Court File and Parties

COURT FILE NO.: CV-20-84838 DATE: 2022/05/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JASON WRIGHT, Plaintiff AND 1313779 ONTARIO INC., carrying on business under firm name and style, BOREAL CONSTRUCTION, GILLES ALARY, FREEDOM 55 FINANCIAL and DAVID MOFFATT, Defendants

BEFORE: Justice Sylvia Corthorn

COUNSEL: Kellie Stewart, for the Plaintiff Stephane Bond, for Boreal Construction and Gilles Alary, Defendants Barry B. Papazian, Q.C., for David Moffat, Defendant Shari L. Savage, for Freedom 55 Financial, Defendant

HEARD: In Writing

Endorsement

[1] The plaintiff’s motion is for leave to amend the statement of claim. There are a number of reasons why the relief requested cannot be granted at this time. The deficiencies in the motion record, both in form and substance, are addressed below.

The Motion Record

[2] The first issue with the motion record arises from the plaintiff’s reliance upon r. 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The plaintiff states that the motion is brought in writing, under r. 37.12.1(1), “because opposition is not expected.” Rule 37.12.1(1) permits a party to bring a motion in writing where the motion is “on consent, unopposed or without notice under subrule 37.07(2)”. An expectation that the motion will not be opposed is not a basis upon which to bring a motion in writing.

[3] Despite stating that the motion is brought in writing because of an expectation that it would be unopposed, the motion record includes a consent signed by the lawyers for the existing parties to the action and by the lawyer for the proposed party to the action. One wonders why the plaintiff did not rely on the fact that the relief sought is on consent as the basis for proceeding with a motion in writing.

[4] The court relies on r. 1.04(1), applies a liberal construction of the Rules, and hears the motion in writing because it is on consent.

[5] The second issue with the motion record is that no affidavit of service was filed with the motion record. The plaintiff does not seek relief in the form of an order dispensing with the requirement for service of the motion record. There is nothing in the motion record to suggest that “the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”: r. 37.07(2). To the contrary, the relief requested includes a request for leave to amend the statement of claim to add a defendant – Luc Filion. As a non-party to this action, Mr. Filion is a person affected by the relief sought.

[6] The evidence is that Mr. Filion is already a defendant in a companion action. It appears that the purpose served by the proposed amendment to the pleading in the matter now before the court is to permit all of the issues between the parties and Mr. Filion to be determined in a single action. Regardless of Mr. Filion’s status as a party in a companion action, he is entitled to service of the motion record for the motion in this action (i.e., an action to which he was not yet a party).

[7] The order made at the conclusion of this endorsement provides that the motion record shall be served on all parties to this action and on Mr. Filion.

[8] Third, in both the notice of motion and the supporting affidavit, reference is made to the “style of cause”. That is antiquated language; that phrase has long been replaced by the phrase “title of proceeding”.

[9] Fourth, the relief requested includes the removal of Freedom 55 Financial as a defendant. The request for that relief is supported by the inclusion of a copy of a notice of discontinuance filed with the court in January 2022.

[10] A copy of the statement of claim in this action is included in the record; it was issued on October 29, 2020. The statements of defence, if any, delivered in the action are not included in the record. There is no evidence as to the pleadings exchanged to date. Which of the defendants, if any, have served their respective statements of defence in the more than 1.5 years since the statement of claim was issued?

[11] The status of the pleadings is relevant to the notice of discontinuance:

• If a notice of discontinuance is served before the close of pleadings, the plaintiff does not require leave of the court to discontinue the action against one or more of the defendants: r. 23.01(1)(a);
• If a notice of discontinuance is served after the close of pleadings, the plaintiff requires leave of the court to discontinue the action against one or more defendants: r. 23.01(1)(b); and
• If the discontinuance of the action as against one or more defendants is done with the consent of all parties, then the action may be discontinued at any time: r. 23.01(1)(c).

[12] Regardless of the timing of the discontinuance of the action as against Freedom 55 Financial, its effect is not that Freedom 55 Financial is “removed” from the title of proceeding and, where applicable, from the substantive text of the statement of claim.

[13] The procedure to follow in an effort to have Freedom 55 Financial “removed” from both the title of proceeding and from the substantive allegations is to request leave to file a fresh as amended statement of claim which makes no reference whatsoever to Freedom 55 Financial.

[14] It is incumbent on counsel for all parties, not only counsel for the moving party, to consider the relief sought and the documents required to obtain the relief sought, and to which consent is granted, on a motion. Counsel for the responding parties and for the non-party are required to consider whether, for example, the consent they are asked to sign is sufficient for the purpose of the relief requested.

[15] For example, the consent included in the record was signed by counsel for the plaintiff on behalf of the lawyers for the defendants in this action and the lawyers for Mr. Filion. A copy of the proposed amended statement of claim is attached as a schedule to the consent:

• Were the lawyers for the defendants and for Mr. Filion provided with a copy of the draft pleading and asked to consent to the proposed amendments?
• Did they know that they were being asked to consent to an amended pleading being “issued”?
• The lawyers for the defendants likely knew that the relief the plaintiff requires is leave to amend, not an order for an amended pleading to be issued. Why did the lawyers for the defendants not address the relief required (versus the relief requested) with counsel for the plaintiff when the motion materials were being prepared?

[16] Fifth, a copy of the originating process in this action is included as an exhibit to the supporting affidavit. The originating process is part of the record in the action. As such, it should be included in the record as a discreet document – separate and apart from the supporting affidavit. The originating process should appear in a separate tab to the tab at which the affidavit appears.

[17] The originating process in the companion action is not part of the record in the action before the court on this motion. It was proper for a copy of that originating process to be included as an exhibit to the supporting affidavit.

[18] Sixth, the consent filed states that, “The parties, as evidenced by their lawyers’ signatures below, consent to the attached draft amended statement of claim being issued.” Nowhere in the consent is it identified that Mr. Filion is a non-party and that, in that capacity, he consents to being added as a party to the action. The consent should read, “The parties and the non-party, Luc Filion, through their respective lawyers, consent …”

[19] Seventh, the consent is inaccurate in identifying that “the parties” consent to the proposed relief. The consent is not signed by a lawyer for Freedom 55 Financial. To be accurate, the consent should reflect that it is signed by “the lawyers for the remaining parties” or “the lawyers for all parties, other than Freedom 55 Financial”.

[20] Eighth, the notice of motion is not dated.

[21] Ninth, the notice of motion is not addressed to anyone. The document does not identify (a) the lawyers of record and the defendants whom they represent, and (b) Mr. Filion as a non-party and his address for service.

The Procedure to be Followed

[22] For the reasons set out above, the relief requested is not granted. The plaintiff’s motion is adjourned to be continued, in writing. The court makes the following order:

1. The plaintiff shall serve a copy of the motion record including (a) the undated notice of motion, and (b) the supporting affidavit sworn on January 6, 2022, on all of the parties to this action and on Luc Filion.
2. The plaintiff shall serve a copy of this endorsement on all parties to this action and on Luc Filion.
3. The plaintiff shall serve and file a supplementary motion record, which includes a notice of motion that is dated, on all parties to this action and on Luc Filion.
4. The plaintiff shall, when filing the supplementary motion record, file a draft order in Word.

[23] The court leaves it to the parties to determine the nature of the relief to which they consent with respect to Freedom 55 Financial and to ensure that the requisite documents are included in the supplementary motion record to be delivered. I remain seized of the matter; the supplementary motion record and draft order shall be filed to my attention.

Madam Justice Sylvia Corthorn Date: May 4, 2022