Court File and Parties

COURT FILE NO.: CV-20-634823 DATE: 2023-01-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Craig Leask, Respondent – and – Homewood Health Centre Inc., Homewood Health Inc., Paul Obermeyer and Dr. Carlos Lalonde, Appellants

Counsel: Michael Rotondo, for the Respondent Valerie Wise, for the Appellants, Homewood Health Centre Inc., Homewood Health Inc. and Paul Obermeyer Trevor Fisher, for the Respondent Dr. Carlos Lalonde

HEARD: July 12, 2022

A. P. RAMSAY J.

REASONS FOR DECISION

A. Overview

[1] This action arises out of the provision of private mental health care services by the appellants to the respondent. The respondent alleges that the appellants made false representations about aftercare services. The respondent alleges that he sustained both psychological and other damage.

[2] The respondent commenced this action under the simplified procedure. The parties had agreed on a schedule to complete the discoveries of all parties. The respondent took five hours to complete oral discoveries, two hours more than the three-hour limit for simplified actions. The respondent then insisted that the adverse parties adhere to the three-hour time limit on discovery for simplified actions.

[3] The appellants brought a motion for leave to examine the respondent’s spouse and father (both non-parties) and to extend the time to complete the discoveries. Though the Associate Judge noted that she would have granted the motion, she dismissed it on the basis that she lacked discretion to grant the relief sought. Despite the appellants not being entirely successful on the motion, she awarded costs to them. One of the co-defendants had brought a companion motion for the same relief, which did not proceed, as they agreed to be bound by the findings in the appellants’ motion. The Associate Judge declined to award costs to or against them for the abandoned motion.

B. Nature of the Appeal and Cross Appeal

[4] The appellants, Homewood Health Centre Inc., Homewood Health Inc. and Paul Obermeyer (“the appellants”) appeal the interlocutory order of Associate Justice Jolley dated September 22, 2021, dismissing the appellants’ motion to extend the time limit prescribed by r. 76.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for oral examination for discovery. The appellants ask that the Order be set aside and ask this court to exercise its discretion under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to extend the appellants’ time under r. 76.04(2) to complete oral examination for discovery, and grant the appellants leave under r. 31.10 of the Rules to examine for discovery the non-parties Donald Leask and Alan Hurst each for a further 60 minutes.

[5] The respondent delivered a cross appeal seeking a gamut of relief, including an order prohibiting examination of the non-parties, costs of the abandoned motion of Dr. Carlos Lalonde, and an order setting aside the costs awarded to the appellants. The Notice of Appeal also included relief to quash the appeal, which was not argued, and appeared to have been abandoned.

C. Issues to be Determined on Appeal

[6] The issues raised on this appeal are:

i. What is the standard of review for an appeal of a decision of an Associate Judge on a question of law, with respect to discretionary orders involving mixed questions of fact and law, and on the orders as to costs? ii. Did the Associate Judge err in concluding that she had no discretion to extend the time for oral discovery under r. 76? iii. Did the Associate Judge err in concluding that the appellants met the test to examine the non-parties? iv. Should the costs award in relation to the abandoned motion of Dr. Lalonde be set aside? v. Should the costs awarded to the appellants be set aside?

D. Standard of Review

[7] An appeal from a decision of an Associate Judge is not a rehearing. On questions of fact and mixed fact and law, deference applies, and the role of the reviewing court is limited. The standard of review is palpable and overriding error, unless there is an extricable question of law: see Zeitoun v. Economical Insurance Group, [2008] 56 C.P.C. (6th) 191 (Div. Ct.), aff’d 2009 ONCA 415, 96 O.R. (3d) 639, at para. 1; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-18; 26-37. An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence: Zeitoun v. Economical Insurance Group, 2009 ONCA 415, 96 O.R. (3d) 639. On questions of law, the correctness standard applies: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 28; Gomommy Software.com Inc. v. Blackmont Capital Inc., 2014 ONSC 2478, 319 O.A.C. 204, at paras 43-45; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401.

E. Disposition

[8] For the reasons below the order dismissing the appellants’ motion to extend the time for oral discoveries under r. 76 is set aside. The appellants are at liberty to schedule a case conference with the Associate Judge who may make any order, that is just in the circumstances, regarding the length of time for the oral discoveries of the non-parties and set any timetable that may be appropriate to avoid further delay.

[9] For the reasons below, the cross appeal is dismissed in its entirety.

