COURT FILE NO.: CV-19-0005

DATE: 2022/12/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shawn Hamilton, Plaintiff

AND:

Joanne Vaughan, Defendant

BEFORE: Justice S.K. Stothart

COUNSEL: Counsel, for the Plaintiff

Joanne Vaughan, appearing on her own behalf

HEARD: December 6, 2022

ENDORSEMENT

[1] Today’s date was scheduled as an appointment to settle my orders dated June 8, 2022, June 28, 2022 and October 11, 2022. This appointment has been scheduled pursuant to Rule 59.04(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because the Defendant has not approved the draft order prepared by the Plaintiff.

History

[2] On June 8, 2022, I was scheduled to hear several motions in this matter. On that date only one motion proceeded, which was a motion by the Plaintiff seeking orders to have any reference to the contents of an e-mail exchange between he and his lawyer removed from the court record and to have the Defendant restrained from referencing those communications in the proceedings. I will refer to this as the Plaintiff’s “solicitor-client communication” motion.

[3] On consent of both parties, the Defendant’s motions to strike the pleadings, seeking injunctive relief and seeking to remove counsel for Mr. Hamilton from the record were adjourned sine die.

[4] On June 28, 2022, I released my reasons for decision with respect to the Plaintiff’s “solicitor-client communication” motion.

[5] On June 29, 2022, I released an endorsement inviting written submissions on the issue of costs related to the motion.

[6] On July 8, 2022, I received written submissions prepared by counsel for the Plaintiff. On July 20, 2022, I received written submissions prepared by counsel for the Defendant.

[7] On September 14, 2022, I received further correspondence from the Defendant, Ms. Vaughan, who was now representing herself, providing further submissions on the issue of costs.

[8] On September 16, 2022, the Defendant filed an anti-Slapp motion pursuant to Section 137.1 of the Courts of Justice Act, R.S.O. 1990.

[9] On October 11, 2022, I released my reasons for decision with respect to costs related to the a Plaintiff’s solicitor-client privilege motion and ordered that the Defendant pay costs to the Plaintiff in the amount of $6000 inclusive.

[10] On October 17, 2022, I received correspondence from Court Services Division advising that counsel for the Plaintiff wished to schedule an appearance before me with respect to settling a draft order.

[11] Various dates were canvassed between the parties and the court. There was some difficulty in scheduling a date due to my schedule.

[12] On October 25, 2022, the Defendant requested an additional two weeks to prepare written submissions. I granted this extension, and the date for the appointment was re-scheduled for December 6, 2022.

[13] At one point, when dates were being canvassed, issues arose with Ms. Vaughan’s availability. Given the delay in the matter and the difficulties with my schedule, I advised Court Services that if Ms. Vaughan was unable to attend in-person she could send written submissions to the court on “the issue of whether the order should be signed” in accordance with my endorsements.

[14] On November 23, 2022, the Plaintiff filed a “Responding Motion Record of the Plaintiff” and a copy of a draft order.

[15] On November 30, 2022, the court received further materials from the Defendant titled “Submissions Revoking Privilege” dated November 4, 2022; Affidavit of Responding party dated October 27, 2021; Book of Authorities of the Defendant/Respondent dated November 4, 2022; and Supplemental Affidavit pursuant to Written Submissions December 6, 2022, dated November 28, 2022.

[16] On December 6, 2022, after hearing submission on the issue of settling my orders, I provided the parties with the opportunity to provide further cases on the issues raised. On December 7, 2022, I received further cases from both the Defendant and the Plaintiff.

Position of parties

Position of the Defendant

[17] The Defendant submits that the Court should not proceed and settle the orders because she has filed an anti-Slapp motion pursuant to section 137.1 of the Courts of Justice Act, which is scheduled to proceed on January 13, 2023.

[18] The Defendant submits that pursuant to section 137.1 (5) of the Courts of Justice Act, where a motion under this section is made no further steps may be taken in the proceedings by any party until the motion, including any appeal of the motion, has been finally disposed of.

[19] The Defendant submits that settling orders constitutes a “further step in the proceedings” and as such cannot proceed at this time.

