COURT FILE NO.: CV-16-67303

DATE: 2021/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marina Sabanadze et al.

Plaintiffs/Moving parties

– and –

Pierre Jude Joseph et al.

Defendants/Responding parties

Joseph Obagi and Christopher Obagi for the plaintiffs/moving parties

Suzanne Sviergula for the defendants Robert White and American Iron and Metal LP Inc.

Patricia Lawson for the defendants Pierre Jude Joseph and Greyhound Canada Transportation ULC

Matthew Smith for the remaining defendants

HEARD: September 23, 2021

ENDORSEMENT ON MOTION FOR ORDER TO IMPLEMENT A SETTLEMENT AND TO STRIKE A JURY NOTICE

justice Sally Gomery

[1] The Plaintiffs seek orders to reflect the settlement of claims against some defendants. They also seek an order striking the jury notice.

Background

[2] This is an action for personal injuries arising from a multi-vehicle collision on Highway 417 near Alexandria on January 27, 2014. The Plaintiffs were passengers on a Greyhound bus that rear ended a tanker truck. Many other vehicles were involved.

[3] The action was issued on January 25, 2016. Discoveries are complete. The parties participated in mediation on October 20 and 21, 2020.

[4] Following the mediation, the Plaintiffs settled their claims against eighteen Defendants (the “Settling Defendants”) pursuant to a Pierringer agreement. The Plaintiffs have not settled their claims against the four remaining Defendants: Pierre Jude Joseph, Greyhound Canada Transportation ULC, Robert White and American Iron and Metal LP Inc. (the “Non-Settling Defendants”).

[5] No trial date has been set. A pre-trial conference will take place on December 8, 2021. The Non-Settling Defendants have filed a jury notice. Prior to the settlement of some of the claims, the parties estimated that a trial would take twelve weeks. This does take into account the potential impact of the settlement.

Leave to bring the motion

[6] The Plaintiffs argued that leave to bring the motion should be granted in the circumstances of this case. The test for leave is a low bar. The parties were all aware that a motion would be required following the settlement. In the wake of the Covid-19 pandemic and its impact on the Ontario justice system, there is new caselaw on the striking of jury notices.

[7] The Non-Settling Defendants noted that the Plaintiffs did not seek leave in their notice of motion. They nonetheless did not object to proceeding with the motion.

[8] It is in the interests of the parties to obtain orders implementing the settlement and permitting the filing of a Fresh as Amended Statement of Claim. The Plaintiffs should have the opportunity to advance a motion to strike the jury notice in light the impact of Covid-19 on the court’s ability to accommodate civil jury trials.

[9] I therefore granted leave to the plaintiffs to present this motion.

Order to implement the settlements

[10] The parties agree that the court should issue an order implementing the settlements but disagree on some of the terms. Having considered the parties’ arguments, I attach the order to be issued.

[11] With respect to paragraphs 1, 2 and 3, the parties agree that the Plaintiffs should have leave to file a Fresh as Amended Statement of Claim that eliminates any claims or cross-claims against the Settling Defendants and reduces the Plaintiffs’ remaining claims for damages, costs, disbursements and interest against the Non-Settling Defendants to exclude the liability apportionable to the Settling Defendants.

[12] With respect to paragraph 4, the word “solely” in the phrase “without prejudice to the Plaintiffs’ right to continue the action solely as against the Defendants” has been removed. Although there is no John Doe defendant named in the action, there is still an unidentified motorist. There is no reason why the Plaintiffs should be required to renounce their right of action against that person as part of the settlements.

[13] With respect to paragraph 5, Plaintiffs’ counsel expressed concern that wording proposed by the Settling Defendants, and in particular reference to “several apportionments”, implied that the Non-Settling Defendants would no longer be jointly and severally liable to the Plaintiffs. In the absence of any strong objection by counsel for the Settling Defendants, the Plaintiffs’ proposed wording has been adopted.