F. Analysis

[10] The Associate Judge dismissed the appellants’ motion, though she indicated that she would have granted it but for the time limitation. One of the key issues on this appeal is whether the Associate Judge erred in concluding that she had no discretion to extend for a party to complete oral discovery in a simplified procedure action.

[11] A question about procedure, the rules of court or jurisdictional rules are questions of law: Robert B. White, Q.C., and The Honourable Joseph J. Stratton, Q.C., The Appeal Book (Aurora: Canada Law Book Inc., 1999) at p. 32; Canadian National Railway Co. v. Bell Telephone Co., [1939] S.C.R. 308; Canada (Director of Investigation & Research) v. Southam, [1997] 1 S.C.R. 748 at para. 35. The standard of review is correctness.

[12] The respondent examined the appellants on November 23, 2020. The Associate Judge found that respondent’s counsel examined the respondents for over five hours, without objection from the defendants.

[13] At paragraph 8 of her Reasons, she stated:

However, when the defendants examined the plaintiff for discovery on 5 February 2021, the plaintiff ended the examination for discovery just shy of the three hour mark on the basis that time had expired. The plaintiff did not take this position at any time before February 5 or even at the commencement of the discovery that morning so that counsel could plan their questioning accordingly. Nor did he take into account that defendants’ counsel extended him the courtesy of well exceeding his time for the examination of the defendants. While he noted at the conclusion of his client’s examination that the defendants had been “very very nice” in allowing him to examine their clients beyond what was strictly allowed, he was not prepared to extend the same courtesy.

[14] She noted that counsel for the respondent had no explanation for his conduct other than his strict reliance on rule 76.04(2) and his indication that his client was not prepared to voluntarily continue longer than three hours once he was advised that he did not have to. She commented that: “Conducting litigation in this way seems sharp, to say the least.” She indicated that “the court did not have the discretion to extend the simplified procedure time limits even when counsel have behaved in his manner”. She noted that unlike r. 31.05.1, r. 76.04(2) does not provide the court with the discretion to grant leave to extend the time limits for oral discovery.

[15] At paragraphs 10 – 11 of her decision, the Associate Judge stated:

Unfortunately, I find that the court does not have the discretion to extend the simplified procedure time limits even when counsel have behaved in his manner. While the rules are to be construed to secure the just determination of the matters in dispute and compliance may be waived in the interest of justice, rule 76.04(2) does not provide the court with leave to extend the time limits, in direct contrast with rule 31.05.1. The court in Gibbons v. York Fire & Casualty Insurance Co. (1997) 47 O.T.C. 200 dealt with a similar issue. At that time, rule 76 permitted no discovery and the defendant brought a motion under rule 2.03 to permit an examination. The court held:

“I do not see that justice is compromised by the streamlined procedures of R.76 … If so, then many parties in many cases under R.76 would want discovery. Neither do I see this as amenable to inherent jurisdiction since the Rules here are quite specific as to this present case coming under the Simplified Procedure and thus there is no gap to be filled by inherent jurisdiction.”

This is in accord with the policy behind simplified procedure that these matters are to be expediently and cost efficiently determined. As noted in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paragraph 254.

As a result there remains no time for the defendants to examine the non-parties.

[16] Subrule 76.04(2) provides as follows:

(2) Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examinations, regardless of the number of parties or other persons to be examined.

[17] Rule 31.05.1 sets the time limit for examinations for discovery at seven hours “except with the consent of the parties or with leave of the court”. Accordingly, the seven-hour time limit for each party to complete oral discovery for actions proceeding under the ordinary proceedings may be varied and extended on the consent of the parties or with leave (order) of the court. There is no equivalent language in r. 76, and arguably, this may be consistent with the objectives of r. 76 to provide a timely and cost-effective means for actions to proceed through the system. The Associate Judge, noting the absence of the discretionary language, concluded that she could not grant the relief sought by the appellants.

