Court File and Parties

COURT FILE NO.: CV-20-00001229-0000

DATE: 2022/06/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EMILY VICTORIA BIRKNER, Plaintiff

AND:

KAYLA TERESA BARR, Defendant

BEFORE: Justice I.F. Leach

COUNSEL: Nancy M. McAuley, for the Plaintiff No one appearing for the Defendant No one appearing for the non-party London Police Service

HEARD: In writing

Endorsement

[1] Before me is a motion brought in writing, by the Plaintiff, pursuant to Rules 30.10 and 37.12.1 of the Rules of Civil Procedure.

[2] In particular, the plaintiff has brought what is now commonly described in the vernacular as “a Wagg motion” - referring to the decision of our Court of Appeal in D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.) – seeking product of records from the London Police Service (“the LPS”) concerning the underlying accident giving rise to this proceeding,

[3] A review of the documents posted to the court’s electronic file folder for this matter shows that the plaintiff’s motion record was served on the defendant (via her insurer) and the LPS, and was originally returnable in regular motions court on May 13, 2022, when it came before Justice Nicholson.

[4] By that time, the LPS had not responded to the plaintiff’s motion and no one appeared for the LPS. It seems no one appeared for the defendant either; at least, there is no indication of that in the endorsement. Justice Nicholson, (making reference to the usual practice of the LPS responding to such motions and indicating non-opposition to them provided the resulting court order incorporates requested wording indicating certain limitations and permitting certain redactions), adjourned the motion to May 27, 2022, to see if the LPS would respond to the plaintiff’s motion. Justice Nicholson also indicated an expectation that the matter probably would wind up being dealt with as a basket motion; i.e., a motion heard in writing.

[5] The motion is now back before me in writing; i.e., as a basket motion.

[6] The electronic file folder now contains an amended draft order; one which now includes the usual words of qualification and limitation requested by the LPS in relation to such matters as a condition of its non-opposition to the motion.

[7] However, it seems that nothing further has been filed.

[8] In the circumstances, I am not yet in a position to deal with the matter as a rota basket motion, and accordingly have not yet finalized and signed the revised draft order. In particular:

a. In order for a motion to proceed in writing without oral argument, pursuant to Rule 37.12.1(1) of the Rules of Civil Procedure, it must be on consent, unopposed or brought without notice under subrule 37.07(2); i.e., in circumstances where “the nature of the motion or the circumstances render service of the notice of motion impractical or unnecessary”.

b. Pursuant to Rule 37.12.1(2), where the motion is on consent, the consent must be filed along with a draft order. No such consent has been filed.

c. Pursuant to Rule 37.12.1(3), where the motion is unopposed, a draft order must be accompanied by a notice from each responding party stating that the party does not oppose the motion. (The rule does not specify any required form of notice, which in practice allows those bringing such motions to simply file copies of emails or other correspondence confirming a respondent’s non-opposition to the motion.) No such notices have been filed.

d. This clearly is not a matter falling within Rule 37.07(2), as indicated by the plaintiff’s service of her motion record on the defendant and the LPS.

[9] It may be that, when the motion once again came forward for hearing in regular motions court, attending counsel was able to make a formal representation to the court on behalf of all parties, (e.g., acting as agent for non-attending parties), that the revised draft Order was to go on consent or without opposition – at which point the matter was diverted into the “basket motion” process. An endorsement made in the file, from a judge or registrar, indicating or confirming that to be the case, would have sufficed to process the order accordingly. However, in this case, there is no such endorsement in the file. (The only endorsement in the court’s electronic file for this matter is the one made by Justice Nicholson on May 13, 2022.)

[10] In the circumstances, I am left with a motion presented for a hearing in writing in respect of which the material filed is insufficient to allow it to proceed pursuant to Rule 37.12.1(1) of the Rules of Civil Procedure.

[11] The plaintiff accordingly needs to file something further, (i.e., an appropriate consent executed on behalf of the plaintiff, defendant and LPS to the making of the requested order, or some form of notice from the defendant and from the LPS indicating non-opposition to making of the revised draft Order), before the matter may be dealt with in writing.

[12] In the future, counsel attending at regular motions court to indicate that a requested order is to go on the consent of all concerned, or on an unopposed basis, ideally should file a formal consent executed on behalf of all concerned, or the required notice of non-opposition from each respondent to the motion. Failing that, attending counsel should ask the presiding registrar or judge, before the matter is diverted to the “basket motion” process, to make an endorsement confirming counsel’s representation on behalf of all concerned that the requested order is to go on consent or on an unopposed basis.

[13] Perhaps it would go without saying, but I am not seized of this matter. If and when the plaintiff files something further and asks for the motion to be submitted again in writing, it may be placed before any judge.

“Justice I.F. Leach”

Justice I.F. Leach

Date: June 4, 2022