Superior Court of Justice - Ontario

Citation: 2022 ONSC 2848 Court File No.: CV-100/2020 and CV-20-00000958-0000 Date: 2022/05/11

Re: CLIFFORD GRAHAM, Plaintiff And: BROSE CANADA and 1803299 ONTARIO LTD. and UNKNOWN PROPERTY MANAGEMENT COMPANY, Defendants

Before: Justice I.F. Leach

Counsel: Christopher Dawson, for the Plaintiff Ron A. LeClair and Nic Preston, for the Defendant Brose Canada The Defendant 1803299 Ontario Ltd. unrepresented and noted in default Nazli Buhary, for the Defendant Unknown Property Management Company

AND

Re: CLIFFORD GRAHAM, Plaintiff And: COURTLAND PROFESSIONAL PROPERTY MANAGEMENT and THE PEOPLE STORE STAFFING SOLUTIONS, Defendants

Before: Justice I.F. Leach

Counsel: Christopher Dawson, for the Plaintiff Nazli Buhary, for the Defendant Courtland Professional Property Management The action having been discontinued as against The People Store Staffing Solutions

Heard: In writing

ENDORSEMENT

[1] Before me in writing are three motions brought in relation to two proceedings stemming from the same alleged slip and fall accident; an accident that is said to have occurred on January 18, 2018, at a property identified by its municipal address as 1005 Wilton Grove Road, in the city of London.

[2] By way of further information concerning the parties to the litigation:

a. Clifford Graham is the alleged victim of that slip and fall accident;

b. Brose Canada (“Brose”) is said to be an occupier of the property;

c. 1803299 Ontario Ltd. (“1803299”) is said to be the owner of the property; and

d. Courtland Professional Property Management (“Courtland”) is said to have had inspection and maintenance duties in relation to the property.

[3] The filed motion material includes evidence indicating that:

a. Mr Graham started the first proceeding herein, (i.e., having London court file no. CV/100/2020), by way of a statement of claim issued on or about January 13, 2020. In that action, Mr Graham identified Brose and 1803299 as defendants by name. However, when the action was commenced, Mr Graham and his counsel did not know the name of the property management company thought to have responsibility for its inspection and maintenance. The third defendant to the proceeding accordingly was identified as “Unknown Property Management Company”. Brose Canada has entered a defence to the action; a defence which alleges, inter alia, that the action should not be allowed to proceed having regard to workers compensation legislation, insofar as Mr Graham was said to have been in the course of his employment by The People Store Staffing Solutions, (“The People Store”), which had assigned him to work at the Brose premises for Brose at the time of the accident.[^1] 1803299 filed no defence pleading, and was noted in default at the request of the plaintiff.

b. In time, Mr Graham and his counsel received information indicating that Courtland was the previously “Unknown Property Management Company”. To protect Mr Graham’s position, the second proceeding, (i.e., having London court file no. CV-20-00000958-0000), was commenced by a statement of claim issued on June 2, 2020, naming Courtland and The People Store as defendants. That action subsequently was discontinued against The People Store.

[4] By way of further description of the three motions:

a. The first two motions are virtually identical, and are brought by the common sole plaintiff (Mr Graham) in each of the two proceedings identified above. The motions seek consolidation of the two actions, into one common proceeding, by an order essentially incorporating the latter proceeding into the former proceeding.

b. The third motion is brought by the same plaintiff, (Mr Graham), and inherently is a motion to be considered and addressed subsequent to the contemplated granting of relief in relation to the first two motions. It seeks leave to amend the statement of claim in the consolidated proceeding in a manner that reflects the consolidation and brings the consolidated proceeding up to date in terms of correctly identifying remaining defendants, and eliminating or omitting now unnecessary references to an “unknown” defendant, (i.e., the “Unknown Property Management Company” since identified as the Courtland Professional Management Company), and a previous defendant, (The People Store Staffing Solutions), against which relevant litigation has been discontinued.

