COURT FILE NO.: CV-21-549-00
DATE: 2022 12 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NORMAN TOWING O/A 7344508 CANADA INC.
A.J. Kania, for the Plaintiff/Defendants by Counterclaim
Plaintiff/Defendant by Counterclaim
- and -
RIORDAN LEASING INC.
K.D. Reason, for the Defendant/ Plaintiff by Counterclaim
Defendant/Plaintiff by Counterclaim
- and -
NARMAN ABRI also known as NORMAN ABBRY
Defendant by Counterclaim
HEARD: December 16th, 2022
REASONS FOR JUDGMENT
LEMAY J
[1] The Plaintiff, Norman Towing, leased some vehicles from the Defendant Riordan. The leases ended up in default and Riordan exercised its rights under the lease agreements. An action was commenced by Norman on or about February 11th, 2021. Riordan prepared a Defence and Counterclaim against Norman. It also claimed against Norman’s principal, Mr. Abri, for amounts owing under the lease agreements. That Statement of Defence and Counterclaim was filed with the Court office in June of 2021, but never issued by the Court office.
[2] Riordan obtained default judgment against Mr. Abri and Norman on their counterclaim. Norman has moved to set that default judgment aside. In addition, given that the claim was never issued by the Court office, Norman and Mr. Abri argue that the claim is a nullity. This argument, if successful, could put Riordan in a position where the limitations period had passed and they could not bring their counterclaim. Therefore, there is in essence a cross-motion brought by Riordan for a nunc pro tunc order confirming that the Statement of Defence and Counterclaim were issued by the Court on June 18th, 2021.
[3] The order setting aside the default judgment was unopposed and is granted. I am also granting an Order, nunc pro tunc, deeming that the Statement of Defence and Counterclaim was issued as of June 18th, 2021. Strictly speaking, I note that it is not necessary to apply the nunc pro tunc order to the Statement of Defence because it did not need to be issued.
Background
a) The Parties and the Relationship
[4] The Plaintiff is Norman Towing, o/a 7344508 Canada Inc. (“Norman”). It is owned by Mr. Narman Abri, who is one of the Defendants to the counterclaim. I will refer to them collectively as the Plaintiff.
[5] The Defendant, Riordan Leasing Inc., is an equipment financing company that carries on business in the Province of Ontario. It is the Plaintiff in the counterclaim against Mr. Abri.
[6] The original action in this matter arose from five leases that Norman Towing and Mr. Abri signed with Riordan back in 2017. These were for five separate tow trucks used in Norman’s business. I understand that there were some issues in terms of payments once the COVID-19 pandemic began and that there were some deferrals of payments granted.
[7] However, there were issues with payments and payment plans throughout the summer of 2020. The parties dispute what happened during this time period and it is neither necessary nor appropriate for me to resolve that dispute on this motion. That is a matter for trial.
[8] In any event, in mid-August of 2020, Riordan exercised its powers under the lease agreements and seized the vehicles from Norman. They were subsequently sold although the Plaintiffs sought to have the vehicles returned to them.
[9] It is common ground that the sale of the vehicles was completed by September 14th, 2020 and that Riordan had determined that there was a shortfall owing by that date. It is this alleged shortfall that crystallized the counterclaim. Riordan advised Mr. Abri of the shortfall in early November of 2020.
b) The Procedural History of the Action
[10] As a result of the seizure and sale of these vehicles, Norman Towing brought an action (Court File No. CV-21-0549) against Riordan. This action claimed that the vehicles had been improperly seized and sold. The action also claimed loss of income and other damages as a result of the alleged improper sale.
[11] Counsel for Riordan had advised counsel for the Plaintiffs that they would be bringing a counterclaim on several occasions, both before and after June 1st, 2020. In the records before me, there is an Affidavit of Service confirming that the Statement of Defence and Counterclaim was served on Mr. Abri’s home. Mr. Abri’s Affidavit denies receiving the Statement of Defence and Counterclaim.
[12] However, the Affidavit of Service, commissioned at the time that the Statement of Defence and Counterclaim was served shows that the document was delivered to the address where Mr. Abri lived. It also showed that it was left with a woman by the name of “Masi”. Mr. Abri’s wife’s name is Masoumeh. As a result, the evidence suggests that the Statement of Defence and Counterclaim was at least left in the right place.
