Court File and Parties
COURT FILE NO.: CV-17-132697 DATE: 20210108 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: No one appearing for the Plaintiff M. Kanani, Counsel for the Defendant/Moving Party, Mercedes Benz (Thornhill)
HEARD: January 7, 2021
Endorsement
Introduction
[1] The defendant, Mercedes-Benz (Thornhill), originally brought 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] Pursuant to Rule 37.12.1(5), the plaintiff’s counsel wrote to the Registrar objecting to the motion being heard in writing and requesting an opportunity to make oral argument.
[3] The motion came before me on December 3, 2020. I directed the Registrar to schedule this matter for an oral hearing before me on Thursday, January 7, 2021 at 9:30 a.m.: Ibrahimi v. Mercedes Benz (Thornhill), 2020 ONSC 7521, at para. 5.
[4] The motion was scheduled and Zoom invitations were sent to counsel. Counsel for the plaintiff did not appear at the hearing, and filed no material in support of his position.
Analysis
Rule 37.14
[5] 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.
[6] The defendant takes the position that it was not served with any notice for the motion returnable on January 23, 2020.
[7] 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.
[8] 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 the defendant’s copy of 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.
[9] 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”.
[10] 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.
[11] 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.
[12] 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.
[13] 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”. The original typed date on the Order was Wednesday, January 22, 2020, but this date was crossed out (not by Boswell J.) and changed to Thursday, January 23, 2020.
[14] 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.
[15] 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.
[16] 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.
[17] In the February 4, 2020 fax, counsel for the plaintiff demanded payment of the costs ordered.
[18] On February 5, 2020, counsel for the defendant emailed counsel for the plaintiff, advising that counsel for the defendants had no notice that the motion would be heard on January 23, 2020.
[19] On February 6, 2020, counsel for the defendant wrote to counsel for the plaintiff requesting that counsel for the plaintiff consent to the varying of the January 23, 2020 Order to remove the costs portion of that Order.
[20] On February 10, 2020, counsel for the defendant brought this motion to set aside the costs Order of Boswell J. While counsel moved promptly, the scheduling of this motion was delayed for reasons outside of the control of counsel for the defendant, including the advent of the COVID-19 pandemic and the closure of the courts, and counsel for the plaintiff’s resistance to the scheduling of the motion.
[21] As indicated above, counsel for the plaintiff requested an opportunity to make oral argument in response to the plaintiff’s motion, as he was entitled to do pursuant to Rule 37.12.1(5). While I scheduled the oral hearing, I noted that counsel for the defendant had presented a strong prima facie case that the motion on January 23, 2020 had proceeded without proper notice to the defendant, and I made the following observation at para. 19 of my Reasons:
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.
[22] As indicated, counsel for the plaintiff did not appear at today’s hearing and has provided no explanation for the discrepancies identified above.
[23] Based on the record before me, it is clear that counsel for the plaintiff brought the motion before Boswell J. on January 23, 2020 without proper notice to the defendant that the motion would proceed on that date. Counsel for the plaintiff knew that counsel for the defendant opposed his claim for costs, but made costs submissions to the court without advising the court that costs were opposed and that the motion was proceeding without proper notice to the defendant.
[24] The defendant was unfairly denied an opportunity to put forward its position on the costs claimed by the plaintiff. In a nutshell, it is the defendant’s position that any delays in the action were caused by the plaintiff. The correspondence set out in the defendant’s Motion Record supports the defendant’s position.
[25] In the absence of any explanation from counsel for the plaintiff, his conduct on January 23, 2020 amounts to sharp practice. This alone disentitles the plaintiff to any award of costs with respect to that motion. Accordingly, the Order of Boswell J. dated January 23, 2020 is varied by setting aside para. 2 of that Order in its entirety and substituting the following paragraph:
- There will be no order as to costs.
Motion To Dismiss the Action or Establish a Timetable
[26] Apart from the motion to amend the Statement of Claim nearly one year ago, this action has languished since it was originally commenced in September 2017. The defendant takes the position that the action should be dismissed for delay.
[27] While there have been several delays on the part of the plaintiff in moving this matter along, it is, in my view, preferable to impose a timetable on the plaintiff to ensure that the action proceeds in a timely manner.
