Court File and Parties
COURT FILE NO.: CV-18-00596146
MOTION HEARD: April 22, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hilborn, Plaintiff
AND:
The Corporation of the City of Mississauga, et al., Defendants
BEFORE: Master Josefo
COUNSEL: R. Levin, counsel for plaintiff, responding party, K. Zarcone-Beam, Student-At-Law (“SAL”), for defendant Sheila A. Edison, moving party
Endorsement of Master Josefo dated April 26, 2021
Issues:
[1] Does the defendant require leave of the court, pursuant to Rule 48.04(1), to bring its motion for refusals and to compel further examination of the plaintiff on questions ordered to be answered? If yes, was leave sought? If not sought, is that fatal to the defendant’s motion?
Overview of the Action/ What led to this Motion/Brief Chronology:
[2] On April 21, 2016, the plaintiff Ms. Hilborn was a passenger on a Mississauga transit bus. The bus and a car, driven by the defendant Ms. Edison, collided. The plaintiff claimed injuries as a result of that collision. On April 19, 2018 she sued for $100,000.00 in general damages, $50,000.00 in special damages, and for costs and interest. The sole defendant is Edison, as the municipal corporation was previously let out of the action.
[3] On November 28, 2018, the plaintiff was examined for discovery. On January 2, 2020, the plaintiff served and filed the trial record, thus setting the matter down. On October 7, 2020, the plaintiff delivered to the court the Certification Form to Set Pre-Trial and Trial Dates (“Form”). The Form was completed by Ms. I. Zamberg, the law clerk for the plaintiff’s lawyer, in conjunction with Mr. T. Asselin, the then counsel for the defendant. Mr. Asselin has since left the defendant’s law firm, with carriage of this matter transferred to Mr. W. Jesseau. Ms. Zarcone-Beam, the SAL who appeared on this motion (as Mr. Jesseau swore an affidavit) on November 18, 2020 confirmed to the plaintiff the intention of the defendant to bring this motion.
[4] The parties agree that undertakings, subject to any disagreement about what, specifically, was undertaken, must be answered. Mr. Levin correctly acknowledges that, per Rule 48.04(2), the plaintiff is not relieved from complying with undertakings. He further concedes, again, correctly, that the defendant may still bring a motion to compel answers to undertakings. Yet Mr. Levin asserts that, as Mr. Asselin consented to this action being placed on the trial list, pursuant to Rule 48.04(1), the defendant “shall not initiate or continue any motion or form of discovery without leave of the court”. He further asserted that, as leave was not sought, the motion for refusals ought not be entertained.
[5] Ms. Zarcone-Beam submitted that Mr. Asselin did not consent to the action being placed on the trial list. Rather, all he did was cooperate, as he was obliged to do, in the completion of the Form. It was also submitted that on page 2 of the Form, where the question posed is, “Does any party have any issues requiring motions before trial?”, “yes” was circled as the response, with this specification added: “Discovery related motion”. Accordingly, defendant submits that leave of the Court is not required to be sought and granted before the defendant’s refusals motion may be heard.
Progress of this Motion:
[6] The defendant’s motion was originally before me on April 6, 2021. What was originally thought to be a fairly straight-forward undertakings and refusals motion became somewhat more complex, given the leave issue. As insufficient time was available that day, and as the parties had not submitted any case-law on the question of leave, the motion was adjourned to my April 22, 2021 list.
[7] On April 22nd, only one hour was set aside. That allowed sufficient time for only the leave issue to be thoroughly aired. Yet no time remained for the actual refused questions (I accept, subject to the matter being subsequently raised, if necessary, by defendant, that Mr. Levin is continuing to address the comparatively few substantive remaining undertakings) or for argument as to whether the plaintiff had to re-attend for further discovery. As I was, after hearing the well-argued submissions from both sides, unsure of the result on the leave issue, the refused questions and remaining issues were deferred to be addressed if subsequently required. The same deferral would equally apply to the question of costs.
Was Leave Required?
[8] I have considered the submissions on the law, juxtaposed with the April 1, 2021 affidavit of Ms. Zamberg. As is often the result, it is how the facts fit within the applicable law. In coming to my findings, I agree with Mr. Levin that Mr. Asselin did not swear a responding affidavit, even though this could have been done between the first and second hearing day. I further agree that Ms. Zamberg was not cross-examined on her affidavit. Thus, what she believes, as sworn in her affidavit, is not challenged, nor is it disputed.
[9] At paragraphs 10 and 11 of her affidavit Ms. Zamberg states as follows:
The Certification Form to set the Pre-Trial and Trial dates was sent to the court on October 7, 2020. Attached hereto and marked as Exhibit "E" to this my affidavit is a copy of the Certification Form for the Pre-Trial and Trial Dates, dated September 29, 2020.
I discussed the Certification Form with the opposing counsel, Mr. Asselin, and by emails dated October 5, 2020, he provided his consent to place this matter on a trial list. I copied counsel with my email to the Court dated October 7, 2020, by which the Certification Form was submitted. Attached hereto and marked as Exhibit "F" to this my affidavit are copies of the emails between Levin Barristers office and Troy Asselin, dated October 5, 2020 and the email forwarding the Certificate to Court, from Levin Barristers office dated October 7, 2020 [emphasis added].