[18] The appellants submit that the Associate Judge’s reliance upon the 1997 General Division case of McDermid J. in Gibbons v. York Fire & Casualty Insurance Co. (1997), 47 O.T.C. 200 (Ct. J. (Gen. Div.)) was misplaced as the parties had no right of oral discovery under the simplified procedure regime at that time and as a result, the court would have had to create such a process were it to grant the relief sought. The appellants submit that they are not relying on the court’s inherent jurisdiction to extend the time for oral discoveries, but rather the discretion granted to the court under the rules of general application. In this respect, the appellants rely on rr. 1.04, 1.05, 2.03 and 3.02 in support of their position that the court has jurisdiction to extend the time for oral examination for discovery under r. 76.04(2). The appellants submit that the Associate Judge failed to consider the fact that r. 76 does not exclude the application of the “General Matters” section which includes rr. 1, 2, and 3. They further submit that she failed to address the court’s discretion under those Rules in her reasons or explain why that discretion could not be exercised. They argue that she erred in not exercising her discretion under the general rules and had she done so, she would have granted the appellants leave to examine the parties.

[19] The respondent submits that the Associate Justice properly exercised her discretion not to extend the time for oral discovery as this remedy was not available to her. The respondent argues that r. 76.04(2) has mandatory language which stipulates that no party, regardless of the number of parties to be examined, can exceed the three-hour time limit. The respondent submits that r. 31.05(01), which is available for ordinary actions, is also not available to extend the time.

[20] In Gibbons, McDermid J. concluded that r. 76 is not amenable to inherent jurisdiction because the rule is “quite specific” and there “is no gap to be filled by inherent jurisdiction.” The appellants submit that they are not relying on the court’s inherent jurisdiction to extend the time for oral discovery, but rather the discretion granted to the court under the Rules of general application, above.

[21] Associate Judges do not have inherent jurisdiction. While it is unclear what aspect of Gibbons the Associate Judge was relying on, I do not take her reference to the passage to suggest that they do have inherent jurisdiction. Regardless, the question is not whether there is a gap in the Rule that would permit the court to exercise inherent jurisdiction, but rather, if the Rule is silent on the question of varying or extending the time for oral discovery, whether the court may resort to the general Rules being relied upon by the appellants to do so in appropriate circumstances.

[22] The respondent argues that in paragraph 1 of her Decision, the Associate Judge referred to the various rules under which the motion was brought. Although r. 3.20 of the Rules of Civil Procedure is not mentioned in the preamble, the respondent indicates in his factum that she also dealt with the subrule at the hearing.

[23] Throughout the oral submissions, counsel for the respondent argued that the Associate Judge had discretionary authority, but counsel did not address, in any meaningful way, whether the Associate Judge had discretion, by virtue of r. 3.02 of the Rules of Civil Procedure (the general rules), to extend the time limitation imposed by r. 76.04(2). The respondent relied on Giannone v. Weinberg (C.A.), [1989] 68 O.R. (2nd) 767 (C.A.); Onex Corporation et al. v. American Home Insurance et al., [2009] 100 O.R. (3d) 313 (S.C.); Bondy-Rafael v. Potrebic, 2015 ONSC 3655, 128 O.R. (3d) 767 (Div. Ct.), and other cases dealing with r. 2.03. In my view, the cases relied upon by the respondent are distinguishable.

[24] The cases referred to in the respondent’s factum and during the oral submission of counsel involved a consideration of r. 2.03 and not r. 3.02. While r. 2.03 deals with the courts power to dispense with compliance with any rule, r. 3.02 deals specifically with the court’s discretion to extend or abridge time. Rule 2.03 provides that the Court may “where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”

[25] I agree with the appellants that the lines of cases relied upon by the respondent dealing with discoveries before r. 76 provided for any right of discovery are distinguishable. To grant a party the right to discovery would effectively have resulted in the court ignoring the prohibition against oral discovery imposed by the regulation (the Rules). Under the current regime, the right exists, subject to time limits. Rule 76.04(2) uses the mandatory language “shall”. Unlike r. 31.05, which applies to actions proceeding under the ordinary stream, r. 76 does not contain any provision to extend the time for oral discovery, a point underlined by the Associate Judge.

[26] In Giannone, the issue related to the discount rate of 2.5% which the trial judge applied to the award of damages in accordance with r. 53.09. In that case, the court found it unnecessary to consider the application of r. 2.03, since justice was best served through compliance with r. 53.09.