[13] It should be noted that the Statement of Defence and Counterclaim defended the action brought by Norman Towing and made a counterclaim as against Mr. Abri as a co-lessee. Rule 27.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 required that the claim be issued because Mr. Abri was not already a party to the action. It is common ground that the claim was never issued.
[14] On June 21st, 2021, counsel for Riordan asked counsel for the Plaintiffs whether he would accept service of the Statement of Defence and Counterclaim. I am not aware of either a reply to that e-mail or any further communication between counsel about the Statement of Defence and Counterclaim. In particular, there is nothing in the motion record that suggests to me that counsel for Riordan advised counsel for the Plaintiffs that they would either be requisitioning a noting in default or seeking default judgment.
[15] Mr. Abri was noted in default on July 21st, 2021 and several attempts were made by Riordan to have default judgment signed by the Registrar. Ultimately, the Registrar advised Riordan that a default judgment motion had to be brought. Said motion was brought. The materials were served on Mr. Abri at his residence, but Mr. Abri had moved between July and October of 2021. The materials were not provided to counsel for the Plaintiffs.
[16] Default judgment on the Counterclaim was granted by Harris J. on January 6th, 2022. The default judgment did not make any mention of the Plaintiffs’ claim, but just addressed the counterclaim. The value of the judgment was approximately $65,000.00.
[17] On April 5th, 2022, Mr. Abri was served with a further claim in a different action (Court File No. CV-22-0377) in which a CPL had been previously registered against his property. The original action was started in Brampton. This subsequent action was started in London. The claim also confirmed that there was judgment owing by Mr. Abri and that he had moved properties and put the title of the new property in his wife’s name to avoid paying his debts to Riordan.
[18] Mr. Abri defended this action by way of a Statement of Defence on May 18th, 2022 and specifically denied Riordan’s claim that he had been personally served with the Statement of Defence and Counterclaim on June 1st, 2021. I have dealt with that history at paragraphs 11 and 12, above.
[19] Counsel for the Plaintiffs advised Riordan’s counsel that he would be bringing a motion to set aside the default judgment very shortly after the April 5th, 2022 claim came to his attention. Indeed, he started to seek motions dates in May of 2022. The motion was ultimately not brought until November of 2022, in part because of delays in scheduling motions in Brampton and in part for reasons beyond the control of either party.
c) The Proceedings Before Me
[20] This matter originally came before me on November 18th, 2022 as part of a regular motions list. At that point, counsel for the Plaintiffs was seeking an Order to set aside the default judgment. The issue of whether the judgment was a nullity because the Statement of Defence and Counterclaim had not been issued by the Court office was raised on that date. Counsel for Riordan (Mr. Masterson) was not aware that this issue was being raised until November 18th, 2022. At that time, Mr. Masterson was asked to confirm whether the claim had been issued and he ultimately advised that it had not been issued.
[21] I flagged for the parties the potential Limitations Act 2002, S.O. 2002, c. 24 Sched. B issue that could arise if I acceded to Plaintiffs’ counsel’s submission that the default judgment was a nullity. I provided the parties, and particularly Mr. Masterson, with an adjournment to consider their positions. A further hearing to speak to the matter was set for December 9th, 2022.
[22] On December 9th, 2022, Mr. Reason and Mr. Masterson both attended and advised that they were seeking to bring a motion to have the Statement of Defence and Counterclaim deemed to be issued as of June 18th, 2021. They had prepared, served and filed their materials in advance of the December 9th, 2022 hearing. Mr. Kania indicated that he would be opposing this motion and arguing that there should be no nunc pro tunc order as the Court did not have jurisdiction to make such an Order.
[23] Given the significance of this issue to the litigation and the fact that the litigation has been stalled while this matter was addressed, I determined that a hearing should be held as promptly as possible. I confirmed that the parties had all the factual materials that they wished to have before me and set a timetable for the exchange of factums. I then heard the merits of the motion on December 16th, 2022.
Positions of the Parties
[24] Mr. Abri argues that he was never properly served with the Statement of Defence and Counterclaim. Mr. Abri further argues that the Statement of Defence and Counterclaim is a nullity because it was never issued by the Court office. On that basis, Mr. Abri argues that the noting in default should be set aside.
[25] Riordan originally opposed the setting aside of the noting in default. They do not now oppose this relief and acknowledge that the claim was never issued by the Court office. As a result, Riordan now seeks an order from the Court, nunc pro tunc, confirming that the Statement of Claim was issued by the Court on June 18th, 2021.
