Court File and Parties

COURT FILE NO.: CV-13-494525

MOTION HEARD: 20211019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cascades Canada ULC, Plaintiff

AND:

2222985 Ontario Inc. and 2223156 Ontario Inc., Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Tim Gleason and Jeanine Farmer, counsel for the plaintiff

Ronald B. Moldaver, QC, counsel for the defendants

HEARD: 19 October 2021

REASONS FOR DECISION

[1] The plaintiff filed its trial record with the court on 7 December 2020. The defendants argue that the court should not have accepted the filing as the record was out of time. Both parties bring motions before me. The defendants bring this motion to set aside the passing of the trial record and to dismiss the action as a result of the plaintiff’s failure to pass the trial record to set the action down for trial.

[2] The plaintiff argues that defendants’ motion should be dismissed. It takes the position that it correctly calculated the deadline to set the action down and filed the trial record within the applicable time limit. Alternatively, if it miscalculated the time, it was a result of a slip or error discovered after the order was made or facts that arose after the order was made and the defendants suffer no prejudice. In the event the defendants’ motion is granted and the trial record set aside, the plaintiff brings a cross motion either validating the passing of the record or, alternatively permitting it to file its trial record as of 7 December 2020.

Background

[3] On 6 March 2020 Master Josefo (as his position then was) ordered that the date by which this matter must be set down for trial be extended to 30 June 2020 (the “order”).

[4] As the world knows, a global pandemic intervened within days of the order. On 17 March 2020 the government declared an emergency under the Emergency Management and Civil Protection Act (the “Act”). That same date in person court operations were suspended. On 20 March 2020 by regulation under the Act (the “Regulation”), the government temporarily suspended all limitation periods and time periods within which steps must be taken in a proceeding in Ontario under any statute, regulation, rule, bylaw or order of the Government of Ontario.

[5] On 13 May 2020, the Office of the Chief Justice issued a directive, as follows:

C. PROCEDURES GOVERNING ALL SCJ PROCEEDINGS DURING SUSPENSION OF IN-COURT OPERATIONS

1. Responsibilities of Lawyers and Parties During Suspension of In-Court Operations, including Mediation

During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties. For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued. Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.

[6] The plaintiff was ready to file its trial record by May 2020, well within the time set out in the order. It sought direction from the court on 20 May 2020 and was advised that trial records sent by mail would be processed once the Act had been lifted. It followed up again on 29 June 2020 and was advised that the court was not processing trial records other than for construction lien matters.

[7] The plaintiff followed up a third time on 7 July 2020 and the court advised the plaintiff’s process server that it was not yet accepting the filing of trial records, although other materials were starting to be filed.

[8] On 24 July 2020, the Act was replaced by the Reopening of Ontario Act which, among other things, continued the orders made under the prior Act and Regulation, including the suspension of limitation periods. This Act remained in place until 14 September 2020. The regulation that then lifted the suspension stated:

For greater certainty, any limitation period or period of time within which a step much be taken in a proceeding that is temporarily suspended under this Regulation resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.

[9] When the suspension was lifted, plaintiff’s counsel calculated that the deadline to set the action down was suspended between 17 March 2020 and 14 September 2020 and determined that the new deadline for filing its client’s trial record was 24 December 2020.

[10] He filed the trial record on 7 December 2020 and the court accepted it.

Argument

[11] The defendants have confirmed that their motion is based exclusively on the plaintiff’s alleged failure to comply with the order. They argue that the record should not have been accepted based on the order and should be struck on that basis alone. They argue that the Act and Regulation did not suspend compliance with existing court orders. They further argue that the plaintiff should not have relied on information from the court about trial record filings, should have alerted the court to the fact that it had an order requiring the action to be set down by 30 June 2020 and insisted that it be able to file. Lastly, they argue that the plaintiff should not have filed the record without alerting the court to the outstanding court order and advising the defendants of their intention to file despite the language of the court order.

Analysis

[12] I find that the Regulation did apply to suspend the running of the filing time set out in the order. The rationale for the Regulation suspending limitation periods was the recognition that parties that could not comply with limitation periods during a global pandemic should not be jeopardized as a result. While the 30 June 2020 set down date was a result of an order and not strictly under rule 48.14, the order effectively extended the set down date, which was imposed initially under rule 48.14, itself a regulation caught by the suspension Regulation.

