Court File Information
TORONTO COURT FILE NO.: CV-19-629303 OSHAWA COURT FILE NO.: CV-20-000855 OSHAWA COURT FILE NO.: CV-19-002228 DATE: 30032021
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Toronto Court File No.: CV-19-629303
DAWN MCINTOSH and SCOTT MCINTOSH Plaintiffs
– and –
JASON BOCCINFUSO and HOMELIFE SUPERIOR REALTY INC. BROKERAGE Defendants
Oshawa Court File No.: CV-20-000855
JASON BOCCINFUSO and HOMELIFE SUPERIOR REALTY INC. BROKERAGE Plaintiffs
– and –
DAWN MCINTOSH and SCOTT MCINTOSH Defendants
Oshawa Court File No.: CV-19-002228
ALEXANDRA GUNN and GLEN TURPIN Plaintiffs
– and –
DAWN MCINTOSH and SCOTT MCINTOSH Defendants
Counsel: Brian N. Radnoff and Michael J. Brzezinski, for Dawn and Scott McIntosh as Plaintiffs in the 2019 Toronto Action, and as Defendants in the 2019 Oshawa Action and as Defendants in the 2020 Oshawa Action David Fogel, for Jason Boccinfuso and Homelife Superior Realty Inc. as Defendants in the 2019 Toronto Action Paul D. Mack, for Homelife Superior Realty Inc. as Plaintiff in the 2020 Oshawa Action Steven Nicoletta, for Charlotte M. Janssen and Janssen Law Professional Corporation, as Defendants in the 2020 Oshawa Action
HEARD: January 25, 2021
REASONS FOR DECISION
M.L. EDWARDS, RSJ.:
Overview
[1] There was a time when procedural motions served a legitimate purpose in our judicial system. The clarity obtained from a pleadings motion; the unravelling of an undertaking and/or refusals motion; the need for particulars; the significance of the location for an action – these and many other motions provided younger counsel an opportunity to “cut their teeth” in front of a judge or master. Put in the context that statistically well in excess of 90% of all civil actions initiated in the court system ultimately will settle prior to trial it is reasonable to question what material impact the outcome of most procedural motions have on the final outcome.
[2] The motion before this court is just one of those types of motions. These Reasons will explain why litigants, counsel and the court, must rethink the approach to what is in essence a procedural type motion that in no way advances the litigation to its logical conclusion. These Reasons will also explain why counsel must demonstrate that they have worked cooperatively in an effort to avoid the type of procedural motion presently before this court. Sadly, despite the admonition of two other judges who had previously dealt with this matter, the fact that these motions went ahead demonstrates a lack of cooperation on the part of the litigants and or their counsel.
The Procedural Background to these Motions
[3] In the action bearing court file number CV-19-629303, Meyers J. as the triage judge in Toronto dealt with the Plaintiffs’ request to schedule a short opposed motion, the purpose of which was to stay an action which had not been brought in the Toronto Region, but rather in the Central East Region in Oshawa.
[4] Having considered the plaintiffs’ request, Meyers J. as the triage judge released a handwritten endorsement directing that the parties attend a case conference before Sanfilippo J., and further endorsed as follows:
What benefit is there to the clients in funding a battle over the heading “Counterclaim” and “Statement of Claim” on a piece of paper. Counsel owe a duty to cooperate on scheduling and process matters to ensure all parties a fair process.
[5] The matter then came before Sanfilippo J. who released an Endorsement dated July 10, 2020, which at para. 11 reflected what had occurred at the case conference on July 9, 2020. Sanfilippo J. stated:
The case conference focused on the most cost efficient, effective way to expeditiously advance these matters to ensure a just and fair process, and a just and fair hearing to all. After discussion on issues of consolidation, case management, trial management and efficiencies to be derived in advancing the actions together in the same region, I adjourned the case conference to provide the parties with an opportunity to consider the issues raised, to take instructions and to allow for collaboration in the most efficient way to advance these proceedings.
[6] In completing his Endorsement, Sanfilippo J. concluded:
I encourage the parties to collaborate on a process that will achieve the objectives set out in Rule 1.04(1): “the most expeditious and least expensive determination of every civil proceeding on its merits” if the parties agree to terms of a consent order, they may deliver it to me in advance of the case conference.