[28] Accordingly, I adopt the following timetable proposed by the defendant’s counsel:
| Remaining steps to be completed: | By Which Party: | Date to be completed by: |
|---|---|---|
| Service of the Claim on Ms. Brouwer or noting in default of Ms. Brouwer or amending Statement of Claim to remove Ms. Brouwer | Plaintiff | February 15, 2021 |
| Affidavit of Documents and Schedule “A” productions served | Plaintiff | February 15, 2021 |
| Schedule Examinations for Discovery | Plaintiff | February 15, 2021 |
| Completed Examinations for Discovery | Plaintiff and Defendant | May 28, 2021 |
| Answer Undertakings | Plaintiff and Defendant | July 30, 2021 |
| Schedule Mediation, if required | Plaintiff | August 15, 2021 |
| Complete Mediation | Plaintiff and Defendant | November 31, 2021 |
| Set Matter Down for Trial | Plaintiff | December 30, 2021 |
Costs
[29] Finally, counsel for the defendant seeks costs for this motion. She argues that costs should be awarded on a substantial indemnity basis in the amount of $3,593.00
[30] Counsel for the defendant also argues that these costs should be paid personally by counsel for the plaintiff. Counsel for the plaintiff precipitated the need for this Rule 37.14 motion by bringing the January 23, 2020 motion without notice, and in failing to agree to have it set aside once the error was brought to his attention. I have already described such conduct as sharp practice.
[31] Counsel for the plaintiff has also added to the time and cost of this motion by requesting an opportunity to make oral submission, but not appearing on the scheduled hearing date for those submissions.
[32] Counsel for the defendant also argues that the draft motion that was given to Boswell J. contained inaccuracies and misrepresentations about the position taken be the defendant. These inaccuracies exacerbate the harm done by the failure to give proper notice.
[33] Given the inappropriate conduct of counsel for the plaintiff in proceeding on January 23, 2020 without notice to the defendant, and given his failure to appear for today’s hearing that was scheduled at his request, I agree that this is an appropriate case in which to order costs on a substantial indemnity basis against the lawyer personally. The costs of this motion were incurred without reasonable cause as a result of the lawyer’s inappropriate conduct. He has provided no explanation for this conduct.
[34] In my view, the motion material prepared by counsel for the defendant – motion record and factum - was appropriate for this motion. They sought to proceed inexpensively and expeditiously by asking that the motion be heard in writing. The costs claimed are therefore reasonable for a motion of this nature.
[35] As required by Rule 37.07 of the Rules of Civil Procedure, the lawyer for the plaintiff was on notice that costs were being sought against him personally. This relief was expressly set out in the defendant’s Notice of Motion and Factum, and was referenced in para. 1(d) of my Reasons of December 3, 2020. Para. 19 of those Reasons also indicated that: “It is incumbent on counsel for the plaintiff to provide some explanation for these discrepancies”.
[36] As required by Rule 37.07(2), counsel for the plaintiff was given a reasonable opportunity to make representations to the Court. In fact, he was given two such opportunities. The first was in response to the motion in writing, the second was the opportunity to appear today and make oral submissions. He availed himself of neither.
Conclusion
[37] This Court Orders that the Order of Justice Boswell, dated January 23, 2020, be varied to remove the costs award at paragraph 2 of the Order, and that paragraph 2 shall read: “There will be no order as to costs”.
[38] This Court Orders that the parties shall adhere to the timetable attached at Schedule “A”, failing which a motion may be brought to dismiss the action.
[39] This Court Orders that Fariborz Jou, Counsel for the Plaintiff, pay costs personally to the Defendant, Mercedes Benz (Thornhill), in the amount of $3,500 within 30 days.
Justice R.E. Charney Date: January 8, 2021
Schedule “A”
| Remaining steps to be completed | By Which Party | Date to be completed by: |
|---|---|---|
| Service of the Claim on Ms. Brouwer or noting in default of Ms. Brouwer or amending Statement of Claim to remove Ms. Brouwer | Plaintiff | February 15, 2021 |
| Affidavit of Documents and Schedule “A” productions served | Plaintiff | February 15, 2021 |
| Schedule Examinations for Discovery | Plaintiff | February 15, 2021 |
| Completed Examinations for Discovery | Plaintiff and Defendant | May 28, 2021 |
| Answer Undertakings | Plaintiff and Defendant | July 30, 2021 |
| Schedule Mediation, if required | Plaintiff | August 15, 2021 |
| Complete Mediation | Plaintiff and Defendant | November 31, 2021 |
| Set Matter Down for Trial | Plaintiff | December 30, 2021 |