[27] As for the Onex decision, the respondent relies on the comments made by the motions judge that rr. 1.04 and 2.03 are “not mandatory but permissive” and rule 2.03 is typically used to dispense with compliance with a technical breach, such as service or a filing deadline: see Onex, at para. 17. However, in quoting Belobaba J., the respondent relies only on part of his comments. The comments must be read in context. In fact, Belobaba J. stated that a party could not use r. 2.03 to resurrect a repealed provision or dispense with a new provision of the Rules. The comment, in context, appears to speak to the effect of an amendment to the Rules (regulation) which is procedural – that is to say, when does the amendment take effect. At paragraph 15, he stated:

Rule 2.03 gives the court the discretion to "dispense with compliance with any rule at any time" if it is necessary to do so in the interest of justice. Typically, this power is used to overlook a litigant's technical breach of a service or filing deadline or other instance of non-compliance where it is just to do so. Rule 2.03 does not provide any additional power that would allow the court to dispense with a newly enacted rule and restore or reactivate a repealed provision.

[28] The respondent also relies on Bondy-Rafael. The respondent argues that in Bondy-Rafael, the court held that r. 2.03 does not provide a court with discretion to dispense with compliance “in the face of a rule that provides the contrary”. In that case, the issue that the Divisional Court had to grapple with was whether a judge still had inherent jurisdiction to order bifurcation or whether that power was limited by the wording of r. 6.1.01 of the Rules, the latter of which required the consent of the parties. The Divisional Court held that the court had discretion to bifurcate the proceeding, but the consent of the parties was a precondition. In my view, the case is distinguishable. The court’s discretion was fettered by the requirement under the Rule that the party’s consent was required. A judge therefore no longer had unfettered inherent jurisdiction. In any event, as previously stated, Associate Judges do not have inherent jurisdiction. And, nowhere in r. 76, does it indicate that the consent of the parties is required, nor is there any exemption of r. 2.03.

[29] On the facts before the court, there is no suggestion that there is non-compliance by the appellants with the rules, or irregularity for which the appellants are seeking relief from the court. In the appropriate case, this Rule may well be available to relieve against non-compliance or dispense with the time requirement where there is imperfect, irregular or non-compliance with r. 76.04(2) which does not exclude its application.

[30] In Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, the Ontario Court of Appeal indicated that the court may resort to r. 2.03 to extend time for compliance, where the language of the rule under review, does not exempt its application. In Wellwood, the moving party failed to serve a notice of motion to set aside an order dismissing an action under r. 37.14 forthwith and the first available hearing dates were not named. The plaintiff had scheduled a motion to set aside but had not proceeded with the motion on any of the scheduled dates for the motion. After the motion was renewed, the Associate Judge refused to extend the time under r. 37.14 (1) on the basis that she did not have discretion to relieve against the requirement under the Rule. Speaking for the majority, Cronk J.A. noted, that r. 2.03 provided the court with a general discretion to relieve against the time requirements of any rule. At paras. 33 -34 she stated:

Rule 2.03 is clear and unambiguous. To repeat, it states: "The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time" (emphasis added).

This rule provides the court with a general discretion to relieve against the time requirements of any of the Rules, at any stage of a proceeding, if one essential precondition is satisfied: the court must first conclude that such relief is necessary in the interest of justice. Nothing in the language of rule 37.14(1) exempts it from what the Divisional Court judge aptly described [at para. 49] as "the overarching discretion afforded to the court by rule 2.03".

[31] It is clear to the court that in the present case, the Associate Judge considered the rules and was alive to the principles favoured by rr. 1.04 and 2.03 when she stated: “While the rules are to be construed to secure the just determination of the matters in dispute and compliance may be waived in the interest of justice, rule 76.04(2) does not provide the court with leave to extend the time limits…”.

[32] The parties referred the court to National Council of Canadian Muslims v. Harper, 2015 ONSC 7185. In that case, the defendants brought a motion to extend the time for the oral examination for discovery of the plaintiff from the two-hour time limit at that time to 21 hours in an action proceeding under the simplified procedure, and also sought an order that the plaintiff deliver a further and better affidavit of documents. I agree with the appellants that this case turned on the facts. Although Sheard J. noted that the same logic in Gibbons applies under the current Rule, she made no determination that the court lacked discretion to extend time for oral discoveries but was of the view that two hours may be sufficient after documentary discovery. She stated, at para. 97: “Further, in view of the documentary production orders made above, it is far from clear that after documentary production the defendants would need more than two hours to complete the examination for discovery of the plaintiff. Accordingly, I dismiss the defendants’ motion for an extension of the time for an oral examination of the plaintiff.”

