Court File and Parties

COURT FILE NO.: CV-21-00000269-0000 DATE: 2022/04/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THAMER AL JOUMA, Plaintiff AND: NORMA GOTTESMAN and HARRY GOTTESMAN, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Karl Arvai, for the Plaintiff John A. Watson, for the Defendants No one for the proposed additional defendant, The Dominion of Canada General Insurance Company

HEARD: In writing

Endorsement

[1] Before me is a motion brought in writing by the plaintiff, seeking an order granting leave to amend the statement of claim herein so as to add an additional defendant, (i.e., The Dominion of Canada General Insurance Company, hereinafter referred to as “Dominion”), along with further amendments providing particulars of the plaintiff’s intended claim against that proposed additional defendant.

[2] By way of further background:

a. This litigation stems from an underlying motor vehicle accident which is said to have occurred on or about September 14, 2018; hereinafter referred to as “the accident”.

b. The plaintiff’s statement of claim herein was issued on March 8, 2021, and served personally on the named defendants, (the driver and owner of the defendant automobile), on May 12, 2021. Those defendants apparently referred the matter to their putative insurer, the Aviva insurance company, (hereinafter referred to as “Aviva”), whose representative exchanged email correspondence with the plaintiff’s lawyer.

c. On May 31, 2021, Aviva’s representative advised the plaintiff’s lawyer that it was investigating a coverage issue in relation to the policy of insurance the named insureds had with Aviva. On June 15, 2021, Aviva’s representative advised the plaintiff’s lawyer that Aviva had denied coverage to the named defendants in relation to claims against them arising out of the accident.

d. On June 16, 2021, the plaintiff’s lawyer faxed a letter to Dominion, (the plaintiff’s own motor vehicle insurer), putting it on notice that the plaintiff intended to advance a claim against Dominion in relation to the accident, pursuant to the standard “Family Protection Endorsement” forming part of the plaintiff’s police of insurance with Dominion.

e. The supporting affidavit filed in support of the motion indicates that a representative from Dominion, Mr Butler, thereafter entered into email correspondence with the plaintiff’s lawyer; i.e., by sending an email, (not included with the plaintiff’s motion material), dated August 23, 2021, “enquiring regarding the scheduling of the motion to add Dominion as a defendant and requesting certain information and productions”.

f. On October 13, 2021, the named defendants, having personally retained counsel to defend them in this proceeding, delivered a notice of intent to defend. They have not yet delivered a statement of defence.

g. On March 14, 2022, Mr Butler sent a further email to the plaintiff’s lawyer, which was attached to the supporting affidavit as an exhibit. In addition to following up on requested productions, and requesting a status report, the email asked the following question: “When is your Motion scheduled to Amend your client’s claim to add The Dominion of Canada (sic) as a defendant?”

h. The plaintiff filed its motion herein on or about March 30, 2022. The notice of motion indicates that it is being brought in writing pursuant to Rule 37.12.1(1) of the Rules of Civil Procedure, “because it is on consent”. In that regard:

i. the notice of motion indicates that Dominion is “waiting to be added as a defendant”; and

ii. along with his motion record, the plaintiff filed a formal consent signed by counsel for the plaintiff, and by plaintiff counsel on behalf of counsel for the named defendants, consenting to an order amending the statement of claim in the proposed manner, as set forth in the motion record and in a schedule to the signed consent.

[3] I have not yet signed the requested order because, in my view, the filing of further material confirming Dominion’s consent to the motion is required before the motion may proceed in writing as a motion “on consent” pursuant to Rule 37.12.1(1).

[4] In that regard, I note that Rule 26.02 of the Rules of Civil Procedure reads as follows:

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court.

[Emphasis added.]

[5] In circumstances such as those giving rise to this motion, the filed consent of the plaintiff and extant defendants to such a motion accordingly is insufficient to make it a motion “on consent”; the formal consent of the proposed additional party is also required.

[6] Although the supporting affidavit filed with the motion characterizes the email correspondence from Dominion’s representative as an indication that Dominion is “waiting to be added as a defendant”, that is not what the email correspondence as described and filed actually said. Dominion’s representative merely asked for information as to when the motion to amend the plaintiff’s pleading had been scheduled; an inquiry that does not, in itself, indicate Dominion’s intended position in relation to the motion.

[7] Although the moving plaintiff has filed a consent and draft order with its motion material, in attempted compliance with Rule 37.12.1(2), the consent filed accordingly is insufficient.

[8] Supplementary material including the formal consent of the Dominion is required. If that consent is not forthcoming, and Dominion does not supply a notice stating that it does not oppose the motion in a manner sufficient to satisfy the requirements of Rule 37.12.1(3), the motion may not proceed in writing.

[9] Finally, I note that I am not seized of this matter. If the moving plaintiff files the supplementary material required to permit this motion to proceed in writing pursuant to Rule 37.12.1, the matter may be placed before any judge of the court.

“Justice I.F. Leach” Justice I.F. Leach Date: April 3, 2022