[13] If I am wrong in that regard, I find that the filing was appropriate in any event and I grant relief to permit the filing either under rule 3.04(4) or under rule 59.06 based on facts arising since the order was made. If the trial record were to have been struck, I would have granted the plaintiff’s motion to allow it to file pursuant to rule 48.14(7). I do so for four reasons.

[14] First, I find that the plaintiff complied with the Directive from the Office of the Chief. Plaintiff’s counsel did attempt to comply with the existing court order. He or his office contacted the court on three separate occasions and were advised that the court was not accepting trial records. The defendants do not believe this to be factually correct or, at least, complain that they cannot test it. However, it is uncontested that this is what the plaintiff’s lawyer was advised when his firm inquired about filing the record.

[15] The defendants also argue that the plaintiff should not have accepted that information from the court. It should have alerted the court to the fact that it had to comply with an outstanding court order and told staff to speak to a supervisor. I find there was no reason to mistrust the advice given, particularly when it was consistently given over a number of inquiries.

[16] While the Chief’s office rightly advised lawyers that they had to be prepared to explain to the court why COVID-19 had rendered compliance not feasible, plaintiff’s counsel has readily done so. He attempted to comply with the order as of the date set out in it, he believed the Regulation suspended the set down deadline, he did his best to stay on top of the judicial developments with respect to COVID-19, he confirmed with the court on more than one occasion that the record could not be filed, he calculated the new filing date when the stay was lifted and he filed within that time.

[17] Second, putting aside the impact of the pandemic, it does not follow that a trial record should be struck and an action dismissed because a plaintiff did not file it by the date set out in a court order. While a strict reading of the order may have resulted in the trial record being struck in non-pandemic circumstances, it would not necessarily result in a dismissal of the action. The order itself contains no such consequences and the defendants confirmed that they were not moving under rule 48 or rule 24 for a dismissal but were relying solely on the order. Relying on the order itself does not support a dismissal. Even had the defendants relied on rule 60.12 (Failure to Comply with Interlocutory Order), that rule provides that, where a party fails to comply with an interlocutory order, the court may make such order as is just.

[18] Third, the defendants argue that the plaintiff should have brought an emergency motion to vary the order. Had they done so, there is no doubt the motion would have been granted. In any event, I find the plaintiff had good reason to believe such a motion to be unnecessary. Plaintiff’s counsel reviewed the Act, the Regulation and the language lifting the stay and concluded that amended filing deadline was December 24. This was a reasonable interpretation.

[19] Lastly, had it been necessary, I would have found that the plaintiff met the test under rule 48.14 and would have been granted an extension to 7 December 2020 to permit the filing of the trial record. It had a reasonable explanation for the relatively short delay (from 30 June 2020 to 7 December 2020) and there was evidence that the deadline (had I found it to have been June 30) was missed through an inadvertent calculation. The motion was only necessary when the defendants brought their motion to strike the trial record and dismiss the action and it was brought promptly at that time. The plaintiff had demonstrated an intention to set the action down and, in fact, had done so, and there is no prejudice.

Costs

[20] I find the plaintiff filed its trial record on time and the defendants’ motion is dismissed. The plaintiff was successful and there is no reason that costs should not follow the event. There is no general rule that a party seeking an indulgence is not entitled to costs if they succeed. Echoing JPW Niagara Limited v. Sullivan Mahoney Lawyers et al 2020 ONSC 6762 at paragraph 10, were the defendants to be awarded costs regardless of the outcome of the motion, that would “allow responding parties to take unreasonable positions because there is no risk of costs being awarded against them”.

[21] Granting the defendants’ motion and striking either the trial record or the action would in no circumstance have led to a fair or just result, particularly at a time when counsel should be working cooperatively to ensure that a devastating pandemic does not adversely impact matters being resolved on their merits.

[22] The plaintiff seeks the all inclusive amount of $9,662.16 in partial indemnity costs. I find the time to be reasonable and in the ballpark of what the defendants would have sought had they succeeded. The defendants shall pay the plaintiff its costs of $9,000 within 30 days of this decision.

Associate Justice Jolley

Date: 26 October 2021