[33] On this appeal, the appellants also rely upon r. 3.02 though it appears nowhere in the Associate Judge’s Decision. Rule 3.02 is the default rule for the general extension or abridgement of time. It would have been obvious to the court that it should have been considered even if the parties did not bring it to the court’s attention. The respondent in his factum indicates that it was dealt with by the Associate Judge. In his factum, the respondent states that although the appellants also cite r. 3.02, it is difficult to conceive how a general discretionary rule to abridge or extend a time could be used to lengthen the time limit where r. 2.03 would be unavailable in the circumstances. The court disagrees. R. 2.03 and 3.02 are not mutually exclusive.

[34] Rule 3.02 appears under the heading “Extension or Abridgment” and beside the heading “General Powers of Court”. The text reads:

Extension or Abridgment

3.02 General Powers of Court - (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. R.R.O. 1990, Reg. 194, r. 3.02 (1).

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

[35] Rule 3.02 has been in existence for many decades. In MacMaster v. Labombards Chatham Ltd., [1985] 50 O.R. (2d) 775 (H.C.), aff’d , [1985] 54 O.R. (2d) 502 (H.C.), referring to both r. 2.03 and 3.02, the court noted, at para. 21:

The above two Rules, therefore, are operative and enpowering in nature to give the Court discretion to preclude the overly rigid application of the Rules where it would be inappropriate and, in a practical sense, to ensure that the trial or resolution of the litigation is to be of primary concern rather than tactical advantage. The discretion given to the Court must, of course, be exercised judicially and based on appropriate material.

[36] The motion judge in MacMaster went on to state, at para. 27: “Rules, however, must be read in conjunction with each other and r. 3.02 must be read together with and in the spirit of r. 1.04”

[37] In my view, it is apparent from her reasons that the Associate Judge considered, 1.04 and 2.03, but it is not clear from her reasons that she considered 3.02, said to be empowering in nature to provide the court with the discretion to avoid an overly rigid application. During oral submissions, given the lack of any jurisprudence dealing with the specific issue before the court, counsel was asked about the existence of any jurisprudence where an Associate Judge resorted to r. 3.02 to extend time in similar situations where mandatory language was used. Counsel was unaware of any such cases.

[38] Neither counsel directed the court to r. 76.01 (2) which governs the application of other rules to r. 76. The text reads as follows:

Application of Other Rules

(2) The rules that apply to an action apply to an action that is proceeding under this Rule, unless this Rule provides otherwise.

[39] By virtue of r. 76.01(2), the general rules, which would include rr 1.04, 2.03 and 3.02 would apply to a simplified procedure action because they are not otherwise exempted from r. 76. Reading the Rules as a whole, r. 3.02 would have been available to the Associate Judge if she wished to extend the time limit under r. 76.04(2).

[40] The use of the word “shall” is not determinative as to whether it is mandatory or permissive, particularly where context requires it to be equivalent to “may” in order to carry out Parliament’s intention. The same logic could be applied to interpretation of a regulation. The Ontario Court of Appeal examined the possible interpretation of the word in the context of interpreting s. 20(1) (j) of the Young Offenders Act, R.S.C. 1985, c. Y-1 in R. v. J.H. (2002), 155 O.A.C. 146. Cronk J.A. speaking for the court, indicated, at paras. 22-23:

First, the ordinary signification of the word "shall", when it is used in a statute or legal instrument, connotes an imperative meaning. Thus, s. 11 of the Interpretation Act, R.S.C. 1985, c. I-21 provides that "the expression shall' is to be construed as imperative and the expression may' as permissive." This is consistent with the ordinary dictionary definition of the word "shall" (Black's Law Dictionary, 6th ed. (West Group: 1990)).

However, the word "shall" may also be construed as merely permissive or directory, that is, as equivalent to "may", where the context so requires to carry out the intention of Parliament (Black's Law Dictionary). Accordingly, use of the word "shall" alone, is not determinative of whether an imperative obligation is imposed by s. 20(6)(a). It is, however, some evidence of legislative meaning.

[41] In fact, Associate Judges routinely make orders to extend time to serve statements of claims on party defendants, in appropriate circumstances, despite the mandatory language in r. 14.08(1). They find support in the seminal decision of Chiarelli v. Weins, [2000] 46 O.R. (3d) 780 (C.A.), which sets out the principles to be applied by the court. Although in the case of Chiarelli, the motion was brought before a judge, the motions judge considered rr. 1.04, 2.01, 3.02 and 14.08(1). Neither the Divisional Court, which reversed the motions judge’s decision, nor the Court of Appeal, which restored it, questioned the court’s discretion to extend the time to serve, despite the mandatory language in r. 14.08(1).