[20] The Defendant also wishes to challenge the correctness of my prior decision on the Plaintiff’s “solicitor-client communication” motion. She has provided further submissions on the issues that were raised in the motion. She submits that I can reconsider my decision pursuant to Rule 2.01(1)(a) and (b) of the Rules of Civil Procedure.

[21] The Defendant submits that there was a failure by the Plaintiff to follow Rule 76 of the Rules of Civil Procedure. As such, she submits that this provides me with the authority to re-visit my decisions pursuant to Rule 2.01(1)(b).

[22] In the alternative, the Defendant requests that I temporarily set-aside my decision until after the anti-Slapp motion is completed because she wishes to use the communications between the Plaintiff and his counsel, in support of her anti-Slapp motion.

[23] The Defendant further asks that I reconsider my decision with respect to costs and dispense with costs or order that they be determined at the conclusion of the Proceedings.

Position of the Plaintiff

[24] The Plaintiff submits that settling orders relates to prior steps in the proceedings, and such is not barred by section 137.1(5) of the Courts of Justice Act.

[25] The Plaintiff submits that Rule 2.01(1)(b) does not permit me to reconsider my decisions and that my decisions should be settled into orders.

ANALYSIS:

Formal Requisites for Judgements and Orders

[26] Any party or person affected by an order may prepare a draft order and send it to all parties who participated in the hearing for approval of its form and content as per Rule 59.03(1).

[27] An order must be in the prescribed form as set out in Rule 59.03(3)

[28] An order of the court is considered to have been issued after the order has been signed by the judge in accordance with the Rules and the registrar has dated and sealed the order with the seal of the court as per Rule 59.04(1).

[29] If approval of a draft order by the parties is not received, the person may obtain an appointment to have the order settled by the registrar, or if the registrar considers it necessary, by the person who made the order. When this occurs, notice of the appointment must be served on all parties and filed, with proof of service, at least seven days before the appointment date as per Rule 59.04(7).

[30] If the Judge who made the order is satisfied that the draft order reflects the order he/she made they may settle the order and sign it. Once an order is settled and signed, the registrar may date and seal the order with seal of the court.

Is the settlement of an order a “further step in the proceedings” as contemplated by section 137.1(5) of the Courts of Justice Act

[31] The jurisprudence surrounding what constitutes a further “step in the proceedings” is somewhat sparse given that the provisions in section 137.1 of the Courts of Justice Act are relatively new, having been enacted in 2015.

[32] In Boyer v. Callidus Capital Corporation, 2022 ONSC 3772 at para. 22, Justice J. Cavanagh described the purpose of section 137.1(5) as follows:

The prohibition on any further steps in a proceeding once an anti-SLAPP motion has been served prevents parties from engaging in extraneous litigation that may undermine the efficiency of the process established by section 137.1 or otherwise compound the mischief the anti-SLAPP provisions are designed to prevent.

[33] In Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48, at para. 13, M.L. Benotto J.A. referred to the effect of section 137.1(5) as “staying the underlying defamation action until the motion has been finally determined, including on appeal”.

[34] In my view the settlement of an order is not a “further step in the proceedings” as contemplated by section 137.1(5) of the Courts of Justice Act. Rather, the settlement process simply provides a process by which an order of the court, related to proceedings which have already been determined, may be issued.

[35] In this case my decision with respect to the Plaintiff’s motion regarding solicitor-client communications was released June 28, 2022, prior to the Defendant filing anti-Slapp motion.

[36] My costs decision was released on October 11, 2022, following the receipt of written submissions received prior to the filing of the anti-Slapp motion.

[37] Section 137.1(5) of the Courts of Justice Act states: “Once a motion under this section is made, no further steps may be taken in the proceedings by any party until the motion, including any appeal of the motion, has been finally disposed of”. The use of the word “further” step in the proceeding necessarily refers to any step in the proceeding that is taken after the Defendant files an anti-Slapp motion.

