COURT FILE NO.: CV-20-00000743-0000
DATE: 2022/04/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HOLLY-ANNE JEAN LONGLEY, Plaintiff
AND:
JACOB LESLIE CROGIE, Defendant
BEFORE: Justice I.F. Leach
COUNSEL: Christopher S. Collins, for the Plaintiff herein
Linda M. O’Brien, for the Defendant herein, and for the Defendant in Hirtzel v. Crogie, Court file no. CV-20-1294-0000
Evelyn ten Cate, for the Third Parties Jessie Alexander John Hirtzel and Fiona Clements in respect of the claims made herein,[^1] (formally Court file no. CV-20-7430000A1)
Matthew D. Reid for the Plaintiff in Hirtzel v. Crogie, Court file no. CV-20-1294-0000
HEARD: In writing
ENDORSEMENT
[1] Before me is a motion brought in writing by the defendant herein, (Jacob Leslie Crogie), primarily pursuant to Rule 6.01(1) of the Rules of Civil Procedure, (but with additional references being made to Rules 1.04, 5.01 and 39.01), effectively seeking an order directing simultaneous trial -- or simultaneous or immediately sequential trial in the discretion of the trial judge -- of this action with:
a. trial of the third party claim initiated by the defendant herein against Jesse Alexander John Hirtzel and Fiona Clements, and formally assigned London court file no. CV-20-743-0000-A1; and
b. trial of Hirtzel v. Crogie, a separate claim brought by the same Mr Hirtzel against the same Mr Crogie, and formally assigned London court file no. CV-20-1294-0000.[^2]
[2] The motion material indicates that the claim of the plaintiff herein, the third party claim by the defendant herein against Mr Hirtzel and Ms Clements, and the plaintiff’s claim in Hirtzel v. Crogie, supra, all arise from the same underlying motor vehicle accident, which is said to have occurred on December 18, 2008.
[3] The supporting affidavit by counsel for the defendant herein attaches, as exhibits, the statement of claim and statement of defence filed herein, the third party claim which prompted the formal assignment of London court file no. CV-20-743-0000-A1, and the statement of claim and statement of defence filed in Hirtzel v. Crogie, supra. It also indicates and/or asserts:
a. that the parties are ready to set the actions down for trial;
b. that the indicated proceedings should be tried together as the evidence of “the three main parties”, (not otherwise specified, but whom I infer to be Ms Longley, Mr Hirtzel and Mr Crogie), will be required on issues of liability and damages;
c. that separate trial of the indicated claims would entail unnecessary costs, inefficiency and a less than optimal use of judicial resources; and
d. that no party would be suffer any appreciable prejudice or delay if the indicated claims are tried together.
[4] Having reviewed the motion material filed, I have declined to sign the submitted draft Order for the following reasons:
a. In relation to Rule 6.01(1) motions seeking an order directing simultaneous or sequential trial of two or more proceedings, it needs to be remembered that the court also has an interest in controlling its own process. In order for the court to make its own independent assessment of whether such relief should be granted, (e.g., having regard to the extent if any to which proceedings have questions of law or fact in common, the extent if any to which the relief claimed in proceedings arises out of the same transaction or occurrence or series of transactions or occurrences, and whether simultaneous or immediately sequential trial is likely to promote efficiencies and fairness, or give rise to delays, prejudice and/or the risk of inconsistent outcomes), the court accordingly should be provided with the entirety of pleadings filed in relation to the relevant proceedings. In this case, that has not been done. (For example, the motion material does not include any defence pleading filed in response to Mr Crogie’s third party claim against Mr Hirtzel and Ms Clements, but there are indications in the counsel descriptions set forth in the notice of motion that the defendants to the third party claim must have filed such a pleading, as Ms ten Kate is noted as their counsel of record. Moreover, the defendants to the third party claim are also described as plaintiffs by counterclaim, while the motion material does not include any pleading setting forth such a counterclaim, nor any defence that may have been filed in relation to such a counterclaim.) Supplementary motion material, to be filed by the moving defendant, should address and correct those deficiencies.