[26] Mr. Abri and Norman argue that the order sought by Riordan should be denied because of the passage of the limitations period under the Limitations Act, 2002. It is common ground that there was a default in the payment of the leases on September 14th, 2020, which would mean that the limitations period would have expired on September 14th, 2022, before Riordan sought the relief in this motion.
Issues
[27] Based on the foregoing, there are two issues that present themselves, as follows:
a) Whether the noting in default should be set aside.
b) Whether the Court should issue an order, nunc pro tunc, confirming that the Statement of Defence and Counterclaim was issued effective June 18th, 2021.
[28] Riordan has not sought an Order granting it an extension of time to serve the Statement of Defence and Counterclaim on Mr. Abri and on Norman. On the day before this motion was scheduled, I directed the parties to consider the Court of Appeal’s decision in Chiarelli v. Wiens 2000 CanLII 3904, 46 O.R. (3d) 780. Although the decision is briefly mentioned in Riordan’s reply factum, I had wanted the parties to focus on what would happen next if I granted the Order that Riordan sought.
[29] Based on our discussions, I understood that Riordan would want me to validate service and then extend the time for Mr. Abri and Norman to serve and file their pleadings. The Plaintiffs were opposed to me even considering this issue as they were of the view that the nunc pro tunc order should not be granted. I will address this issue more fully below.
Issue #1- Default Judgment
[30] The test for setting aside a default judgment is set out by Laskin J.A. in Intact Insurance Company v. Kisel 2015 ONCA 205. That five part test is as follows:
a) Whether the motion was brought promptly after the defaulting party learned of the default judgment.
b) Whether the defaulting party has a plausible excuse or explanation for the default.
c) Whether the defaulting party has an arguable case on the merits.
d) The potential prejudice to the defaulting party and the potential prejudice to the other party should the motion be allowed.
e) The effect of any order the Court might make on the overall integrity of the administration of justice.
[31] Riordan is not opposed to the setting aside of the default judgment. The relief sought by the Plaintiffs must be granted because the counterclaim was never issued under Rule 27.03 and, therefore, there was no basis for the Court to grant the default judgment. In any event, however, I am satisfied that the test for granting a default judgment would otherwise have been met. Mr. Abri moved promptly, there is a reasonable explanation for the default, there is an arguable case on the merits and the prejudice to Mr. Abri far outweighs the prejudice to Riordan.
[32] On the final point, I would note that Mr. Kania was involved in this case before the noting in default or the default judgment were sought. I did not see any attempts to advise Mr. Kania that default judgment was being sought. Where parties have counsel involved in the file, it enhances the administration of justice when counsel are notified that default is being pursued before it is pursued. It is another significant reason that default judgment would have been set aside in this case.
Issue #2- The Issuance of the Statement of Defence and Counterclaim
[33] The Statement of Defence and Counterclaim was filed with the Court office on June 18th, 2021. It was not, however, issued. As described at paragraph 13, it had to be issued because the Counterclaim added a new party, Mr. Abri, to the action. Often, counterclaims do not need to be issued by the Court office because they do not involve new parties. The nunc pro tunc order is sought in respect of issuing the Counterclaim and not in terms of filing either the Counterclaim or the Statement of Defence.
[34] There is no real dispute that Riordan’s counterclaim for a deficiency crystallized when the vehicles were sold on or about September 14th, 2020. Given that the claim was never issued, it would be statute barred if I did not grant an order nunc pro tunc. See Penn-Co Construction Canada (2003) Ltd. v. Constance First Lake Nation 2012 ONCA 430 at para 11, aff’g 2011 ONSC 5875.
[35] As a result of the passage of the limitations period, there is a great deal of complexity to the question of whether a nunc pro tunc order can be issued. It starts with a consideration of the Supreme Court’s decision in Canadian Imperial Bank of Commerce v. Green 2015 SCC 60, [2015] 3 S.C.R. 801.
[36] Counsel for the Plaintiff points to a number of decisions from both this Court and from the Court of Appeal that suggest that Green has a wide application and creates a bright line rule that there can be no nunc pro tunc orders after a limitations period is missed. As will be seen, I disagree with that analysis.