[42] In the result, r. 76.01(2) provides that the Rules that apply to an action also apply to an action proceeding as a simplified action unless that Rule provides otherwise, and r. 3.02 does not specifically exempt r. 76, nor does r. 76.04(2) exempt the application of r. 3.02. As well, based on the jurisprudence, Associate Judges have discretion to extend time under the Rules despite the mandatory language based on principles long established in the jurisprudence. Therefore, the court concludes that the Associate Judge erred when she concluded that she had no discretion to extend the time for oral discoveries in a simplified action.

[43] The court therefore agrees with the appellants that despite the mandatory language which stipulates that oral discoveries must be completed in three hours, the court retains discretion to extend time and may resort to r. 3.02 to do so, on such terms as are just. The general rules relied upon by the appellants are remedial in nature but should not be generally resorted if to do so would undermine the principle and objectives of r. 76. Given the $50,000 cap on costs and $25,000 cap on disbursement for simplified actions, this discretion should be exercised sparingly and granted only where the interest of justice, as mandated by r. 3.02, warrants it. Despite her conclusion that she lacked discretion to extend the time, the Associate Judge was alive to principle codified by r. 1.04(1.1) of the Rules of Civil Procedure, which encapsulates the objective of the simplified procedure for speedy, cost-effective resolution of proceedings. Her recitation of the various attempts by the appellants to obtain information and other evidence from the respondent, counsel, and the non-parties, as well as the refusals by counsel made it clear that this was one of those cases where it may be appropriate to extend time. She was very much alive to the need to level the playing field stating: “While there are good policy reasons behind rule 76, it should not be used to permit trial by ambush.” In the result, she attempted to balance the fairness between the parties. Indeed, this was but an attempt to animate the guiding principles codified in r. 1.04, and of course, to balance the justice between the parties as envisaged by the panoply of remedial rules relied upon by the appellants.

G. The Cross Appeal

a. Leave of the Appellants to Examine the Non-Parties

[44] The cross-appeal raises the question of whether the Associate Judge made a “palpable and overriding error” only.

[45] The appellants argue that the respondent is attempting to re-litigate r. 30.10 although the respondent characterizes the issue as a cross appeal. The appellants submit that the issue is one of mixed fact and law, and there is no palpable and overriding error. The defendants asks that the court apply rr. 1, 2 and 3 to r. 76 and make the order that the Associate Judge ought to have made in extending the time for discoveries and give effect to what the Associate Judge would have done, and grant leave to examine the non-parties.

[46] The respondent argues that the Associate Judge did not address r. 31.10(2) c) of the Rules. In my view, it is implicit in her reasons that she did so. She was very much alive to objective of the simplified procedure and referred to one of the overarching policies behind simplified procedure, that these matters are to be expediently, and cost efficiently determined. And it is against this backdrop that she appeared to balance what would be just in the circumstances. Even though she was of the view that she lacked discretion to relieve against the time limit, she stated: “However, this is not the end of the story. The court cannot sanction the unfairness that will result to the defendants, who were courteous in their treatment of the plaintiff, as one would hope counsel would be.”

[47] The Associate Judge set out the correct test to be met and carried out a very careful and exhaustive review of the evidence before her, before making certain findings of fact. In a careful analysis set out in paragraphs 2 to 23 of her reasons, she applied the facts, as she found them, to the test. She indicated that if she had the discretion to extend the time under r. 76.04(2), she would have granted leave to examine the non-parties under r. 31.10. She indicated that the appellants had made “every effort” to obtain the information from the respondent and non-parties. She indicated the non-parties had submitted brief witness statements but had not addressed the issues of concern raised by the appellants. She referred extensively to the transcript of the examination for discovery of the respondent, which showed the respondent’s inability to provide the information and his repeated offers to ask his spouse, questions refused by counsel for the respondent. The Associate Judge indicated that the information sought from the non-parties was not otherwise available, was relevant to the claim, and it would be unfair for the defendants to proceed to trial without it. She found the following, based on the evidentiary record:

a) the information is relevant; b) the appellants have been unable to obtain it from the respondent despite their best efforts to do so; and c) it would be unfair for the appellants to proceed to trial without having the opportunity to examine the non-parties.