b. The material filed in support of any such Rule 6.01(1) motions also should include an indication as to the mode of trial of each proceeding, (i.e., whether or not a jury notice has been filed in relation to each proceeding), as that also has a bearing on whether and how the court should order simultaneous or immediately sequential trial of two or more proceedings.[^3] However, there are no such indications in the motion material filed before me. The supplementary motion material to be filed by the moving defendant should address and correct those deficiencies as well.
c. For a motion to proceed in writing pursuant to Rule 37.12.1 as an “unopposed” motion, it is not sufficient merely to indicate in a notice of motion that the motion is unopposed, as the moving defendant has done here. To the contrary, Rule 37.12.1(3) of the Rules of Civil Procedure expressly indicates that: “Where the motion is unopposed, a notice from the responding party stating that the party does not oppose the motion and a draft order shall be filed with the notice of motion”. (Emphasis added.) The Rules do not specify any prescribed form for the required notice from a responding party stating that the party does not oppose the motion. That permits the common practice of moving parties who seek to rely on Rule 37.12.1 filing a supporting affidavit or supplementary supporting affidavit attaching, as one or more exhibits, brief email indications from counsel for each responding party indicating that his or her client or clients does/do not oppose the motion. In this case, if the moving defendant’s motion is to proceed in writing as an “unopposed” motion, pursuant to Rule 37.12.1, the moving defendant needs to file such supplementary material. However, that supplementary material containing the required notices of non-opposition also should indicate non-opposition to the granting of the relief the moving defendant actually is seeking, which in this case is (for reasons outlined briefly above in footnote 2 and in greater detail below) and will be (for further reasons outlined below) different from the relief originally requested in the moving defendant’s original notice of motion. In particular, it would no longer be sufficient for the moving defendant to now file notices from the responding parties indicating non-opposition to the moving defendant’s original served and filed motion record unless those notices of non-opposition make clear the precise granting of relief to which the responding parties are not opposed.
d. As noted above, (in footnote 2 of these reasons), the draft Order submitted with the moving defendant’s motion record essentially asks the court to sign off on the granting of relief that is not the same as that formally sought in the moving defendant’s original notice of motion. (Again, that notice of motion formally seeks an order essentially directing simultaneous trial, while the draft Order essentially would direct simultaneous or immediately sequential trial, in the discretion of the trial judge.) While the variation in wording may seem slight, simultaneous trials and immediately sequential trials are not the same thing. Moreover, precise correspondence between the relief formally sought in a notice of motion and the relief to be granted by a draft Order submitted with the motion record has obvious importance where the moving party has served a motion record formally asking for one thing, but then asks the court to sign a draft order granting different relief, based on an indication that the motion is “unopposed”. In particular, it raises the spectre that a responding party may have indicated non-opposition to granting of the relief formally requested in the notice of motion, but may have opposed the granting of the different relief to be granted by the draft order; a free-standing draft order which may or may not have been served on the responding party along with the motion record. In this case, the deviation of the submitted draft order from the served notice of motion ultimately may have less significance, as a presiding trial judge, faced with a pre-trial order directing simultaneous or immediately sequential trial of proceedings always has discretion to “order otherwise”, pursuant to Rule 6.02. (For example, a responding party to this motion would still have an opportunity to argue that he or she did not oppose simultaneous trial, as requested in the notice of motion, but did oppose the possibility of immediately sequential trial as contemplated by the submitted draft Order.) However, it obviously is preferable to avoid the possibility of such disputes emerging at the outset of trial; e.g., by a notice of motion properly setting forth the relief actually being sought, and/or by a submitted draft Order corresponding to the relief sought in a notice of motion if granting of the relief sought in the notice of motion is said to be on consent or not opposed. As already noted, the moving defendant needs to file notices from the responding parties indicating non-opposition to the motion. In this particular case, however, because the relief to be granted by the submitted draft Order deviates from the relief sought in the notice of motion served on the responding parties, the moving defendant should file supplementary material indicating:
i. that the responding parties have been served with a supplementary notice of motion indicating that the moving defendant is seeking the different relief reflected in provisions of the submitted draft Order, together with notices from the responding parties that they do not oppose the granting of that different relief; or
ii. that the responding parties have been served with a copy of the draft Order the moving defendant is asking the court to sign, together with notices from the responding parties indicating their non-opposition to the granting of an Order in that form.
