Court File and Parties

COURT FILE NO.: CV-20-00642941

DATE: 20221013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SURENDRARAJ NAVARATNARAJAH, Plaintiff

– and –

FSB GROUP LTD., FSB INSURANCE LTD. AND FSB COMMERCIAL LTD., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, for the Plaintiff

Stephen Gleave and Richelle Pollard, for the Defendants

HEARD: October 13, 2022

CASE CONFERENCE

[1] Counsel met with me in order to schedule the next steps in the action.

[2] Each side has a motion that it proposes to bring.

[3] The Plaintiff wishes to amend the Statement of Claim in order to remove one of the Defendants who I indicated should be removed in my certification judgment. That is not controversial and on its own could be done without bring a new motion since the Defendants have not yet pleaded and a simple amendment to the Statement of Claim can be done as of right.

[4] In addition, the Plaintiff proposes amending the Statement of Claim in a more substantive way, adding unjust enrichment as a new cause of action. Defendants’ counsel object to this amendment on the basis that it would have formed an important part of the argument at the certification hearing as it adds a substantive element to the claim that may have changed the analysis of the common issues.

[5] While I am not in a position to say at a case conference whether the Defendants’ counsel are right or wrong about that, there is enough of an issue there to warrant a proper motion being argued. That motion, in turn, might impact on the certification ruling itself. I therefore am of the view that the Plaintiff cannot amend as of right in the way proposed by Plaintiff’s counsel, and directed Plaintiff’s counsel to bring a motion if they wish to amend their pleading in this way.

[6] Plaintiff’s counsel asked me to note for limitation purposes that they first requested that the pleading be amended to add this new cause of action on May 19, 2022. On that date they sent to my office a draft Order to be signed, on the view that pleadings had not yet closed and a formal motion was therefore not necessary. While I have now directed that the pleading amendment be put forward by way of a formal motion, it is fair to note that on May 19, 2022 the Plaintiff sought the amendment and that consideration of it was put off until today due to my own court calendar in scheduling this case conference.

[7] Given the apparently very low number of class members, Defendants’ counsel propose bringing a motion to decertify the action. They wish to schedule that hearing at the earliest convenient time. I discussed dates with all counsel and have determined that the Defendants’ decertification motion will be argued for ½ day in court on April 27, 2023.

[8] After some discussion, Plaintiffs’ counsel concluded that they would wait until after the Defendants’ motion to bring their motion to amend their pleading. It makes sense to wait. If the Defendants are successful (which, needless to say but I’ll say it anyway, I do not pre-judge here), the claim will be back to being an individual one and the Statement of Claim will be amendable as of right before pleadings close.

[9] Defendants’ counsel also raises the point that one of the opt-out forms submitted by a class member is incomplete – it is lacking a witness signature and was submitted without an accompanying piece of identification for the class member. Plaintiffs’ counsel wrote to this person immediately after receiving the incomplete submission advising him that they needed it to be properly completed, but have not heard back. I advised Plaintiff’s counsel to follow up with him again, and to confer with Defendants’ counsel to ensure that they have the most effective mailing address for the individual. That individual’s status (whether in or out of the action) can be addressed at the Defendant’s decertification motion if it is still relevant.

[10] Counsel are to confer with each other to work out a mutually acceptable schedule for the exchange of materials, etc. leading up to the Defendants’ April 27, 2023 motion.

Date: October 13, 2022 Morgan J.