[48] The order was discretionary. The Associate Judge did not ultimately make an order and it appears that the respondent is really appealing from her reasons.

[49] Moreover, there is no evidence that the respondent has directed this court to that at the time of the motion, the trial of the action would have been unduly delayed, or that proceeding with the discovery of the non-parties (an additional two hours) would have resulted in unreasonable expense for the other parties. The respondent did not point to any evidence from the non-parties, or any party, to support the assertion that the order would result in unfairness to the non-parties.

[50] Accordingly, this aspect of the cross-appeal is dismissed for the reasons above.

b. Costs of Abandoned Motion of Dr. Carlos Lalonde

[51] A motion under r. 37.09(2) and (3) court for an order that Dr. Carlos Lalonde has abandoned or deemed to have abandoned his motion is not properly before this court. Costs of an abandoned motion are within the discretion of the court hearing the matter. There is no evidence before me that at the hearing, the respondent sought an order for costs on the basis that Dr. Lalonde had abandoned or was deemed to have abandoned his motion under r. 39, which was denied by the Associate Judge. In any event, with costs being within the discretion of the Associate Judge, leave to appeal would be required, which has not been sought by the respondent.

[52] The relevant provisions of r. 37.09 provide as follows:

Abandoned Motions

37.09 (1) A party who makes a motion may abandon it by delivering a notice of abandonment. R.R.O. 1990, Reg. 194, r. 37.09 (1).

(2) A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 37.09 (2).

(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 37.09 (3).

[53] The respondent’s cross motion also seeks a rehearing of the motion with respect to costs of Dr. Lalonde’s motion. A motion for costs of an abandoned motion, or a motion deemed to be abandoned, for costs under r. 37.09(3), ought to be made to the presiding judicial officer, not to a judge on appeal. This issue is dealt with further under the heading below.

c. Motion to set aside Costs

i. Costs Awarded to the Appellants

[54] As for the cross appeal of the costs award, the appellants argue that there was no error in principle nor was it plainly wrong on the facts of the case. The appellants submit that the reasons indicate that the Associate Justice felt strongly about the conduct of counsel for the plaintiff. They argue that r. 57.01(2) also indicates that the fact that a party is successful in a proceeding or step in the proceeding does not prevent the court from awarding costs against the party. Counsel for the plaintiff made no responding submissions, nor did anyone one else make responding submissions on behalf of the respondent. Counsel for the respondent received the decision of the Associate Judge and was placed on notice that his conduct had attracted commentary. He was given an opportunity to respond but did not. Moreover, no order was made personally against counsel for the respondent.

[55] In her Endorsement on Costs dated September 21, 2021, the Associate Judge awarded costs to the appellants in the amount of $3,700 to be paid within 30 days.

[56] The respondent argues that the Associate Judge had decided the issue of costs before she awarded costs. The respondent had an appeal because the Associate Judge awarded costs against the respondent for exercising his right to insist that the adverse party adhere to the three-hour time limit.

[57] The appellants submit that there was no error in principle nor was the order for costs plainly wrong on the facts of the case. The appellants submit that the respondent was on notice that the conduct of counsel had attracted commentary, but despite this, the respondent chose not to make submissions on costs. They argue that r. 57.01(2) also indicates that the fact that a party is successful in a proceeding or step in the proceeding does not prevent the court from awarding costs against the party.

[58] I agree with the appellants. Whatever was meant by paragraph 25 of her decision that “while the defendants did not entirely succeed on their motion, I find that they are entitled to some costs”, the Associate Judge gave the parties an opportunity to make submissions if they could not resolve the issue of costs. Instead, counsel for the respondent wrote to her to advise that the respondent would not be making submissions on costs. At paragraph 5 of her Endorsement, she stated:

“Mr. Rotondo advises that he is “not in a position to participate in the costs adjudication process reference at paragraph 26 of your decision, which seeks to determine the quantum of costs. This paragraph of the decision simply required the parties to attempt to agree on costs, failing which they could file short submissions. It was his position that “Mr. Leask’s appeal of the issue of entitlement to costs effectively precludes his ability to address the costs issue by way of the draft approval process. I have noted his position and also note that no other counsel was retained to make submissions on costs on the plaintiff’s behalf”.

[59] The appellants further point to the fact that the respondent chose not to make any responding submissions nor did anyone one else make responding submissions on behalf of the respondent. Counsel for the respondent received the decision of the Associate Judge and was placed on notice that his conduct had attracted commentary. He was given an opportunity to respond but did not. Moreover, no order was made personally against counsel for the respondent.