[38] I do not see how the issuance of an order that reflects a previously released decision frustrates the purpose of section 137.1. The issue between the parties has already been addressed by way of the court’s decision. The only issue to be determined at an appointment before the Justice is whether the draft order correctly reflects the orders made by the court in its previously released decision.

[39] As such, I am satisfied that the settlement of my orders can proceed.

[40] The Defendant advises that she has appealed my decisions. I note that section 6(1) and section 19 of the Courts of Justice Act provide that appeals to the Court of Appeal and Divisional Court, may lie from a “final order” of a judge of the Superior Court of Justice. The settling of my orders and their issuance in no way impacts the Defendant’s ability to appeal my orders. Indeed, it will likely assist with the appellate process.

Does Rule 2.01 of the Rules of Civil Procedure permit the court to re-visit its decisions

[41] Rule 2.01 of the Rules of Civil Procedure states:

2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.

[42] Ms. Vaughan relies on Rule 76, which relates to a mandatory simplified procedure for actions that are commenced in which the Plaintiff’s claim is for an amount of $200,000 or less exclusive of interest and costs. She points out that the Plaintiff has not complied with some of the provisions for simplified trials.

[43] In my view, the concerns raised by Ms. Vaughan related to Rule 76 are not such that I should resort to the steps outlined in Rule 2.01. Whether there has been non-compliance with Rule 76 or not, Rule 2.01 sets out that the failure to comply with the rules is an irregularity that does not render a step (such as a motion) a nullity.

[44] Further, Rule 2.01(b) states that “only where and as necessary in the interests of justice” may a court set aside a step (i.e. a motion). In this case, I find that the provisions as set out in Rule 76, which are designed to streamline simple proceedings, did not impact the manner in which the motion related to solicitor-client privilege proceeded.

[45] I received appropriate and detailed materials as part of the motion related to solicitor-client privilege. I am satisfied that both the Plaintiff and Defendant were well represented by their respective counsel, who both made thorough and able arguments on behalf of their clients and the issue was thoroughly addressed.

[46] I have also received appropriate and detailed submission with respect to the costs associated with the Plaintiffs “solicitor-client communication” motion. The Defendant provided thorough written submissions through her former counsel and then provided further written submissions on her own.

[47] Given the issues were fully and appropriately addressed I find that it is not necessary in the interest of justice to set aside my orders related to the motion.

Should the court temporarily suspend its decision so that Ms. Vaughan may use the communications as part of the anti-Slapp motion

[48] The Defendant requests that I temporarily set-aside my decision so that she can use the solicitor-client communications between the Plaintiff and his counsel as part of her anti-Slapp motion.

[49] At the time I rendered my decision, the Defendant had not filed an anti-Slapp motion. As such, I did not address whether the solicitor-client communications could be used in that motion. My decision only relates to the Plaintiff’s action and further steps in that proceeding.

[50] In my view, the issue of whether the solicitor-client communications can be used in the anti-Slapp motion is something that is more appropriately raised before the Judge hearing the anti-Slapp motion.

The order drafted by the Plaintiff

[51] The Plaintiff has drafted one order that incorporates the June 8, 2022 endorsement adjourning the Defendant’s motions, the June 28, 2022 decision with respect to solicitor-client communications and the October 11, 2022 decision with respect to costs.

[52] Given that endorsements were made on three separate dates and relate to three separate issues, they should be the subject of three orders. The Ontario Court of Appeal in Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 668 at para. 6, held that it is an error to place separate decisions into one order.

[53] Having reviewed the Plaintiff’s draft order, I approve of the wording used to reflect my endorsements. I have asked the Plaintiff to prepare three orders that contain the same wording. When I receive them I will sign them and they can be settled.

Costs

[54] As part of the appointment, I asked the parties to provide submissions on the issue of costs associated with this appointment.

[55] In my view it is fair and appropriate that the Defendant pay costs to the Plaintiff in the amount of $1,500, in a partial indemnity basis, forthwith. While the appointment process itself was not complicated, the issues raised by the Defendant added some complexity that required additional time for the Plaintiff to respond.

Justice S.K. Stothart

Date: December 19, 2022