COURT FILE NO.: 17-73661
DATE: 2021/01/27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MAUREEN HENRY, Applicant
-and-
GOOGLE CANADA, FACEBOOK, APPLE CANADA, BELL MOBILITY and FACEBOOK INC., Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: James Bunting and Anisah Hassan, for the Respondent/Moving Party, Google Canada
Maureen Henry, self-represented Applicant/Responding Party
No one appearing for the Respondents, Facebook, Apple Canada, Bell Mobility, and Facebook Inc.
HEARD: In writing
ENDORSEMENT
Introduction
[1] The respondent, Google Canada (“GCC”) [^1] brings this motion for an order (a) dismissing the application as against it, and (b) dismissing the applicant’s motion to add “Google LLC” and “Alphabet Inc.” (“the Proposed Respondents”) as respondents to the application. The relief sought also includes an order that “there shall be no costs of this motion or the Application.”
[2] The motion record consists of a notice of motion, a consent signed by Ms. Henry and by counsel for GCC and the Proposed Respondents, and a clean copy of a draft order. The motion record does not include a supporting affidavit.
[3] The motion record was filed with the court under cover of a letter dated December 4, 2020 from counsel for GCC and the Proposed Respondents (“the Letter”). Attached to the Letter is a copy of a handwritten endorsement in this matter, dated April 4, 2019. The endorsement reads as follows: “Application stayed pending a parallel application before an American Court[.] Returnable on 30 days notice[.] No costs.” A copy of that endorsement is not included in the motion record.
[4] In the Letter, GCC’s counsel asserts that the existing respondents to the application, other than GCC (“the Other Respondents”), will be unaffected by the order sought. There is, however, no evidence before the court to support that assertion.
[5] For the reasons set out below, the relief requested is not granted and GCC’s motion is adjourned.
Stay of Proceedings
[6] Pursuant to the April 2019 handwritten endorsement attached to the Letter, this application is stayed. The court’s jurisdiction to grant a stay is set out in s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That section provides that, “[a] court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.”
[7] There is minimal evidence before the court as to the circumstances that led to the stay of the application. In the Letter, GCC’s counsel says that the stay was ordered following a contested hearing of Ms. Henry’s motion to add the Proposed Respondents as parties to this application. GCC’s counsel says, “[b]oth that motion and the within application were stayed”. There is no evidence before the court that Ms. Henry’s motion was stayed. I would expect that there is an endorsement to that effect; if there is, a copy of that endorsement is not before the court.
[8] Before any order can be made with respect to either Ms. Henry’s motion or the application, an order must be made lifting the stay of Ms. Henry’s motion as well as the stay of the application. It is incumbent upon GCC to seek the appropriate relief, with the request for that relief supported by evidence.
[9] To that end, the record filed must include a copy of Ms. Henry’s notice of motion and of the notice of application. Without copies of that portion of the record in this proceeding, the court is not in a position to assess the appropriateness of the relief sought. Copies of Ms. Henry’s notice of motion and the originating process shall be filed as discreet documents, separately tabbed in the motion record. Those documents are not ‘evidence’; they are not to be attached as exhibits to an affidavit.
Parties Affected by the Order Sought
[10] Service of a notice of motion is addressed in r. 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It provides that, “[t]he notice of motion shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.” There is nothing in the grounds upon which GCC relies in their notice of motion to support a conclusion that GCC is not required to serve the Other Respondents with the materials on this motion.
[11] In the Letter, GCC’s counsel asserts that the Other Respondents would be unaffected by the relief sought on this motion. However, without a copy of Ms. Henry’s notice of motion, a copy of the application, and evidence in support of the assertion made, the court is not in a position to conclude that GCC is entitled to proceed with this motion without notice to the Other Respondents.
Motions in Writing Made Without Notice
[12] In their notice of motion, GCC relies on r. 37.12.1(1) as the basis upon which they are entitled to proceed with this motion in writing. In doing so, GCC overlooks the criteria set out in that subrule for proceeding with a motion in writing without notice. Subrule 37.12.1(1) provides that a motion may be heard in writing where it is “on consent, unopposed, or without notice under subrule 37.07(2)”.