[14] With respect to paragraph 6, the Non-Settling Defendants proposed the following wording:

The Court Further Orders that the Settling Defendants shall provide responses to all undertakings and production of all documents related to those responses within thirty (30) days of the date of this Order, failing which this action and crossclaims against that Settling Defendant will continue until those responses and documents are received by the Non-Settling Defendants and Plaintiffs or until the conclusion of trial or3 resolution of the action.

[15] Counsel for Plaintiffs and the Settling Defendants strongly objected to a term that would make their release from the action conditional on the Non-Settling Defendants being satisfied that they had received all outstanding undertakings and productions within a certain delay. From the Settling Defendants’ view, the purpose of settling would be defeated if the order specified that they might have to remain in the action despite the resolution of all substantive claims against them. On the other hand, I agree with the Non-Settling Defendants that the order should contain a meaningful enforcement mechanism with respect to the Settling Defendants’ outstanding discovery obligations. I have accordingly revised paragraph 5 to specify that, if the Settling Defendants do not comply with their discovery obligations within thirty days, the Non-Settling Defendants shall have leave to bring a motion to enforce them and they shall presumptively be entitled to costs on a substantial indemnity basis if that motion is granted.

[16] According to Plaintiffs’ counsel, paragraphs 10 and 11 could imply that experts retained by the Settling Defendants would be obliged to meet with counsel for the remaining parties and to otherwise assist them in the litigation. I do not agree. The paragraphs provide for a waiver of privilege by the Settling Defendants so that experts they retained or jointly retained may, if they choose, accept a further retainer from the Plaintiffs or Non-Settling Defendants. They do not order any expert to do anything, nor could they. The experts are free to accept or refuse to meet with the remaining parties and to accept or refuse any further retainer.

[17] The Non-Settling Defendants proposed the following term:

This Court Further Orders that the Settling Defendants shall provide to the Plaintiffs and Non-Settling Defendants any photos, videos or other documentation obtained in the future which may be relevant to liability and in particular to the identity of the first vehicle in the collision sequence and the identity of the driver and owner of that vehicle for purposes of this litigation subject to direction by the trial judge.

[18] This term is objectionable as it would impose an ongoing disclosure obligation on non-parties. I have accordingly removed it. Ms. Lawson expressed concern that, unbeknownst to her, information might surface about the identity of an unknown driver. The Settling Defendants will remain material witnesses. Nothing will prevent counsel for any remaining party from contacting them while the litigation is still ongoing and asking whether they have newly discovered materials. If they refuse to answer, counsel may subpoena them or bring a motion for third-party production.

[19] Finally, on consent, the Non-Settling Defendants shall have forty-five days to deliver amended statements of defence following service of the Fresh as Amended Statement of Claim.

Motion to strike the jury notice

[20] The Plaintiffs seek an order striking the jury notice. They say that they are ready to go to trial, but do not know when civil trials will recommence in Ottawa. Even when civil jury trials resume, criminal proceedings will be given priority for scheduling purposes. As a result, assuming the Non-Settling Defendants refuse to consent to a judge-alone trial, this litigation will “linger in a pool of uncertainty”. As recognized in Louis v. Poitras, 2021 ONCA 49, delay alone may justify striking a jury notice, particularly in a case where delay may result in the erosion of an insured plaintiff’s past income loss claims. Striking the jury notice in this case would allow the court to order that the trial proceed in tranches. In that case, the first two or three weeks of a trial could take place in months as opposed to years.

[21] The Settling Defendants take the position that the motion to strike is premature. Since no pre-trial conference has taken place, the parties have not even determined how long a trial would be expected to take, given the settlement of many claims.

[22] I agree that the motion is premature. There is no way to assess when the trial of this matter could be scheduled without knowing how long it will take and how the evidence is expected to roll out. The Plaintiffs’ argument presupposes that a trial before a judge alone could be set sooner because the hearing could proceed in tranches. There is no way to evaluate this argument without at least minimal insight into what evidence will be led. These issues will be canvassed at the pre-trial conference two months from now.

[23] Plaintiffs’ counsel contends that the Settling Defendants will not participate meaningfully in settlement discussions at the pre-trial if a trial date has not yet been set, especially if they believe that a trial will not take place within the next year or more. Counsel for the Settling Defendants take issue with this argument, pointing out that they have already participated in lengthy mediation.