[37] The Green decision is actually a series of decisions that considered whether nunc pro tunc orders could be granted in class proceedings. The Supreme Court of Canada’s decisions are closely split on the various issues. The majority, however, starts with a consideration of the purpose of limitations periods, at paragraph 57:
[57] This Court has generally recognized that limitation periods have three purposes known as the certainty, evidentiary and diligence rationales: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at paras. 64-67, per McLachlin J.; M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at pp. 29-31, per La Forest J. Limitation periods serve “(1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”: P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at p. 123.
[38] The Court in Green goes on to say that there are circumstances where a nunc pro tunc order will not be available. As the Court observes at para. 94:
[94] This is because, as with all common law doctrines and rules, the inherent jurisdiction to grant nunc pro tunc orders is circumscribed by legislative intent. Given the long pedigree of the doctrine and of rule 59.01, to which I have referred, it has been held that the legislature is presumed to have contemplated the possibility of a nunc pro tunc order: McKenna, at para. 27; Parker, at pp. 286-87; New Alger Mines, at pp. 570‑71. However, nunc pro tunc orders will not be available if they are precluded by either the language or the purpose of a statute. None of the other equitable factors listed above, including the delay being caused by an act of the court, can be relied on to effectively circumvent or defeat the express will of the legislature.
[39] This passage clearly acknowledges that, if there is a statute that bars the issuance of a nunc pro tunc order, the Court must respect that statutory provision. The Plaintiffs go further, however, and say that this passage amounts to a bright line where the Court can never grant a nunc pro tunc order where a limitation period has passed.
[40] In support of this position, the Plaintiffs point to the decisions in both Thistle v.Schumilas 2020 ONCA 88 and Douglas v. Stan Fergusson Fuels Ltd. 2018 ONCA 192. The Plaintiffs rely on the following passage at paragraph 25 of Thistle:
[25] In circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date of the motion, which was already beyond the expiry of the limitation period. In Celestica, the plaintiffs did not file their motion for leave prior to the limitation period expiring. Accordingly, on that basis, the Supreme Court denied the granting of a nunc pro tunc order: Green, at para. 111.
[41] However, when this passage is examined closely, it illustrates the problem with the Plaintiffs’ assertion that there is a bright line test under Green. The problem is that, in this case, Riordan was ready to proceed on June 18th, 2021. When Riordan filed the claim with the Court on that date, it could have easily asked the Court to issue the claim and there would have been no impediment to the issuance of the claim. Thistle speaks to the need to bring a motion. Riordan did not need to bring a motion on June 18th, 2021 to have the claim issued.
[42] The case of Patkaciunas v. Economical Mutual Insurance Company 2021 ONSC 5945 is instructive in this regard. In Economical, the Plaintiff’s process server attended and asked that an action be issued on the last day of the limitations period. The clerk in the Registrar’s office who was required to process the claim declined to do so, as it was the end of the day. Dunphy J. held that Green was distinguishable and that the claim was properly brought within the limitations period, even though the claim was not actually issued until the day after the limitations period had expired.
[43] One of the key points of the Economical decision is the fact that the Plaintiff might have been ready to have the claim issued, but the Plaintiff was not ready to have the question of whether the claim should be issued argued. In this case, counsel for the Plaintiffs asserts that I should dismiss the request for a nunc pro tunc order because Riordan was not ready to argue the issue when the limitations period passed. I disagree.
[44] In this case, Riordan was ready to have its claim issued on June 18th, 2021. Unlike the bankruptcy cases invoked by the Plaintiffs, no leave was required of the Court to commence the Counterclaim. All that Riordan had to do was have the claim issued. It was an administrative step that would have been granted as a matter of course.
[45] Counsel points to the decision in Sax v. Aurora 2019 ONSC 3573 (Div. Ct.) where the Court stated:
[11] The decision of the Supreme Court in the CIBC Trilogy leaves no room for doubt that the doctrine of nunc pro tunc cannot be used to cure an expired limitation period and is not available where a motion seeking leave to bring a derivative action is filed after the expiry of the applicable limitation period.
[46] Again, this decision is distinguishable on the basis that, in Sax, a motion requiring leave had to be brought in order to permit the action to commence. In this case, all that Riordan had to do to commence the action against Mr. Abri was attend at the Court office (which they did) and ask that the action be issued. Instead of asking that the action be issued, they asked that it be filed.