[13] Subrule 37.07(2) prescribes the circumstances in which service of a notice of motion is not required. That subrule reads as follows: “Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.” It is only where those criteria are met that a motion may proceed in writing, without notice. There is no evidence to support a conclusion that those criteria are met on the matter before the court.
[14] The fact that a motion in writing is made on consent or is unopposed does not relieve the moving party of the requirement to serve the motion record and file an affidavit of service when filing the motion record with the court.
[15] There is no evidence before the court as to whether the Other Respondents were served with the notice of application, responded to Ms. Henry’s motion to add respondents, attended on the return of that motion, or are aware that Ms. Henry’s motion and the application were stayed. Some background as to the extent of the involvement, if any to date, of the Other Respondents on Ms. Henry’s motion and in the application generally would be of assistance to the court.
Costs of the Proceeding
[16] The relief to which Ms. Henry, GCC, and the Proposed Respondents consent includes “that there shall be no costs in respect of this motion or the Application.” I assume that the relief is intended to mean that none of GCC and the Proposed Respondents is seeking costs against Ms. Henry with respect to either the application or GCC’s motion.
[17] Unless there is evidence before the court to support a conclusion that the Other Respondents are giving up their rights to costs of the application, the relief with respect to costs set out in the draft order needs to be revised. Based on the record before the court, GCC is not entitled to waive the right of the Other Respondents to pursue costs in this matter. As currently set out, the relief provided with respect to costs of the application is too broad.
[18] In summary, GCC needs to clearly address costs of (a) the motion to amend, (b) the application, and (c) any other motions brought to secure the relief they require.
Google Canada or Google Canada Corporation
[19] The notice of motion identifies the moving party as “Google Canada Corporation”. The relief requested therein is in favour of GCC. There is no mention in the notice of motion of Google Canada (i.e., the named respondent).
[20] The draft order to which Ms. Henry, GCC, and the Proposed Respondents consent describes this motion as having been brought by “the Respondent named as Google Canada (“GCC”)”. The balance of the order refers only to GCC, including with respect to the dismissal of the motion to amend and in regard to the application.
[21] If the proper name of the respondent is “Google Canada Corporation”, then the title of proceeding should be amended, with the relief granted on the motion to amend providing that the amended title of proceeding shall be used in all documents subsequently served. GCC must consider whether it will proceed with a motion for leave to amend the title of proceeding before or as part of the motion for an order dismissing both Ms. Henry’s motion to amend and the application as against GCC. In any event, neither of the latter forms of relief can be obtained unless and until the stay of the motion to amend and the stay of the application are lifted.
Disposition
[22] Subrule 1.04(1) directs that the Rules of Civil Procedure are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Even with a liberal construction of the Rules, the procedural and substantive issues addressed in this endorsement are such that the relief requested by GCC cannot be granted at this time.
[23] It is incumbent upon GCC to consider the relief it requires and an efficient, cost-effective manner in which to secure that relief. GCC will also want to consider whether it is entitled to proceed in writing or by way of an oral hearing. GCC’s motion is adjourned to permit GCC to file the additional motion materials it determines are required as the next step(s) in this proceeding.
[24] I remain seized of the matter. All additional materials shall be filed to my attention. Whether GCC proceeds in writing or to an oral hearing, at any time, the matter shall proceed before me.
Madam Justice Sylvia Corthorn
Released: January 27, 2021
COURT FILE NO.: 17-73661
DATE: 2021/01/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MAUREEN HENRY, Applicant
-and-
GOOGLE CANADA, FACEBOOK, APPLE CANADA, BELL MOBILITY and FACEBOOK INC., Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: James Bunting and Anisah Hassan, for the Respondent/Moving Party, Google Canada
Maureen Henry, self-represented Applicant/Responding Party
No one appearing for the Respondents, Facebook, Apple Canada, Bell Mobility, and Facebook Inc.
HEARD: In writing
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: January 27, 2021
[^1]: It appears that the respondent, Google Canada is improperly named in the title of proceeding. In the notice of motion, that respondent is referred to as “Google Canada Corporation”, hence the use of the short-form “GCC” in the notice of motion and in this endorsement. There is, however, no evidence that the title of proceeding has been amended to correct the name of the respondent from “Google Canada” to “Google Canada Corporation”.