[5] As noted above, the three motions now have come before me in writing. In that regard:

a. All three motions initially were made returnable in regular motions court on Friday, April 29, 2022, and plaintiff counsel filed an appropriate confirmation indicating that the motions would be proceeding to a hearing in respect of all issues raised therein.

b. By the time the motions were to be argued, however, plaintiff counsel had received indications from counsel for Brose and Courtney that there would be no opposition to the substantive relief sought by the motions, (provided no costs were sought), and plaintiff counsel advised the court registrar of that development accordingly.

c. Pursuant to established court practice here in London, plaintiff counsel attended at motions court to provide an oral confirmation to the relevant court registrar that the confirmed motions now were to proceed on an unopposed basis.[^2] That indication of non-opposition to the motions resulted in their being redirected automatically to the “basket motion” procedure for addressing motions and applications capable of being addressed in writing, (e.g., via Rule 37.12.1 of the Rules of Civil Procedure), in order to avoid unnecessary consumption of time reserved for oral argument of opposed motions and applications.

d. Counsel correspondence subsequently sent to and/or filed with the court noted that the registrar inadvertently and incorrectly had indicated, in the endorsement she created, that the unopposed motions were going to proceed in writing “on consent of the parties”; an error which the registrar independently has confirmed in the subsequent email correspondence directing the matters to my attention. The same correspondence confirmed, between counsel for the remaining litigants, that the motions were to proceed instead on an unopposed “no costs” basis.[^3]

[6] Turning initially to the first two motions, in my view the motion material filed by the plaintiff in each action supports a finding that the requested consolidation relief should be granted as requested, pursuant to Rule 6.01(1)(d) of the Rules of Civil Procedure. In particular:

a. All three alternative thresholds for such relief outlined in Rule 6.01(1) have been satisfied here. Without limiting the generality of the foregoing, the two proceedings obviously have questions of fact and law in common, the relief claimed in the two proceedings clearly arises out of the same transaction or occurrence, and allowing the two actions to proceed separately to trial would entail needless confusion, wasted expense and multiplicity of proceedings.

b. Effecting a consolidation by essentially rolling the first proceeding into the second, such that both will hereafter proceed under the rubric of London court file no. CV-20-100/2020, makes sense in the circumstances; e.g., insofar as that action was commenced first and apparently within the basic two-year limitation period, there appears to be no dispute that the previously “Unknown Property Management Company” and Courtland are one and the same entity, and litigation has been discontinued against the additional defendant previously added to the dispute by the second action.

[7] I therefore have finalized and signed the draft consolidation order accordingly.

[8] As for the third and final motion, (considered in the context of the now single consolidated action), in my view the plaintiff should be granted leave to amend his pleading as indicated, pursuant to Rules 5.04 and 26.01 of the Rules of Civil Procedure. Without limiting the generality of the foregoing: the amendments essentially correct the name of a party incorrectly named in the initial pleading, while eliminating now unnecessary aspects of the plaintiff’s two original pleadings, and the non-opposition to the requested relief strongly suggests that the remaining defendants themselves believe there is no resulting prejudice from the amendments incapable of being compensated for by costs or an adjournment – neither of which were requested.

[9] I therefore also have finalized and signed the draft order granting such leave.

[10] A copy of this endorsement and the consolidation order should be filed in both proceedings, after copies of the endorsement and both orders have been released to counsel.

“Mr. Justice I.F. Leach”

Justice I.F. Leach

Date: May 11, 2022

[^1]: Courtland apparently now shares this view.

[^2]: That established court practice did not afford plaintiff counsel an opportunity to provide a further indication to the court detailing the precise nature of the remaining defendants’ indicated non-opposition to the substantive relief being sought via the motions. However, subsequent correspondence sent to and/or filed with the court indicated and confirmed that the remaining defendants had indicated/confirmed their non-opposition to the motions without prejudice to the position of those defendants that the litigation herein is barred by worker’s compensation legislation, (a position currently being pursued via a pending application to the Workplace Safety and Insurance Appeals Tribunal), and on the understanding that their non-opposition to the motions did not represent acquiescence to the court’s jurisdiction over such matters.

[^3]: In that regard, I note that some form of notice from each responding party, stating that the party does not oppose the motion, (as well as a draft order), normally is required by Rule 37.12.1(3) before a motion may proceed in writing. In this case, the correspondence filed with the court did not contain any document from Brose expressly indicating such non-opposition. However, in addition to the filed correspondence indirectly confirming such non-opposition, (as confirmation of such non-opposition was circulated a number of times to counsel for Brose without counsel for Brose making any apparent objection in that regard), the circumstances here involve plaintiff counsel attending at motions court to indicate on behalf of the plaintiff and as agent for defence counsel that the motions now were proceeding on an unopposed basis, prior to the motions being thereafter converted by the court into motions that were to proceed in writing. In such circumstances, I think the potential concern addressed by Rule 37.12.1(3) accordingly has been satisfied.