COURT FILE NO.: CV-16-554290
DATE: 2023 02 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EZRA LEVANT, Plaintiff
- and -
ROBERT P.J. DAY, Defendant
BEFORE: Associate Justice Todd Robinson
APPEARING: T. Markovic, counsel for the plaintiff
R. Day, in person
HEARD: October 17, 2022
SUPPLEMENTARY REASONS FOR DECISION (Motion to Strike Defence)
[1] Following release of my reasons for decision on Ezra Levant’s motion to strike Robert Day’s statement of defence (2023 ONSC 768), Mr. Day has written to both my Assistant Trial Coordinator (ATC) and opposing counsel. Mr. Day takes the position that Mr. Levant withdrew the motion during submissions, which is not acknowledged or discussed anywhere in my decision. Mr. Day requests a case conference call to address the matter.
[2] Mr. Levant’s counsel has responded directly to Mr. Day, copied to my ATC. Counsel has confirmed that the motion was never withdrawn. Rather, the relief sought was amended during submissions. In particular, Mr. Levant no longer sought an immediate order to strike Mr. Day’s defence, but rather sought authorization to move without notice to strike the defence if costs were not paid in a specified amount of time.
[3] Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194 expressly prohibits a party or a party’s lawyer from an out-of-court communication with a judge or associate judge about a pending proceeding, directly or indirectly, unless all the parties consent, in advance, to the out-of-court communication or the court directs otherwise. The prohibition in rule 1.09 is clear. Neither of the two exceptions apply. Indirect communication with me about this motion through my ATC is a breach of rule 1.09.
[4] A case conference is not required. My disposition of the motion does not require amendment, only clarification.
[5] Mr. Day is correct that my decision does not clearly reflect the change in Mr. Levant’s position on relief during submissions at the hearing, but Mr. Day is incorrect that the motion was withdrawn. It was not.
[6] Part way through submissions by Mr. Levant’s counsel, following a break, I was advised that Mr. Levant was no longer seeking an order striking Mr. Day’s defence at the hearing, but rather requested that I defer it pending a final deadline for Mr. Day to pay the outstanding costs award. Specifically, Mr. Levant sought an order that Mr. Day be required to pay the full amount that he would have paid per his proposed payment plan within one week, with the balance of the unpaid costs awards, plus costs of this motion, payable within thirty days. Mr. Levant requested that he be permitted to move without notice to strike Mr. Day’s defence if payment in full was not made.
[7] My decision as drafted does not clearly set out that amended request for relief. However, not having expressly stated it does not change my analysis or the result.
[8] Mr. Levant requested that I authorize him to move, without notice, to strike Mr. Day’s defence if payment was not made. Contrary to Mr. Day’s apparent view, I was not being asked to withdraw (or adjourn) the motion on terms. I was being asked to decide if Mr. Levant was entitled to an order striking Mr. Day’s defence. If so, then Mr. Day was to be afforded a final opportunity to make payment in full. If payment was not made, then Mr. Levant effectively asked that he not be forced to go through another opposed motion and instead be entitled to the order striking Mr. Day’s defence without further notice.
[9] In my view, the substance of the relief sought by Mr. Levant on the motion was unchanged. Mr. Levant’s counsel asked that I defer Mr. Levant obtaining the order to strike in response to questions that I had posed about Mr. Day’s evinced intention to make payments. Notably, after making submissions on the amended relief, Mr. Levant’s counsel then resumed submissions on the factors applicable in a motion to strike. Mr. Day then made responding submissions.
[10] The analytical framework for a motion to strike was properly still applied. Before I could entertain Mr. Levant’s amended request for relief, Mr. Levant still had to satisfy me that he was entitled to an order striking Mr. Day’s defence in the first place. I found that he was not and dismissed the motion. The specific relief sought by Mr. Levant on terms and timing of striking Mr. Day’s defence thereby became moot.
[11] I have exercised my discretion to make an order requiring payment of the outstanding costs awards within thirty days and permitting Mr. Levant to move again if Mr. Day fails to comply with my order. That order confirms that my dismissal of Mr. Levant’s motion is without prejudice to him moving again if Mr. Day fails to comply with my peremptory deadline. If Mr. Day wishes to challenge my disposition, then his avenue of recourse is by way of appeal, not a case conference before me.
[12] Any similarities between my ultimate disposition and the amended relief sought by Mr. Levant is a matter for costs, as are the cost consequences (if any) of Mr. Levant seeking to amend his relief in the middle of his motion submissions. Breach of rule 1.09 may also be addressed in the pending costs submissions, if either party feels it is a factor I should consider in deciding costs of this motion.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: February 7, 2023