Court File and Parties

Court File No.: 19-0056 Date: 2023/06/08 Ontario Superior Court of Justice

Between:

William Dorion Plaintiff/Defendant by Counterclaim/Responding Party – and – 7853742 Canada Inc. O/A Mapleview Homes, 10951072 Canada Inc. O/A Exit Realty Brockville, 8449015 Canada Inc., 2206588 Ontario Limited, 10673145 Canada Inc. and Ronald Noseworthy Defendants/Plaintiffs by Counterclaim/Moving Party

Counsel: Andrew Lister, for the Plaintiff Jonathan Margolin, for the Defendants/Plaintiffs by Counterclaim

Heard: In Writing

Reasons for Decision on Motion

P.E. Roger

[1] This motion was heard in writing.

[2] This action involves claims for wrongful dismissal and defamation. It was scheduled for a two-week judge and jury trial in Brockville, starting on March 27, 2023. However, the trial was adjourned, and is now scheduled for three weeks starting on September 3, 2024.

[3] The Defendants have had several lawyers. The lawyer currently acting for the Defendants, except for Justin Noseworthy, came on the record on January 13, 2023. Shortly after, these Defendants brought a motion to adjourn the trial. The Defendant, Justin Noseworthy, brought a motion seeking to have the claims made against him and his counterclaim heard separately from the claims made against the other Defendants.

[4] I heard these two motions on January 31, 2023. I dismissed both motions and ordered costs payable by the Defendants to the Plaintiff ($2,800 payable by the Defendant, Justin Noseworthy, and $3,190 payable by the other Defendants). My decision, rendered orally that same day, is reported at Dorion v. 7853742 Canada Inc. et al, 2023 ONSC 929.

[5] The Plaintiff and the Defendant, Justin Noseworthy, have since resolved their differences and agreed to a consent Order on April 19, 2023.

[6] The Defendants, except for Justin Noseworthy, now bring a motion seeking to set aside the Order of this Court dated January 31, 2023, including the costs order. The moving Defendants also seek $9,588.62 for the costs of the January 31 motion, and $4,709.28 for the costs of this motion ($3,720.53 plus $988.75). They argue that after the January 31 motion, the Plaintiff increased the number of his witnesses causing the adjournment of the trial. They argue that the Plaintiff should have known this when the motion was argued on January 31, that the Plaintiff misled the Court, and should have informed the Court that he intended to call five additional witnesses at trial.

[7] The moving Defendants argue that the Court has inherent jurisdiction to reopen a matter to prevent a miscarriage of justice, where the integrity of the process is at risk or a principle of justice is at stake, including instances of deliberate misleading of the court and/or abuse of the Court’s process. They also argue rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which allows a party to seek to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made.

[8] The moving Defendants argue that the Court should exercise its discretion because it was not known at the time (January 31, 2023) that the Plaintiff would seek to add witnesses and if the Court had known that the Plaintiff would seek to add additional witnesses and did not actually have a genuine desire to proceed to trial, then the Court’s decision on January 31, 2023, would have been different.

[9] The Court has discretion to reopen a motion to prevent a miscarriage of justice, where the integrity of the process is at risk, or a principle of justice is at stake that requires reconsideration of the matter. This includes, but is not limited to, preventing a fraud on the court, the deliberate misleading of the court, and/or abuse of the court’s process. While a court may re-open a motion when it is just to do so, the court should do so “sparingly”, in “exceptional circumstances”, and “with the greatest of care”. In exercising its discretion to re-open a motion based on “new’ evidence, after an order has been made, the court will consider whether the evidence probably would have changed the result and whether the evidence could have been obtained, by the exercise of reasonable diligence. See for example Huron-Perth Children’s Aid Society v. R.C.K. et al., 2015 ONSC 5023, at para. 56.

[10] This is not a case where the Court should exercise its discretion because knowing of the additional five witnesses would not have changed my decision. Indeed, parties’ lists of witnesses and trial timelines are rarely accurate. I am not surprised that additional witnesses were disclosed. Furthermore, completing a civil jury trial in eight or ten days, considering the issues then between the parties, was possible, but I did not assume that it was a certainty or that the trial might not possibly take slightly longer than ten days to complete. I assumed that a slightly longer trial could have been accommodated, but unfortunately in this instance it could not. Even if five additional witnesses had been mentioned, on January 31, 2023, I nonetheless would have refused the adjournment of the trial then requested by the Defendants.

[11] Furthermore, I accept that the Plaintiff had earlier disclosed to the Defendants that he intended to call a few additional quick witnesses to deal with his defamation allegations, because this is apparent from the nine-day trial estimate. That this later computed to slightly more than ten days, at a March 2023 trial scheduling conference, and that this additional time could not be accommodated by the Court is disconnected from my earlier decision and does not constitute the Plaintiff misleading the Court at the January 31, 2023 motion, or circumstances that warrant the Court exercising its discretion to change the Order of January 31, 2023.

[12] Re-opening a motion is something that should be done sparingly, in exceptional circumstances, and with the greatest of care, and this is not one such instance.

[13] The part of the January 31 Order prohibiting motions without leave is still justified because the parties have demonstrated an inclination to bring unnecessary and unsuccessful motions, file overly large amounts of materials, and the Defendants’ earlier statements that they wish to bring a motion for summary judgment requires supervision. As explained in my earlier decision, this is most likely not a case for a motion for summary judgment. Leave for motions is required to avoid the parties and the Court being burdened with further unnecessary motions. If the Defendants or any party wish to bring that or any other motion, they shall follow the process outlined in my earlier decision for this Court to assess whether the motion should be brought. This process is as warranted now as it was when ordered on January 31, 2023.

[14] On the issue of costs, the Plaintiff was the successful party, and I see no reason why he should not be entitled to his costs of responding to this motion. On the scale of costs, the Defendants made serious allegations against the Plaintiff, including that the Plaintiff misled the Court. This is akin to allegations of fraud, dishonesty, or other improper conduct, and such allegations are seriously prejudicial to the character or reputation of the Plaintiff and his lawyer. Such unfounded allegations should attract costs on a substantial indemnity basis. The amount of costs sought by the Plaintiff is less than that sought by the Defendants. It is a reasonable amount, and an amount within the reasonable expectations of the Defendants.

[15] The costs of this motion are therefore fixed, on a substantial indemnity basis, in the all-inclusive amount of $2,250. That amount is payable by the Defendants, except the Defendant Justin Noseworthy, to the Plaintiff within the next 30 days.

P.E. Roger J. Released: June 8, 2023