[24] Although I applaud the Plaintiffs’ desire to move forward as quickly as possible, this does not allow me to adjudicate the motion to strike the jury notice on incomplete information.

[25] The motion is granted in part and without prejudice to the Plaintiffs’ right to seek a new date for their motion to strike the jury notice. I am hopeful that this prospect may itself encourage the parties to focus on how long it may take to try the action, and whether there is a serious prospect of settlement of the remaining claims.

[26] I am not awarding costs on this motion given that success on the issues was divided.

Justice Sally Gomery

Released: October 12, 2021

Court File Number: 16-67303

ONTARIO SUPERIOR COURT OF JUSTICE

Before the Honourable Justice ) , the day of

) , 2021

B E T W E E N :

MARINA SABANADZE, SABRINA BELAKEHAL, DANIELLE BERGEVIN and EUGENE MUNYURANGABO

Plaintiffs

-and-

PIERRE JUDE JOSEPH, GREYHOUND CANADA TRANSPORTATION ULC, EMILY JIANG, EDWARD JIANG , MORTRANS INC., THERESA HOWES, EXECUTRIX OF THE ESTATE OF ALEXANDER HOWES, deceased, MELANIE LAVERTUE, SHAWN LAVERTUE, AMERICAN IRON AND METAL LP INC., ROBERT WHITE, 2047446 ONTARIO INC., DIDAR SINGH DHALIWAL, 1649313 ONTARIO INC., CLAUDE MICHAUD, TRANSPORTS RMT INC., PATRICK VIGEANT, 1550983 ONTARIO INC., BRIAN LAPIERRE, RST TRANSPORT, MARC FORTIER, VIJAY VERMA, HARPREET BAJWA, SARAH ZASLOV and JEAN ROBITAILLE, 1634040 ONTARIO INC. O/A SHOULDICE TRUCKING INC., MATHIEU LEBEAU-BÉRUBÉ and HOLLY OCKENDEN

Defendants

ORDER

This motion, made by the Plaintiffs for an Order for leave to amend the Amended Amended Statement of Claim in accordance with the attached Schedule “A” to implement a proportionate share settlement agreement between the Plaintiffs and the Defendants, Emily Jiang, Edward Jiang, Mortrans Inc., Theresa Howes, Executrix of the Estate of Alexander Howes, deceased, Melanie Lavertue, Shawn Lavertue, 2047446 Ontario Inc., Didar Singh Dhaliwal, 1649313 Ontario Inc., Claude Michaud, Transports RMT Inc., Patrick Vigeant, 1550983 Ontario Inc., Brian Lapierre, RST Transport, Marc Fortier, Vijay Verma and Harpreet Bajwa (collectively the “Settling Defendants”), and an Order dismissing the action and all crossclaims by or against the Settling Defendants, all on a without cost basis, was heard this day at the courthouse, 161 Elgin Street, Ottawa, Ontario.

On reading the motion records and facta filed by the parties, on hearing the submissions of the lawyers for the parties, and on reading the draft Fresh as Amended Statement of Claim,

1. This Court Orders that the Amended Amended Statement of Claim issued by the Plaintiffs be further amended in accordance with the attached Schedule “A”.

2. This Court Further Orders that this Action and all crossclaims are hereby dismissed, without costs, by and as against the Defendants, Emily Jiang, Edward Jiang, Mortrans Inc., Theresa Howes, Executrix of the Estate of Alexander Howes, deceased, Melanie Lavertue, Shawn Lavertue, 2047446 Ontario Inc., Didar Singh Dhaliwal, 1649313 Ontario Inc., Claude Michaud, Transports RMT Inc., Patrick Vigeant, 1550983 Ontario Inc., Brian Lapierre, RST Transport, Marc Fortier, Vijay Verma and Harpreet Bajwa.