[60] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs incidental to a proceeding or step in a proceeding are in the discretion of the court, subject to an Act or the rules of court. In exercising her discretion as to costs, the Associate Judge must consider the factors in r. 57.01, which are not exhaustive. The Associate Judge referred to the reasons which grounded her view that the appellants were entitled to costs in her Decision. One of those factors considered was the conduct of the respondent and counsel, but it is not the sole factor considered. After a very careful and thorough review of the evidence before her of counsel which in her view amounted to “sharp to say the least”, she was of the view that the appellants should be entitled to their costs despite not being entirely successful. The respondent chose not to make any submissions. The respondent also chose not to submit a Bill of Costs.

[61] The costs award of $3,700 was therefore in the discretion of the Associate Judge. There is no appeal as of right. Leave to appeal costs is required. No leave is sought by the respondent. The relevant provision of the Courts of Justice Act is s. 133 (b) which reads:

133 No appeal lies without leave of the court to which the appeal is to be taken,

b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

[62] Moreover, leave to appeal is granted “sparingly” and only in the “most obvious case”, and only where the party seeking leave convinces the court there are “strong grounds” that the judicial officer erred in the exercise of his or her discretion, or exercised same upon a wrong principle: see McNaughton Automotive Limited v. Co-operators General Insurance Company, 2008 ONCA 597, 95 O.R. (3d) 365 at paras. 24-25; Brad-Jay Investments Ltd. v. Szijjarto, [2006] 218 O.A.C. 315 (C.A.), at para. 21. Accordingly, I am not convinced that the Associate Judge erred in the exercise of her discretion.

[63] In any event, costs awards are afforded a great degree of deference: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at para 344. Such awards are set aside on appeal only if the judicial officer has made an error in principle or if the costs award is plainly wrong: Duong v. NN Life Insurance Co. of Canada (2001), 141 O.A.C. 307 (C.A.), at para. 14; McNaughton, at para. 25; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 27. The court finds no error of principle, nor is the court able to conclude that the award is plainly wrong.

[64] Finally, the respondent’s notice of cross-appeal was served on October 7, 2021, 16 days after the Endorsement on Costs. The Notice of Cross Appeal is out of time. The respondent has not sought leave to extend the time for leave to appeal, but as the parties did not argue this issue, and given my reasons above on the merit of the appeal of the costs award, I need not decide this issue.

ii. Costs of the Abandoned Motion of Dr. Lalonde

[65] As for the appeal of the costs award related to the motion involving Dr. Lalonde, this too was in the discretion of the Associate Judge and is dismissed. Costs of the abandoned motion was addressed at the merits motion on September 8, 2021. Counsel for Dr. Lalonde submits that the Associate Judge heard submissions from counsel for the respondent on ordering costs against Dr. Lalonde based on r. 37.09, which governs abandoned motions. The Associate Judge held that there should be no costs for, or against Dr. Lalonde. He argued that the respondent’s counsel renewed the request in his letter to the Associate Judge, which she declined to vary or set aside.

[66] For the reasons set out above, the court agrees that the Associate Judge’s decision on costs of the abandoned motion is entitled to a high degree of deference. The court finds no error in principle nor any palpable or overriding error in her consideration of the factors in exercising her discretion. The Associate Judge was aware of why Dr. Lalonde’s motion was not before the court, that he had agreed to be bound by the companion motion brought by the appellants, for the same relief, and considered the submissions of the parties.

F. Conclusion

[67] The Associate judge indicated that “But for the expiry of the available time, I would have granted the defendants leave to examine the non-parties under Rule 31.10.” Pursuant to its powers under section 134(1) (a) of the Courts of Justice Act, this court may “make any order or decision that ought to or could have been made by the court or tribunal appealed from.” While the court would normally have made the order sought by the appellants, in the context of a simplified action, and to prevent further delay, it makes sense to send this back to the Associate Judge as no actual order was made by her to that the non-parties be examined for discovery.

Costs

[68] The parties made submissions on costs at the conclusion of the hearing. However, it is not clear whether there are any offers to settle. If counsel are not able to agree on costs, they may contact Ms. Diamante within 15 days of the date of these Reasons, with a mutually agreed upon date and time for a conference call to make further submissions on costs.

A.P. Ramsay J.

Released: January 12, 2023