[47] As a result, Riordan was ready to commence this action on June 18th, 2021. This brings me back to another passage in Green, where the Court discusses the factors that should be considered in granting a nunc pro tunc order. At para. 90, the majority states:
[90] In fact, beyond cases involving the death of a party or a slip, the courts have identified the following non-exhaustive factors in determining whether to exercise their inherent jurisdiction to grant such an order: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. (Citations omitted)
[48] As I have noted, the decision in Green is somewhat fractured because the Court was closely divided and came to different conclusions on the different fact scenarios that are encompassed in the Green decision. However, Cromwell J., who appears to have been in the majority on most issues, made the following observations (at paras. 140 and 141):
[140] The motion judge next turned to the fact that exercising his discretion would not undermine the purposes of limitation periods:
Third, extending the limitation period in this particular case would not do violence to the purposes of limitation periods, including the need of parties to order their affairs after reasonable periods of repose and to avoid evidence becoming stale or lost. The defendants have known of the action from an early stage and have mounted a full evidentiary response. The limitation period could have been extended without unfairness to the defendant and without impairing public confidence in the administration of justice. [para. 543]
[141] This is a proper consideration and I see no error in the motion judge’s reliance on it here. I would put the point more bluntly. Holding that the plaintiffs’ claim is irremediably statute-barred is to defeat that claim by allowing the defendants to take advantage of an after-the-fact “gotcha” — a technical defence, the application of which in this case does not further either the purpose of the limitation defence or reinforce public confidence in the administration of justice.
[49] In this case, the Plaintiffs seek to rely on a “gotcha” type of argument. They had notice of the Counterclaim within the limitations period. Indeed, part of their motion record includes their proposed defence to the counterclaim. It is difficult to argue that any of the purposes of limitations periods are triggered by Riordan’s failure to have the claim issued.
[50] This brings me specifically to the issue of the prejudice that the Plaintiffs might suffer if this action was to proceed. Mr. Kania argued that the passing of the limitations period meant that his clients were presumed to suffer from prejudice and that there was no evidence before the Court to rebut that prejudice. Mr. Kania is correct on the first point (see Noori v. Grewal 2011 ONSC 5213 at para 11 and Howell v. Jatheeskuar 2016 ONSC 1381 at para. 41).
[51] However, I disagree with Mr. Kania on the second point for two reasons. First, the underlying facts relating to Norman Towing’s claim and Riordan’s counterclaim against Mr. Abri are the same. As a result, it is not a significant step to infer that the documents and evidence for both claims will have a significant overlap. Second, and more importantly, Mr. Kania and Mr. Abri have both been aware of the Counterclaim and the fact that they will have to deal with it since before the limitations period expired. Each of these facts, on their own, are sufficient to infer that there is no prejudice.
[52] In addition, in this case, I must consider the Court’s decision in Dupuis v. W.O. Stinson & Son Ltd. 2013 ONSC 5648, aff’d 2014 ONSC 4317. In that decision, Master MacLeod (as he then was), stated (at paras 16 and 17):
[16] The first question then is whether granting the requested order is simply correcting an irregularity or whether it is in reality allowing an action to be commenced after the expiry of the limitation period. I suppose this is a somewhat circular argument. If the order is granted deeming the action commenced on November 1st when the originating process arrived at the court office then by definition the action was commenced in time (subject of course to any other limitation defences that might have been pleaded had the process been issued on November 1st). If it is not granted then the actions are out of time and the plaintiff will have to pursue a negligence claim against his lawyer.
[17] There is in reality no prejudice to the defendants if the relief is granted other than the windfall benefit of being able to capitalize on the error made by the plaintiff’s counsel. This is because compliance with the Limitations Act, 2002 simply requires that the action be started by the second anniversary of the date when the cause of action was discovered. Pursuant to Rule 14.08 (1) a plaintiff then has up to six months to serve the statement of claim and even that time can be extended. Thus in the ordinary course an action commenced on November 1st, 2012 might not have been served until well after this motion was brought.
[53] In this case, I conclude that Riordan was ready to proceed with its Counterclaim on June 18th, 2021. It had taken all necessary steps to prepare that claim, including attending at the Court office. All that remained to do was to issue the claim, rather than merely filing it as was done. Had Riordan asked for the claim to be issued, it would have been issued on June 18th, 2021.
