COURT FILE NO.: CV-22-00679141-0000 DATE: 2023-07-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raymond Fortune v. KPM Simcoe Inc. et al
BEFORE: Associate Justice Rappos
COUNSEL: Cole Tysick, for the Plaintiff Ashleigh Martin, for the Defendant KPM Simcoe Inc.
HEARD: July 6, 2023 (via videoconference)
ENDORSEMENT
Nature of the Motion
[1] The Plaintiff, Raymond Fortune, brings a motion for an order requiring mandatory mediation with the Defendant, KPM Simcoe Inc. (“KPM Simcoe”), to take place on or before September 25, 2023.
[2] In support of the motion, Fraser Gow, a partner with MacIsaac Gow LLP (“MacIsaac Gow”), the Plaintiff’s lawyers in this proceeding, swore an affidavit on June 13, 2023 (the “Gow Affidavit”). In response, Hugh Brown, a partner with Bell Temple LLP (“Bell Temple”), the Defendant’s lawyers in this proceeding, swore an affidavit on June 28, 2023 (the “Brown Affidavit”).
Background
[3] The action arises in connection with an alleged slip and fall that Mr. Fortune suffered on July 28, 2020 at 1011 Simcoe Street North, Oshawa. KPM Simcoe is the owner and/or occupier of the premises.
[4] The Statement of Claim was issued on March 30, 2022. Mr. Fortune claims that he was injured due to the negligence of KPM Simcoe. The Plaintiff seeks damages in the amount of $200,000. Mr. Fortune alleges that because of the accident, he has, among other things, suffered a loss of income and a diminution of his ability to work in the future, which will result in a loss of future earning capacity, a loss of competitive advantage, and a shortened work-life expectancy.
[5] KPM Simcoe delivered a Statement of Defence dated March 29, 2023, wherein they deny all allegations contained in the Statement of Claim and deny that Mr. Fortune has suffered any damages. The Statement of Defence was filed on March 30, 2023.
[6] Examinations for discovery were completed on December 5, 2022.
Scheduling of Mediation
[7] Starting on January 5, 2023, counsel to the parties began exchanging correspondence regarding the scheduling of mediation. By February 16, 2023, the parties had agreed to a mediator. MacIsaac Gow indicated its preference to have the mediation take place in March or April 2023.
[8] On February 17, 2023, Ms. Martin from Bell Temple sent an e-mail to MacIsaac Gow and noted that there were “quite a few outstanding undertakings to complete” and that she “did not think that this matter will be ready for mediation in March or April.” Ms. Martin asked for potential dates in “late 2023/early 2024.”
[9] On March 14, 2023, an assistant at MacIsaac Gow responded that they were “working on the undertakings and will be serving them in due course.” Instead of responding to Ms. Martin’s suggestion that the mediation occur in late 2023 or early 2024, the assistant proposed mediation dates in July 2023.
[10] On that same day, Ms. Martin responded that as the “undertakings are not yet satisfied, we would like to canvas dates in early 2024” and asked MacIsaac Gow to “advise as to your availability in End of January and onwards.”
[11] The Plaintiff provided answers to several undertakings in March, April, and June 2023.
[12] On May 2, 2023, the assistant at MacIsaac Gow sent an email where she proposed mediation dates in May and June 2023. These dates were earlier than the July dates that she previously proposed in her email sent on March 14, 2023. Again, she did not respond to Ms. Martin’s comment regarding scheduling the mediation in early 2024.
[13] On May 11, 2023, Mr. Gow sent an email to Ms. Martin and stated that a mediation in 2024 was not reasonable, and that they intended to bring a motion on July 6, 2023. The email did not speak to why the proposed timing of the mediation was unreasonable from the Plaintiff’s perspective.
[14] On June 22, 2023, Ms. Martin sent an e-mail to MacIsaac Gow and asked for availability for mediation in September through December 2023, and/or 2024. Mr. Martin noted that they still required satisfaction of outstanding undertakings prior to mediation.
[15] Bell Temple has prepared an undertakings chart with respect to Mr. Fortune’s examination for discovery. Some of the undertakings that they claim are outstanding deal with production of Mr. Fortune’s application to ODSP, production of records from Dr. Sagi at Lakeridge Health, production of Mr. Fortune’s employment file from Dufferin Aggregates, and production of the Plaintiff’s government assistance files.
Undertakings
[16] One point of contention between the parties is whether Mr. Fortune gave any undertakings at the examination. Neither of the parties have ordered the transcript from the examination.
[17] For the first time in the Plaintiff’s Costs Outline, Mr. Tysick of MacIsaac Gow claimed that no undertakings were provided at Mr. Fortune’s examination, and that all matters were taken under advisement or refused. Mr. Tysick did not attend Mr. Fortune’s examination, but spoke with counsel that did appear and reviewed their notes.
