendant had notice of the return of the motion on January 23, 2020.

[17] The court did ask about the claim for costs, and the plaintiff made substantial submissions on costs, setting out its position on how the defendant had delayed the proceeding and unreasonably refused to consent to the motion to amend. As indicated, Boswell J. awarded costs against the defendant in the amount of $1,500.

[18] On February 10, 2020, counsel for the plaintiff brought this motion to set aside the costs Order of Boswell J. The scheduling of this motion has been delayed for several reasons, including the advent of the COVID-19 pandemic and the closure of the courts. Counsel for the plaintiff has also resisted the scheduling of this motion.

[19] Since the plaintiff has requested an opportunity to make oral argument, and has declined to file any other response to this motion, the merits of the defendant’s Rule 37.14 motion are not yet before me. It is clear, however, that January 23 is not the same date as January 22, and that, contrary to the draft order presented to Boswell J., the defendant did not agree to the order as presented. It is incumbent on counsel for the plaintiff to provide some explanation for these discrepancies.

[20] The plaintiff’s position that the defendant cannot bring a Rule 37.14 motion to challenge the costs order until it has paid those costs is entirely without merit. The plaintiff’s motion record presents a strong prima facie case that the motion on January 23, 2020 proceeded without proper notice to the defendant, and that the defendant was denied a fair opportunity to respond to the plaintiff’s costs submissions.

[21] Accordingly, this motion is adjourned to Thursday, January 7, 2021 at 9:30 a.m. for oral submissions.

Justice R.E. Charney

Date: December 3, 2020