3. This Court Further Orders that that all claims for contribution and/or indemnity or any other relief over by the Defendants, Pierre Jude Joseph, Greyhound Canada Transportation ULC, Robert White and American Iron and Metal LP Inc., whether asserted, as yet asserted or still unasserted, as against the Defendants, Emily Jiang, Edward Jiang, Mortrans Inc., Theresa Howes, Executrix of the Estate of Alexander Howes, deceased, Melanie Lavertue, Shawn Lavertue, 2047446 Ontario Inc., Didar Singh Dhaliwal, 1649313 Ontario Inc., Claude Michaud, Transports RMT Inc., Patrick Vigeant, 1550983 Ontario Inc., Brian Lapierre, RST Transport, Marc Fortier, Vijay Verma and Harpreet Bajwa, in relation to the matters raised or the claims made in this Action, are hereby forever barred, prohibited and enjoined.

4. This Court Further Orders that the dismissal of the Action as against the Settling Defendants is without prejudice to the Plaintiffs’ right to continue this action as against the Defendants, Pierre Jude Joseph, Greyhound Canada Transportation ULC, Robert White and American Iron and Metal LP Inc. (collectively the “Non-Settling Defendants”).

5. This Court Further Orders that the Plaintiffs may only recover damages, costs, disbursements and interest from the Settling Defendants attributable to their share of liability to the Plaintiffs. For further clarity, the Plaintiffs are not entitled to recover from the Non-Settling Defendants any amount which they would be entitled to recover from the Settling Defendants by way of contribution and/or indemnity through any crossclaim or third party claim in this action under the Negligence Act, RSO 1990, c N.

6. This Court Further Orders that the Settling Defendants shall provide responses to all undertakings and production of all documents related to those responses within thirty (30) days of the date of this Order, failing which the Non-Settling Defendants shall have leave to bring a motion against the Settling Defendants to enforce this order and, should they succeed, shall be presumptively entitled to costs on the motion on a substantial indemnity basis.

7. This Court Further Orders that the Settling Defendants preserve all documents listed in their affidavits of documents and any other documents subsequently produced by them for use in this litigation until the conclusion of trial or resolution of the action.

8. This Court Further Orders that the Settling Defendants advise the Plaintiffs and the Non-Settling Defendants of the last known contact information for the witnesses who were deposed at discovery, whether they continue to be employed by the Settling Defendants, and whether they may be contacted directly or only through counsel, within thirty (30) days of the date of this Order.

9. This Court Further Orders that the Settling Defendants provide the Plaintiff with the last known contact information for any other employees or former employees who may be required as witnesses upon request, and within thirty (30) days of that request.

10. This Court Further Orders that the Settling Defendants authorize the liability expert retained by or on behalf of the Settling Defendants Vijay Verma and Harpreet Bajwa to provide the Plaintiffs with an opportunity to meet with them individually and to cooperate with any requests to attend at trial. The costs of any such meetings or attendance at trial shall be borne by the Plaintiffs.

11. This Court Further Orders that the Settling Defendants authorize all experts retained by the Settling Defendants and Non-Settling Defendants jointly, to provide the Non-Settling Defendants with an opportunity to meet with them individually and to cooperate with any requests to attend at trial. The costs of any such meetings or attendance at trial shall be borne by the Non-Settling Defendants.

12. This Court Further Orders that the Plaintiffs and Non-Settling Defendants may use the affidavits of documents, documentary production and discovery transcripts relating to the Settling Defendants for purposes of this litigation subject to direction by the trial judge.

13. This Court Further Orders that the Plaintiffs amend and serve the Fresh as Amended Statement of Claim on the Non-Settling Defendants within 21 days of the date of this Order; the Non-Settling Defendants shall have forty-five (45) days following receipt to deliver an amended Statement of Defence.

COURT FILE NO.: CV-16-67303

DATE: 2021/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marina Sabanadze et al.

Plaintiffs/Moving parties

– and –

Pierre Jude Joseph et al.

Defendants/Responding parties

ENDORSEMENT ON MOTION FOR ORDER TO implement a SETTLEMENT AND TO STRIKE A JURY NOTICE

Justice Sally Gomery

Released: October 12, 2021