[18] Ms. Martin appeared as counsel for KPM Simcoe at the examination and submitted during the hearing that undertakings were provided by Mr. Fortune.
[19] Mr. Tysick’s position is contradicted by the repeated references in Mr. Gow’s affidavit, and in the emails attached to his affidavit, concerning the Plaintiff’s undertakings and the status of the answering of the undertakings.
[20] There is no evidence in the record that supports Mr. Tysick’s position. As a result, I have accepted as accurate the statements in Mr. Gow’s affidavit and in the correspondence exchanged by counsel that undertakings were provided by the Plaintiff at his examination for discovery and were in the process of being answered by the Plaintiff.
Positions of the Parties
[21] In the Gow Affidavit, Mr. Gow states that, as Rule 24.1.09 of the Rules of Civil Procedure requires that mandatory mediation take place within 180 days of the filing of the first defence in the action, there would be prejudice to the Plaintiff if the mediation takes place after September 25, 2023. Mr. Gow claims that there would be no prejudice to the Defendant if the requested relief is granted.
[22] In the Brown Affidavit, Mr. Brown states that Bell Temple proposed that the mediation occur in early 2024 to provide time for the Plaintiff’s outstanding undertakings to be answered. In Mr. Brown’s view, the purpose of holding mediation would be defeated if the parties attended mediation before the Plaintiff’s claim could be “fully appreciated”, which could not be done until all undertakings had been satisfied. Mr. Brown states that certain of the outstanding undertakings “speak directly to liability.”
Disposition re Scheduling of Mediation
[23] Rule 24.1.09 of the Rules of Civil Procedure provides that “[a] mediation session shall take place within 180 days after the first defence has been filed, unless the court orders otherwise.”
[24] Rule 24.1.01 provides that the purpose of mandatory mediation is to “reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.”
[25] The parties have agreed to an order that provides that the mediation is to take place by October 31, 2023. Ms. Martin requested that the order provide that the deadline for completion of the mediation be extended if the Plaintiff has not satisfied all outstanding undertakings one month prior to the mediation date.
[26] I am not prepared to grant such an order. However, I do think it would be beneficial for the parties to appear at a case conference before me in September 2023 so that the parties may provide an update as to the status of the outstanding undertakings and the scheduling of the mediation. The parties shall e-mail Assistant Trial Coordinator Teanna Charlebois (teanna.charlebois@ontario.ca) to confirm the date for the case conference.
Disposition - Costs
[27] Mr. Tysick seeks costs of the motion at approximately $1,800 on a partial indemnity basis, and $2,780 on a substantial indemnity basis. Mr. Tysick argues that the motion was necessary because of the Defendant’s refusal to schedule the mediation.
[28] Ms. Martin argues that the Plaintiff should not be awarded costs, and that the Plaintiff should be required to pay costs of $1,000 to the Defendant on account of bringing an unnecessary motion.
[29] Section 131 of the Courts of Justice Act provides that costs are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. Rule 57.01 sets out facts that the court may consider in exercising its discretion.
[30] In my view, this motion did not need to be brought by the Plaintiff.
[31] The 6-month period to hold the mediation was to expire at the end of September 2023. The parties could have agreed to extend this date. On February 17, 2023, Bell Temple advised MacIsaac Gow of their view that the mediation should be scheduled for late 2023 or early 2024. The times proposed were less than 4-5 months beyond the September 2023 deadline date.
[32] In its responses, MacIsaac Gow chose to continue to request dates in May, June and July 2023, notwithstanding that they provided answers to undertakings on March 24, April 25, and June 8, 2023.
[33] On June 22, 2023, Bell Temple asked that MacIsaac Gow provide its availability for mediation dates in September to December 2023, and 2024. There is nothing in the record that evidences any response to this email sent by MacIsaac Gow.
[34] Additionally, there is nothing in the record that details what prejudice would be suffered by the Plaintiff if the mediation occurred a few months after September 2023.
[35] In my view, it was not unreasonable for Bell Temple to request that mediation take place after key outstanding undertakings were answered by the Plaintiff.
[36] As I noted in Capstack Advisory v Northern Lights, 2023 ONSC 2934, the Three C’s of the Commercial List - cooperation, communication and common sense – are equally applicable in civil proceedings.
[37] In my view, the Plaintiff failed to act with common sense when it went “full steam ahead” in bringing this motion to schedule the date for mediation, and should have cooperated with the proposed dates offered by counsel to the Defendant.
[38] For the reasons set out above, I am exercising my discretion to dismiss the Plaintiff’s request for costs and grant the Defendant costs fixed in the amount of $500 to be paid by the Plaintiff within 30 days.
[39] Order to go as electronically amended and signed by me.
Associate Justice Rappos DATE: July 7, 2023