e. The notice of motion and submitted draft Order request and/or contemplate the granting of relief which is to some extent unnecessary, in turn complicating this matter needlessly and risking possible confusion as the various claims proceed to trial. In particular:
i. As noted above, the notice of motion seeks an order directing that Ms Longley’s claim, (addressed in Court file no. CV-20-0000743-0000), Mr Crogie’s third party claim in respect of Ms Longley’s claim, (addressed in Court file no. CV-20-0000743-0000-A1), and Mr Hirtzel’s claim against Mr Crogie, (addressed in Court file no.CV-20-00001294-0000), be tried together. Alternatively, the draft Order submitted with the motion record effectively seeks an order directing that the matters addressed by the three court files be “tried together, or one after the other, as the trial judge may direct”.
ii. However, there is no need for any order directing that Mr Crogie’s third party claim against Mr Hirtzel and Ms Clements, (Court file no. CV-20-0000743-0000), be tried simultaneously with or immediately after Ms Longley’s claim herein. Rule 29.08(2) already provides automatically that Mr Crogie’s third party claim “shall be tried at or immediately after the trial of the main action” between Ms Longley and Mr Crogie, unless the court orders otherwise.
iii. Similarly, while I have not been presented with any pleading asserting a counterclaim by the third parties Mr Hirtzel and Ms Clements against Mr Crogie, (and therefore cannot confirm that it exists, let alone see the precise form any such counterclaim may have taken), in my view any such claim also would not require an order to ensure its simultaneous or sequential trial with the main claim herein. In particular:
If it was framed as a fourth party claim by Mr Hirtzel and Ms Clements against Mr Crogie, it would have to be tried at or immediately after the trial of the main action herein, (unless the court orders otherwise), through the combined effect of Rule 29.12, (which makes the provisions of the rules applicable to third party claims applicable, with necessary modifications, to fourth and subsequent party claims), and the already-noted provisions of Rule 29.08(2).
If it was framed as a counterclaim to Mr Crogie’s third party claim, it still would have to be tried at or immediately after the trial of the main action herein, through the combined effect of Rule 27.08(1), (which requires a counterclaim to be tried at the trial of the main action, unless the court orders otherwise), and Rule 27.10, (which makes Rules 27.01 to 27.09 applicable, with necessary modifications, to the assertion of a counterclaim by a third party).
iv. To secure the outcome apparently sought by the moving defendant, the motion herein accordingly need only have sought an Order, directing simultaneous or sequential trial of Hirtzel v. Crogie, supra, (i.e., the action having London court file no. CV-20-00001294-0000, with the trial of the matters addressed by the other two London court file numbers. In my view, the draft Order should be amended accordingly, (and non-opposition to the granting of that relief confirmed by the filing of appropriate notices from the respondents), as the granting of unnecessary relief generally should be avoided, and in this case might create needless confusion; e.g., by suggesting incorrectly to the presiding trial judge or others that there was some reason why the above “automatic” rules outlined in sub-paragraphs 4(e)(ii) or 4(e)(iii) of these reasons would not apply in this case in the absence of a court order.
f. Perhaps it would go without saying, but the preamble to the revised draft order also will need to make reference to any supplementary motion material filed by the moving defendant.
[5] Finally, I will note that I am not seized of this matter. If and when the moving defendant files supplementary motion material addressing the issues noted above, the matter be placed before any judge of the court for consideration and requested signing of the revised draft order.
Ian F. Leach
Justice I.F. Leach
Date: April 1, 2022
[^1]: As noted below, the motion material indicates, (in the notice of motion’s indication of counsel being served with the notice of motion, and the corresponding indications of the parties being represented by those counsel), that the third parties Mr Hirtzel and Ms Clements are also plaintiffs by counterclaim, but the court was not presented with that pleading.
[^2]: As worded, the notice of motion formally seeks an order directing that the indicated proceedings be “tried together”, (i.e., simultaneous trial), while the wording of the draft Order submitted with the motion material would direct that the indicated proceedings be “tried together, or one after the other, as the trial judge may direct”, (i.e., simultaneous or sequential trial, in the discretion of the trial judge).
[^3]: See, for example, Birtch v. McConnell (1997), 16 C.P.C. (4th) 129 (Gen.Div.).