[10] Does the evidence before me corroborate what Ms. Zamberg believes? All relevant emails between Mr. Asselin and Ms. Zamberg were sent on October 5, 2020. In the first one, at 2:24PM on October 5th, Ms. Zamberg simply requests that Mr. Asselin fills out “the defendant’s part [of the Form] so that we could send it back to court”. As noted above, Mr. Asselin, when completing his portion of the Form, added his response pertaining to the outstanding motion of the defendant to be addressed prior to trial.
[11] In hers of 4:29PM that same day, Ms. Zamberg writes:
Dear Mr. Asselin, in paragraph 7b will it be fair to say that you require 3-4 days for the trial, so that we could keep it as a 10-day trial? (If you put 5-6, for example, it will have to go to the long trial list, and To Be Spoken To Court appearance will have to be scheduled.) Also, could you please recommend trial dates? We are open to any dates, starting April 1, 2021. Finally, it looks like the Jury Notice withdrawal was never filed, so we are good to proceed with the Jury trial.
[12] In his response at 4:30PM on October 5th, Mr. Asselin confirms that a jury notice was delivered, and further responds:
I am fine with 3-4 days. Yes, we are fine with the earliest trial date. Thanks.
[13] As I discuss the law juxtaposed with the facts, it is helpful to reference the relevant Rules, as follows:
Rule 48.04(1):
Any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court [emphasis added].
Rule 48.06(1):
A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other then the party who set the action down is filed earlier, on the date of filing.
[14] In my view, the facts of this case are quite similar to the facts before Justice Stinson in Ananthamoorthy v. Ellison, 2013 ONSC 340. In that case, the defendants moved to compel plaintiff to attend a defence medical examination, as well as to answer undertakings and questions refused. That case, as does this one before me, involved an MVA. By the time of the motion before Justice Stinson, unlike in this present matter, the parties already had attended at a pre-trial conference, with the matter on the Toronto Long Trial list. With what Justice Stinson remarked as with “less than four weeks prior to the trial date” (paragraph eight of his decision), the defendants brought their motion. Justice Stinson addressed the preliminary objection of the plaintiffs, that leave was not sought to bring the motion, as follows:
[10] Plaintiffs’ counsel raised a preliminary objection that the defendants had not sought leave to bring this motion as required by rule 48.04(1). Plaintiffs relied, among other authorities, on Paranitharan v. Alex Irvine Motors Ltd., 2011 ONSC 3104, and the case cited therein, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (G.D.), as authority for the proposition that a party who consents to an action being set down for trial must show a substantial or unexpected change of circumstances for leave to be granted.
[11] Plaintiffs' counsel also, quite properly, brought to my attention the decision of Justice Perell in Fromm v. Rajani, [2009] O.J. No. 3671. At para. 7 of that case, Justice Perell responded to a similar technical objection regarding a late motion by defendants for a further defence medical as follows:
In my opinion, however, rule 48.04(1) does not apply to the circumstances of the case at bar. The Defendants did not set the action down for trial, and I do not regard the fact that defence counsel completed the Certification Form as a part of the pre-trial conference process as their consenting to the action being placed on a trial list, which, of course, had already occurred. [emphasis added].
[12] I agree with Justice Perell. The regime for setting actions down for trial today is different than it was in 1992 when Hill v. Ortho was decided. No longer do parties file Certificates of Readiness nor are they, as they once were, deemed to have consented to an action being set down for trial. Now any party may set an action down for trial under rule 48.02(1) by serving and filing a trial record. Thereafter, the case is placed on a trial list after 60 days. Pursuant to rule 48.06(1), the 60 days may be abridged if every other party consents. The language in rule 48.04(1) that imposes a requirement for leave to bring a motion upon any party who has consented to the action being placed on a trial list is thus a reference to consent under rule 48.06(1). It should not be confused with the Toronto Region Certification Form to set pre-trial and trial dates. In the present case, only the plaintiffs set the action down. The defendants did not consent under rule 48.06(1) to placing the action on a trial list. They therefore do not require leave under rule 48.04(1) to bring this motion.
[13] The preliminary objection is therefore dismissed [emphasis added].
[15] In this matter, I find that Ms. Zamberg genuinely believed, as she deposed at paragraph 11 of her affidavit, that Mr. Asselin “provided his consent to place this matter on the trial list”. Yet the exchange of emails between these individuals simply does not bear that belief out. From the evidence, I find that all that Mr. Asselin was doing, was cooperating, as he was obliged to do, in completing the requisite Form with plaintiff. He had not consented to place the matter on the trial list (which, in any event, had already been done by the plaintiff, unilaterally, on January 2, 2020). Accordingly, Ms. Zamberg was honest, yet mistaken, when she assumed otherwise.
