COURT FILE NO: CV-20-0435-00
DATE: 2023-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Landen O’Brien, a minor by his Litigation Guardian, Katherine O’Brien, and the said Katherine O’Brien
Mr. S. Rastin for the O’Brien Defendants
Plaintiffs
-and
Robert Horychuk, Enterprise Rent -A-Car Canada Company, Brady O’Hanley, Ministry of Transportation and Carillion Canada
Mr. T. Wasserman for the Ministry of Transportation and Carillion Canada
Defendants
HEARD: November 23, 2023 Via Zoom at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Motion to Extend the Time to Set Two Cases Down for Trial
Introduction
[1] The plaintiff in the Severance action moves for an order extending the time to set the two cases down for trial until December 31, 2024. The cases have been ordered to be tried together. All parties except the Ministry of Transportation (“MTO”) and Carillion Canada (“Carillion”) consent.
[2] After hearing argument from all parties, I indicated that the MTO and Carillion were not prejudiced by the extension and granted the order, with reasons to follow. These are the reasons.
Chronology
[3] The claims involve serious motor vehicle accidents that took place in February of 2015, resulting in serious injury and loss of life. The claims were issued in January 2017. Statements of defence, crossclaims and counterclaims followed. Liability and damages are in issue.
[4] The litigation took a turn when Carillion filed for creditor protection in 2018. A receiver was appointed and the cases against Carillion were stayed as a result. In time, the plaintiffs in both actions were able to secure the monitor’s approval to lift the stay. As a condition of lifting the stay, the parties to the proceedings agreed that they would not seek to examine for discovery any of Carillion’s employees.
[5] The Severance plaintiffs, Ms. O’Brien, and defendants, O’Hanley and Horychuk, were examined for discovery in June 2018. A representative of the MTO, Mr. Petryna, was examined in August 2020.
[6] Counsel for defendants, Horychuk and Enterprise Rent-a-Car, examined the MTO representative in the presence of counsel for all parties, but the plaintiffs’ counsel did not examine him at that time. Instead, they reserved their right to do so following his answers to undertakings.
[7] Mr. Petryna refused to answer several questions and took other questions under advisement, which he ultimately refused to answer.
[8] Despite requests from plaintiffs’ counsel in April and June 2021, the MTO representative refused to answer outstanding questions. All counsel except Mr. Wasserman agreed that a motion to compel answers would be necessary.
[9] At the request of the parties, the court granted an order extending the time to set both cases down for trial to December 31, 2022.
[10] Even though the Severance plaintiffs were not named in the O’Brien action, the MTO counterclaimed against them. The Severance defendants by counterclaim moved for summary judgment to strike the MTO counterclaim in its entirety. The motion was argued in November 2021. In March 2022, summary judgment was granted and the counterclaim was dismissed.
[11] Next, the plaintiffs and certain defendants moved in July 2022 to compel the MTO’s representative to answer undertakings. However, it was not argued on the planned date because counsel was called to a four-week trial.
[12] The motion was ultimately heard in November 2022, with the decision released by Madam Justice Nieckarz on May 4, 2023. See: O’Brien et al. v. Horychuk et al., Severance et al. v. O’Hanley et al. 2023 ONSC 2739.
[13] Although the motion was dismissed, Justice Nieckarz indicated in her reasons that the case law was not clear as to the obligations of the Crown in documentary production and examination for discovery. At para. 57 of her reasons she stated, “This is an issue that would benefit from appellate intervention.”
[14] Counsel accepted her invitation. In June 2023, counsel for defendants Horychuk and Enterprise Rent-a-Car filed a motion seeking leave to appeal to the Divisional Court. As of the date this motion was argued, the Divisional Court had not rendered a decision on leave.
[15] Counsel advise that if leave to appeal and the appeal are granted, requiring the MTO representative to answer questions, the evidence produced would be shared among the other parties.
[16] Furthermore, in March 2022, all parties except MTO and Carillion, proposed mediation. MTO and Carillion refused to participate in any capacity, whether to resolve the claims or simply narrow the issues.
[17] In August 2022, a case conference was held. The court granted a further extension to December 31, 2023, to set the cases down for trial. The parties, except MTO and Carillion, agreed to pursue mediation, which has been scheduled for April 2024.