[7] Unfortunately, as these Reasons will go on to reveal, the admonition of Sanfilippo J. reflected in his Reasons of July 10, 2020 clearly were not followed. The matter came back before Sanfilippo J. on July 15, 2020, and an Endorsement was released on July 16, 2020. The operative part of his Reasons required that the McIntosh motion had to be heard in Oshawa, and thus Sanfilippo J declined to schedule the motion for hearing in Toronto. In his conclusion, Sanfilippo J. left the parties with the following admonition at para. 24:
I encourage the parties to argue less about whether their disputes are adjudicated in Oshawa or Toronto, whether the form of pleading is as a stand alone claim or a counterclaim, and which party started their action first and who went second, and to work collaboratively toward the objective of securing the process that will provide the just, most expeditious and least expensive determination of this dispute on its merits. I encourage them to assess critically whether these objectives can be met through multiple proceedings in two regions involving a dispute of this monetary magnitude. As the Supreme Court stated in Hryniak v. Mauldin, 2014 SCC 7 at para. 28: “The principle goal remains the same: a fair process that results in a just adjudication of disputes”.
[8] Regrettably one or all of the parties and/or their counsel seem to have paid absolutely no heed to the admonitions provided by both Meyers J. and Sanfilippo J. as set forth in the extracts from the Reasons set forth above. The motions, therefore, proceeded before me on January 25, 2021, and I now review the relevant facts and the various actions that are presently before the court.
The Facts
[9] The genesis for all of the various actions arises out of an agreement of purchase and sale (the APS), in which Alexandra Gunn and Glenn Turpin who I will collectively refer to as (Gunn), sold a property located in Clarington, Ontario (the Clarington property), to Scott and Dawn McIntosh who I will collectively refer to as (McIntosh). The consideration for the sale of the property was $1,400,000.
[10] Prior to the closing of the real estate transaction, McIntosh brought an application in Oshawa against Gunn on July 18, 2019, under court file number 2166/19.(McIntosh #1) At the same time, Gunn brought a motion (Gunn#1) against McIntosh seeking a certificate of pending litigation with respect to the property, as well as an interim injunction to protect them from being removed from the property. Those motions were heard on August 2, 2019 by C.M. Smith J., who dismissed the McIntosh application and granted relief to Gunn.
[11] Subsequent to the dismissal of the McIntosh application on August 2, 2019, the agreement of purchase and sale was completed on August 16, 2019. Despite the completion of the APS, there have been, by my count, five matters issued either in Oshawa or Toronto. Those matters are summarized as follows:
a. on July 18, 2019, McIntosh sues Gunn in the 2019 Oshawa application.
b. on July 26, 2019, Gunn sues McIntosh in the 2019 Oshawa action.
c. on October 17, 2019, McIntosh sues the real estate agents associated with the APS in the 2019 Toronto action.
d. on June 9, 2020, Rapid Connex Inc. (a corporation controlled by the McIntosh) commenced an application against Gunn in Oshawa bearing court file number 1036/20; and
e. on May 1, 2020, Homelife Realty Inc. (the real estate agents) sued McIntosh and the real estate lawyers associated with the APS (Janssen) for payment of the commission with respect to the sale of the Clarington property.
[12] In the Toronto action where McIntosh has sued Homelife, Homelife is represented by Mr. Fogel who is instructed by Homelife’s professional liability insurer. In the Homelife action in Oshawa where Homelife is seeking payment of the unpaid commission, Homelife is represented by Mr. Mack.
The McIntosh Motion
[13] The McIntosh motion (which was originally brought in Toronto and was the subject matter of the triage Endorsement of Meyers J. and the Endorsements of Sanfilippo J.), seeks an order staying or dismissing the Homelife action in Oshawa as an abuse of process. McIntosh asserts that the Homelife action should have been brought as a counterclaim in the McIntosh action brought by the McIntosh’s in the 2019 Toronto action against Homelife.
The Homelife Action
[14] Homelife brings a motion seeking an order transferring the Toronto action to Oshawa, and order that after the action has been transferred to Oshawa the various actions referenced above should be tried together with common discoveries, a common pre-trial and either consolidated or heard one after the other as the trial judge directs.