[16] I agree with the conclusion in Ananthamoorthy, and in the Fromm decision of Justice Perell cited therein. Simply completing the Form is not the same as consenting to an action being placed on the trial list. As was noted in Fromm, and is the same in this within matter, that had in any event already happened.
[17] In my view, conflating the completion of the requisite Form with consenting to set the matter down, may well lead to unintended consequences, including counsel not agreeing to complete the Form if it meant giving up the right to pursue a motion absent first seeking and obtaining leave of the Court. In the above-noted Ananthamoorthy decision, moreover, the facts indicate that the parties were much further along than are the parties in this matter before me. In this matter, the parties have not yet even had a pre-trial, let alone being less than a month away from an actual trial date. To require leave to be sought in such circumstances seems to me to be even more questionable than it was in Ananthamoorthy.
[18] I further observe that, on the Form, defendant flagged the “discovery related motion” as needing to occur before trial. That was a clear signal to the plaintiff. Again, Mr. Asselin had never consented to put the matter on the trial list, as Ms. Zamberg erroneously believed. All he did on October 5, 2020 was complete the Form. What he added to the Form was a clear indicator that the defendant was not ready for trial.
[19] The decisions relied on by Mr. Levin are, I find, less relevant to the question of whether the defendant in this case, who did not set the matter down and who did not consent to it being set down, needs leave to pursue its refusals motion. Hamilton v. Ontario (Transportation), 2013 ONSC 4536, involved the plaintiffs setting the action down for trial, yet subsequently bringing their motion for refusals and advisements. Master Haberman dismissed the plaintiffs’ motion. As summarized by RSJ Firestone in his decision denying the appeal of that dismissal:
[paragraph 4] …the Master dismissed the plaintiffs' motion pertaining to refusals and advisements on the basis that the action had been set down for trial and pursuant to Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("the Rules"), "leave" was required to initiate such a motion. The Master indicated in her reasons that leave was neither sought nor addressed in the supporting affidavit.
[20] Justice Firestone found that decision to be without error. He concluded as follows:
[11] There are conflicting decisions from this Court regarding whether leave is required to bring or initiate a motion for refusals (which includes a question taken under advisement) once a party has set an action down for trial. Master Haberman, in my view, followed the correct line of authority in arriving at her disposition on the motion.
[21] The RSJ reviewed the relevant case-law, confirming that undertakings and refusals are treated differently, as was found by Master Graham in Jetport Inc. v. Global Aerospace Underwriting Managers 2013, ONSC 2740 because “undertakings are obligations that pre-date the setting down of the action and refusals are not”. The RSJ concluded that, as the plaintiff had set the matter down, and had not sought leave to bring its motion, the aspect of its motion as pertaining to refusals was properly dismissed.
[22] Again, however, that is factually quite different from this within case. If, in this matter, the defendant had set the matter down, or had consented in that regard, then I agree, leave would have to be sought before that same party could bring a motion for which leave would be required (putting aside the exceptions to seeking leave listed in Rule 48.04(2)). Absent leave being sought, the motion, as pertaining to refusals, would be properly dismissed. Yet these are not the facts before me.
[23] Similarly, the decision of Belanger v. Shaw, 2021 ONSC 153 involved whether leave is required when counsel have agreed on a trial date. I agree that, if counsel had agreed, then leave is required. I further agree with Mr. Levin that to obtain leave one must meet the requisite challenging test (“a substantial or unexpected change of circumstances”) for leave to be granted. Yet again, such are not the facts as exist in this present matter. In this matter, to reiterate my findings, counsel had not agreed to a trial date. Indeed, Mr. Asselin specifically flagged his pending motion on the Form arising out of the plaintiff’s discovery, which motion had to be addressed before trial.
[24] Accordingly, in this case, the defendant is not required to seek leave to bring its motion for refusals. Having answered that question, it follows that I need not address the subsequent questions I list at the outset of these reasons. It is, however, appropriate to generally observe that the defendants have not moved with alacrity in pursuing the questions refused. The discovery, after all, was held on November 28, 2018. Nearly two years later, the defendant decided to pursue refusals (and undertakings). This was flagged by Mr. Asselin in October 2020 on the Form. On November 18, 2020 Ms. Zarcone-Beam gave the plaintiff notice of the intention to bring this within motion. It is too bad that the refusals were not pursued earlier, if such were deemed to be important.
Next Steps:
[25] When the motion reconvenes, the parties can address the specific refusals, any undertakings then still outstanding, and if the plaintiff must return to be examined on these further answers. The parties can also address costs. The parties should, in advance of the next hearing day, exchange Cost Outlines, if not already done.
[26] To schedule a reconvene, the parties should jointly consider their availability for dates in June or July. Counsel should then contact ATC Mr. Magnante, who can inform them of my availability on one of my then pending Regular Motion days in those upcoming months.
[27] A final point: I urge perspective. The claim, now well within the Simplified Procedure monetary limit, is a limited one as pertains to heads of damage. Liability does not seem to be an issue. Instead of arguing over refusals, the parties may be better off expending resources trying to resolve this older matter.
Master J. Josefo