[18] To avoid a motion, Mr. Lester convened a further case conference on October 31, 2023, to seek consent for a further extension of the set-down date, pending a decision on leave to appeal from the Divisional Court. All counsel, except Mr. Wasserman, confirmed they would attend.
[19] At the case conference, the MTO and Carillion were the only parties that refused to agree to a third extension; in the absence of consent, the court determined that a motion would be required. This is the motion.
Discussion
[20] Counsel acknowledge that a trial of this complexity will not likely be heard in 2024. Should leave to appeal be granted, the appeal could likely be argued in the Divisional Court in June of 2024.
[21] The MTO objects to a further extension, arguing that:
a. the plaintiffs have failed to move the case forward;
b. the court should not assume that the Divisional Court will grant leave but if leave is granted, the importance of the issue, whether a witness is compellable under the Crown Liability and Proceedings Act, 2019 will likely see the case reviewed by the Court of Appeal;
c. further delay will diminish the quality of evidence as memories fade and witnesses cannot be located; and
d. counsel have been overly cautious in their approach to this litigation.
[22] While there have been some delays in this case, principally arising out of confusion over Carillion’s bankruptcy proceedings, the MTO is not without blame. Mr. Wasserman, representing Carillon, could have clarified the misunderstanding about the stay of proceedings but chose not to do so.
[23] The MTO counterclaimed against the Severance plaintiffs in the O’Brien action, resulting in a successful motion for summary judgment striking out the counterclaim. Undoubtedly the decision to counterclaim produced delay.
[24] Some delay unavoidably resulted from reserve decisions. However, the MTO’s position that appellate review of the refusals motion will generate delay, even while acknowledging the importance of the issue to the Crown, is unaccountable.
[25] While complaining about fading memories, the MTO has not produced its own witness list nor any witness statements by the 8-year point. Its representative, who was examined for discovery, relied mainly on documentary evidence.
[26] Likewise, the MTO and Carillion have refused to participation in mediation to resolve or narrow the issues, for example, agreeing on damages to shorten the trial. They refused to indicate their position about an extension to set the case down for trial, leading to an unnecessary case conference instead of a motion. Thus, it does not lie in the mouth of the MTO to complain about delay when it has been the cause of much of it.
[27] There is no evidence that the MTO or Carillion will be prejudiced by delay in setting these cases down for trial. However, there are consequences for the substantive rights of other litigants if an extension is not granted.
[28] Rule 48.04(1) of the Rules of Civil Procedure prohibits a party who has set an action down for trial from initiating or continuing any motion or form of discovery without leave of the court. Thus, counsel who have reserved their right to examine the MTO representative for discovery, including documentary discovery, following his answers to undertakings, would be precluded from doing so without leave of the court. Conceivably, they could be forced to proceed to trial without exploring evidence on liability.
[29] The lack of clarity about liability would also interfere with settlement discussions, inevitably leading to a longer trial or even an unnecessary one.
[30] I do not accept that counsel have been overly cautious in the conduct of this litigation as suggested by Mr. Wasserman. The seriousness of this accident is reflected in the extent of fatal and other serious injuries, and in the number of cross-claims involving the defendants.
Conclusion
[31] The MTO and Carillion have not established that they will be prejudiced if a further extension is granted to set the cases down for trial, whereas the plaintiffs in both the Severance and the O’Brien actions will certainly suffer prejudice, as will other defendants involved in these two cases. The following orders will therefore issue:
Extending the time to set these two cases down for trial until December 31, 2024;
Dispensing with the administrative dismissal of actions in Court Files No. CV-17-0036 and CV-17-0025;
If counsel are unable to agree on costs within 60 days from the release of these reasons, any party may apply to the trial coordinator for an appointment to argue costs, failing which costs of this motion will be deemed to be settled.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: December 6, 2023
COURT FILE NO: CV-20-0435-00
DATE: 2023-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Landen O’Brien, a minor by his Litigation Guardian, Katherine O’Brien, and the said Katherine O’Brien
Plaintiffs
-and
Robert Horychuk, Enterprise Rent -A-Car Canada Company, Brady O’Hanley, Ministry of Transportation and Carillion Canada
Defendants
REASONS ON MOTION
Pierce J.
Released December 6, 2023