The Position of McIntosh
[15] While acknowledging that the facts and allegations in the Oshawa action arise out of the same real estate transaction and the same realtor/vendor relationship which is at issue in the Toronto action, McIntosh argues that the Oshawa action should have been brought as a counterclaim in the Toronto action. Underlying their argument in this regard, McIntosh asserts that there was no legitimate reason for Homelife to start a separate action other than a tactical manoeuvre to bolster Homelife’s position that the litigation should be dealt with in Oshawa. As such it is argued that the Oshawa action is an abuse of process.
[16] As it relates to the transfer motion brought by Homelife, McIntosh argues that their stay motion should be dealt with prior to the transfer motion being considered because to do otherwise the court would be rewarding Homelife for its abuse of process. But for the fact that the claims asserted by Homelife in the Oshawa action were not pursued by way of a counterclaim in the Toronto action, McIntosh argues that Homelife would not have to seek leave to have the Toronto action transferred to Oshawa.
[17] In support of the position asserted on behalf of McIntosh, Mr. Radnoff relies on in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, for the proposition that the commencement of a new action that repeats substantially the same allegations against the parties in an already existing action, creates an unnecessary multiplicity of proceedings and is an abuse of process and circumvention of the rules. Mr. Radnoff also relies on Wood v. Farr Ford Ltd., 2008 CanLII 53848 where Quinn J. ordered the discontinuance of a subsequent action commenced in a different court by parties who were already defendants in an existing action with substantially the same facts and issues.
[18] In response to the Homelife transfer motion transferring the McIntosh action from Toronto to Oshawa, Mr. Radnoff argues that despite the fact virtually all of the witnesses who might be called at trial reside in the Durham area, and despite the fact the subject-matter of the action, i.e. the Clarington property, is in the Durham region, that Toronto is in fact the appropriate forum for the McIntosh action. In that regard, it is asserted that McIntosh is entitled to name the place of trial in their statement of claim; that most of the lawyers involved have offices in Toronto; and that the trial of the McIntosh action would occur sooner than any trial might occur in Oshawa. When questioned as to the basis for his argument concerning the timing of a trial in Toronto versus the timing of a trial in Oshawa, Mr. Radnoff simply asserts that there are more judges in Toronto and therefore it follows that any trial would be heard more expeditiously than a trial in Oshawa.
The Position of Homelife
[19] In dealing with Homelife’s position, while Homelife is separately represented with respect to the defence of the negligence claim brought by McIntosh and its claim for unpaid commission on the sale of the property, both Mr. Fogel and Mr. Mack agree that the appropriate forum for the disposition of both claims involving Homelife is Oshawa.
[20] In relation to the question of whether Homelife was required to pursue its claim for the unpaid commission by way of a counterclaim in the claim brought by McIntosh in Toronto, counsel argue that Rule 27.01 is permissive and not mandatory. Given that Homelife is both a defendant and a plaintiff represented by different counsel, it is argued that to require Homelife to pursue its claim as a counterclaim in the action in which it is named as a defendant could create problems with the pleading . The conduct of the defence and a claim require separate counsel.
[21] Dealing specifically with the motion to transfer the McIntosh Toronto action to Oshawa, Homelife asserts that there are a number of factors which favour the transferring of the Toronto action to Oshawa, which include the following:
a. the location of the Clarington property.
b. where the damages arose.
c. the physical location of the parties; and
d. most of the witnesses are all located in Oshawa.
[22] In addition, Homelife notes the obvious, and that is the fact that there is already an action in Oshawa in which Gunn is suing McIntosh for damages arising out of the same transaction involving the APS.
[23] As it relates to the McIntosh action in Toronto, counsel for Homelife again notes the obvious, and that is the fact that the only connection with Toronto is the fact that plaintiffs’ counsel has his office in Toronto, as well as the fact that potentially one of the witnesses and parties who may be called, Janssen Law, is also located in Toronto.
[24] As for the issue of consolidation or having the matters heard one after the other, Homelife argues that an order having all of the actions tried in Oshawa one after the other, will ensure the most expeditious means by which the various claims can be adjudicated and will avoid multiplicity of proceedings.