[54] More importantly, had Court staff advised Riordan that the claim had to be issued, Riordan would have carried out that step. Unlike the bankruptcy or security cases relied upon by the Plaintiff, no leave was required. In the words of those cases, Riordan was “ready to argue” that its’s claim should be issued and the Court would have been required to grant that request as a matter of course. Therefore, when the facts in this case are considered, all of the factors in Green set out at paragraph 47 above favour granting the nunc pro tunc order.
[55] For the foregoing reasons, I have concluded that an order nunc pro tunc confirming that the Statement of Claim was issued effective June 18th, 2021 is to be granted. From that fact flows the fact that service on Mr. Abri personally cannot be validated from the service on June 1st, 2021. I cannot backdate the nunc pro tunc order to a date before when Riordan presented its’ counterclaim to the Court office and had it filed. Riordan was not ready to issue the claim on June 1st, 2021.
[56] This brings me to what other Orders should be made in this case. When the facts in Chiarelli are considered, it is clear that the Court will extend the time limits for serving a Statement of Claim (or a counterclaim) that has been issued where the delays (and potential prejudice) to the Defendant are far more significant than they are here. I also note that the record that would be before the Court on a motion to extend the time for serving the Statement of Defence and Counterclaim would likely look much like the record on this motion.
[57] Therefore, instead of requiring the parties to return to Court to address that issue, it seems appropriate to me to grant an Order extending the time for serving the Statement of Defence and Counterclaim. The analysis I have set out above on prejudice, diligence and the manner in which the Courts handled this claim apply equally in determining whether to extend the time limits for serving the pleading.
[58] The Defendant should be entitled to thirty (30) days from today’s date to serve the Statement of Defence and Counterclaim on Mr. Abri. Any further pleadings shall be served in accordance with the timelines under the Rules of Civil Procedure.
Conclusion and Costs
[59] For the foregoing reasons, I am making the following orders:
a) The default judgment issued by Harris J. on January 6th, 2022 is set aside.
b) I am exercising my discretion and making a nunc pro tunc order that the Statement of Defence and Counterclaim were issued by the Court office on June 18th, 2021. They have yet to be properly served.
c) The Defendant shall have thirty (30) days from today’s date to serve the Statement of Defence and Counterclaim on the Plaintiff. Given Mr. Kania’s involvement in this matter on behalf of both Mr. Abri and Norman, service on Mr. Kania’s office by facsimile or e-mail is sufficient.
d) Once the Statement of Defence and counterclaim are served, the standard time limits in the Rules apply for all further pleadings that either party may wish to serve.
[60] As a final matter, there is the fact that Riordan has brought a second action in London. The fact that I have set aside the default judgment means that this subsequent action would appear to be premature. However, I make no finding in that regard. I do observe that it would appear to be counterproductive for any other action between these parties over these trucks to be proceeding in a jurisdiction other than Brampton.
[61] In the event that Riordan is not prepared to consent to transfer the London action to Brampton, I remain seized to consider whether that action should be transferred. Although that is not a normal order, in this case there have been considerable delays while the procedural issues have been dealt with. In addition, the motions lists in Brampton face considerable delays. It is important to move the action forward, and I will be able to dispose of any motion to stay the London action or otherwise consolidate it with the Brampton action promptly.
[62] Although Riordan was successful on the nunc pro tunc motion and the motion to set aside the default judgment was done on consent, I was advised that Riordan was not seeking costs. I would encourage the parties to agree on the issue of costs.
[63] If the Plaintiffs are seeking costs, then they are to provide costs submissions by January 16th, 2023. Those costs submissions are to be no more than three (3) single-spaced pages exclusive of bills of cost, offers to settle and case-law.
[64] If the Plaintiffs seek costs, then Riordan shall have until January 26th, 2023 to provide responding costs submissions. Again, those submissions are to be no more than three (3) single-spaced pages exclusive of bills of cost, offers to settle and case-law.
[65] There are to be no reply costs submissions without my leave.
LEMAY J
Released: December 20, 2022
COURT FILE NO.: CV-21-549-00
DATE: 2022 12 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NORMAN TOWING O/A 7344508 CANADA INC.
Plaintiff/Defendant by Counterclaim
- and -
RIORDAN LEASING INC.
Defendant/Plaintiff by Counterclaim
- and -
NARMAN ABRI also known as NORMAN ABBRY
Defendant by Counterclaim
REASONS FOR JUDGMENT
LEMAY J
Released: December 20, 2022