Analysis
[25] At the present time there are multiple actions that have been commenced in Oshawa all of which relate to the purchase and sale of the Clarington property located in the Oshawa area. Almost without exception all the witnesses who might be called in those actions are resident in the Oshawa area. The real estate agent and broker involved in the purchase of the property are located in the Oshawa area.
[26] There is the one Toronto action in which the vendors of the property (McIntosh) claim against Homelife and Boccinfuso alleging that they failed to fulfill their obligations and duties as real estate agents. Homelife could have counterclaimed against the McIntosh’s for its unpaid real estate commission. Instead Homlelife pursued a separate action against McIntosh and their real estate lawyer for payment of the real estate commission due on the sale of the property. McIntosh argues the action commenced by Homelife in Oshawa is an abuse of process and relies on Maynes in support of that proposition.
[27] In my view counsel’s reliance on Maynes is misguided. Maynes involved an attempt by one litigant to avoid the requirements of Rule 26.02 (c) of The Rules of Civil Procedure which requires that leave of the court be obtained to add a non-consenting party to a proceeding after pleadings have closed. The plaintiffs in Maynes had commenced a new action against parties already named as defendants in actions that had already been commenced, as well as for the purpose of naming additional defendants who were not parties to the existing action. As Weiler J.A. noted at para 38 of her reasons the plaintiffs assertions in the new action were inextricably linked with claims made in five other existing actions and that the plaintiffs should have sought leave under Rule 26 .02(c) to name an added party who was not consenting.
[28] While Maynes is factually distinguishable it is worth repeating what the Court of Appeal has previously said about the type of conduct demonstrated by Homelife’s pursuit of a separate action as opposed to proceeding by way of counterclaim as argued by McIntocsh. Many years ago in Ross v Scottish Union and Non Ins>Co. (1910) 1920 CanLII 437 (ON CA), 47 O.L.R. 308 at page 313 Magee JA stated that: “….a plaintiff need not join several existing causes of action,though he may do so. A defendant may,but need not,avail himself of a right of set off,nor need he always counterclaim,but may bring separate actions.”.
[29] While Ross may be considered dated jurisprudence it was more recently followed in Rosenthal v Fairwin Construction 1983 CarswellOnt 366 ,where White J., after referencing Ross, concluded that : “….I am not persuaded that the commencement of a separate action by Rosenthal against Fairwin when the claim could have been raised by counterclaim is an abuse of process and contrary to the rule against multiplicity of proceedings….”
[30] In the modern age in which we live this court can better control the possibility of an abuse of process where there is a multiplicity of proceedings by timely and much less expensive case management. Time consuming procedural motions like the one advanced by McIntosh do not move the litigation forward to resolution. Rather such motions consume untold legal costs and precious court resources.
[31] I do not accept the arguments advanced by Mr Radnoff that the Homelife action in Oshawa should have been advanced as a counterclaim to the McIntosh action in Toronto. Homelife certainly could have responded by way of a counterclaim. However, given the different interests of Homelife, evidenced by the fact Homelife is both a plaintiff and a defendant with separate counsel, it was entirely appropriate for Homelife to have proceeded in the manner that it did.
[32] The doctrine of abuse of process is intended to avoid a multiplicity of actions and to uphold the integrity of the administration of justice. Counsel for McIntosh relies on the doctrine of abuse of process to argue that Homelife should have pursued its claim against McIntosh for the unpaid real estate commission in the Toronto action. With respect where there were already existing actions in Oshawa all of which had at their core claims arising out of the purchase and sale of the Clarington property it was in my view an abuse of process for McIntosh to commence an action in Toronto against Homelife. While the plaintiff is entitled to name the place of trial in his or her statement of claim that right is not absolute. The court must have an overriding jurisdiction to intervene when it is clear that the location of an action will not further the interests of justice.
[33] Mr Radnoff argues that Toronto is best suited for the hearing of the McIntosh action against Homelife. In part he argues that Toronto has more judges than Oshawa and as such it must follow that Toronto will be in a better position to provide more timely justice than the court in Oshawa. There is no evidence before me that Toronto is in any better position to have the McIntosh claim against Homelife heard in a more timely fashion than might occur in Oshawa.
[34] As we hopefully will be coming out of the Covid pandemic in the not too distant future the Bench and the Bar will have learned many lessons that will stand everyone in a better position than we were before the pandemic. While there will never be a substitute for an in person hearing where an in-person hearing is available, we have all adapted to dealing with matters virtually. Experience has shown over the last year that all kinds of proceedings can be done virtually via Zoom or some such medium. Discoveries, pre-trials, motions and even trials are now routinely conducted via virtual means. The fact that some counsel in the multiplicity of proceedings involving the Clarington property may be in Toronto while the remaining counsel are from the Oshawa area should no longer be a determining factor in the location of an action or actions.
[35] In dealing with the motion to transfer the McIntosh action from Toronto to Oshawa this court is guided by the provisions of Rule 13.1.02 The application of the considerations mandated by this Rule leave me with no doubt that the McIntosh action should be moved to Oshawa. Apart from the fact some of the lawyers involved in the McIntosh action may have offices in Toronto there is little else that connects Toronto to the claims in the McIntosh action. As previously noted the Clarington property is located in the Oshawa region; almost all of the witnesses and the parties themselves are from the Oshawa area; the damages, if any, were suffered in the Oshawa area and there are already multiple proceedings in Oshawa dealing with the same subject matter. The McIntosh action shall therefore be transferred from Toronto to Oshawa.
[36] In order to bring some semblance of order to the various actions I intend to case manage all of the actions. I am ordering all counsel to confer amongst each other in order to arrive at a consensual timetable that will move these actions along either to a negotiated resolution or alternatively a trial. I do not intend to impose a timetable if counsel can agree amongst themselves on a timetable that accommodates their clients’ best interest and their own personal calendars. However, if counsel cannot agree I am directing that counsel submit their proposed timetable to me and I will resolve any timetabling disputes by conference call.
[37] In arriving at what I hope will be a mutually agreeable timetable counsel should reflect the following: a) a deadline for the exchange of affidavits of documents; b) a deadline for the completion of examinations for discoveries; a deadline for the exchange of experts reports (if any); d) a deadline for the completion of any interlocutory motions e.g. undertakings and refusals; e) any other timetabling deadlines counsel require. In completing the aforesaid timetabling agreement as well as an agreement that there shall be common discoveries and productions, counsel should work within the following constraints; a pre trial will be conducted by the court at a time convenient for the court and for counsel no later September 1,2022; provided the court is satisfied the parties are ready for trial then the trial of these actions will take place during the fall 2022 civil sittings.
[38] As for how the actions will be tried it is my view that as the case management judge ,with the assistance of counsel working within the general principles of Rule 1.04 (1) and (1.1), that the framework for how the trial will unfold can be agreed upon in advance of trial. Should that not be possible the person who will be in the best position to determine how the trial should proceed is the trial judge.
[39] For the reasons set forth above the McIntosh motion is dismissed. The McIntosh action shall be transferred to Oshawa. All of the actions in Oshawa that relate to the purchase and sale of the Clarington property shall be case managed by me. As for the costs of the motions, if counsel can not agree on costs, I will receive written submissions limited to two pages in length to be received no later than April 20,2021. If costs submissions are not received by April 20 then the court will assume that either costs have been resolved or the party not submitting costs submissions within that deadline does not intend to file submissions.
M.L. Edwards, RSJ
Released: March 30, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DAWN MCINTOSH and SCOTT MCINTOSH Plaintiffs
– and –
JASON BOCCINFUSO and HOMELIFE SUPERIOR REALTY INC. BROKERAGE Defendants
– and –
JASON BOCCINFUSO and HOMELIFE SUPERIOR REALTY INC. BROKERAGE Plaintiffs
– and –
DAWN MCINTOSH and SCOTT MCINTOSH Plaintiffs
– and –
ALEXANDRA GUNN and GLEN TURPIN Plaintiffs
– and –
DAWN MCINTOSH and SCOTT MCINTOSH Defendants
REASONS FOR DECISION
M.L. Edwards, RSJ
Released: March 30, 2021