Dorion v. 7853742 Canada Inc.et al 2023 ONSC 929
Court File No. CV-19-0056
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM DORION
Plaintiff
Defendant by Counterclaim
- 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, JUSTIN NOSEWORTHY
and RONALD NOSEWORTHY
Defendants
Plaintiffs by Counterclaim
P R O C E E D I N G S A T M O T I O N
R U L I N G S
BEFORE THE HONOURABLE JUSTICE P. E. ROGER
on January 31, 2023, at BROCKVILLE, Ontario
APPEARANCES:
A. Lister
Counsel for the Plaintiff
J. Margolin
Counsel for the Defendants, 7853742 Canada Inc et al
C. Hammond
Counsel for the Defendant, Justin Noseworthy
Tuesday, January 31, 2023
U P O N R E S U M I N G:
RULINGS, ROGER, J.
The corporate defendants and the defendant, Ronald Noseworthy, bring a motion seeking the adjournment sine die of the trial of this action, which is scheduled to start on March 27, 2023, and they seek as well an order for case management.
The defendant, Justin Noseworthy, brings a motion seeking relief against joinder for the claims against him and for his counterclaim to be heard separately from the claims made against the other defendants.
For reasons that follow, both motions are dismissed.
I deal first with the motion seeking a separate trial or a separate hearing for the defamation claims made against Justin Noseworthy.
Rule 5.05 of the Rules of Civil Procedure is applicable. That rule gives the Court discretion to make such an order. Discretion requires the Court to do what is fair and just considering all relevant circumstances.
There is no question that a two-week jury trial is a costly endeavour for all involved. The defendant, Justin Noseworthy, has provided evidence that he runs a small business, and that attending a two-week trial will impact his business negatively, as he works alone. I accept that. However, that is not the end of the analysis.
The plaintiff has elected to proceed by judge and jury, and to date no party has brought a motion seeking to strike the jury notice. A jury trial of only the claims made against the defendant, Justin Noseworthy, will nonetheless take some time to try, considering opening remarks, closing remarks, and the time required for the charge to the jury. This will, nonetheless, be a costly exercise for this defendant because the preparation time for this trial will be fairly similar, even if the trial will be shorter. What is required for preparation and what is required for a shorter trial will nonetheless impact his business negatively, albeit to a somewhat lesser extent.
Moreover, the defendant, Justin Noseworthy, would probably be required to be a witness in the wrongful dismissal action and defamation action against his father, as he was then involved with the corporate defendants. His attendance to testify in this other trial would also negatively impact his business.
Overall, the time spent preparing for his shorter trial, attending his shorter trial, and attending as a witness at the other trial, would maybe be less than attending a two-week trial, but it would still be fairly costly and disruptive to this defendant.
On the other hand, it is apparent from reviewing the pleadings that there is overlapping factual issues that tie these claims together. Ronald Noseworthy is the father of Justin Noseworthy, and at the time Justin was an employee of at least one of the corporate defendants. The plaintiff’s employment apparently ended about March 1, 2019, and the plaintiff alleges that about March 3, 2019, he learned that Justin had made the alleged defamatory statements in a number of telephone calls to suppliers, contractors, or members of the local business community. These claims are related to the alleged dismissal, and some of these facts and some of this evidence would have to be led in this second trial in any event. As well, the above says nothing of the factual overlap between the defamation claims, the one made against Ronald Noseworthy and the one made against Justin Noseworthy, which are considerably linked.
Agreeing to the defendant’s request would result in two trials, each dealing with similar facts, at least in the background, and each dealing with defamation claims, one trial against the father, and the other against the son, but both arising from a fairly similar or connected factual background.
When I balance all of the evidence, what is fair and what is just in the circumstances of this matter is to have one trial dealing with these factually-connected claims, even if that one trial will be somewhat longer and more costly for the defendant, Justin Noseworthy. This is so because overall, having one trial is what will make justice in the circumstances of this case more accessible, proportionate, timely and affordable to all parties.
I deal next with the request for a sine die adjournment of the trial that is scheduled to start on March 27th, 2023.
Rule 52.02 of the Rules of Civil Procedure is applicable. Again, the relief sought of an adjournment is discretionary, focussing on what is fair and just in the circumstances.
Counsel for the corporate defendants and for Mr. Ronald Noseworthy does not allege that he cannot be ready for trial on March 27th, 2023. He has not filed evidence that his calendar is full, or of conflicting commitments, or of being overburdened in between, or of not having time to deal with this matter. An affidavit was filed only by a paralegal of his office, and this affidavit does not say that being ready for trial is not possible, or that somehow proceeding on March 27th will not be fair for these defendants. Indeed, it was not contested during oral arguments at this motion that this action, being a wrongful dismissal action and a defamation action on very limited facts, is not a complicated trial to prepare, and counsel for the moving defendants admitted during oral arguments that he would make himself ready for March 27th if the adjournment was refused.
This is not about not being able to be ready on March 27th. Rather, the moving defendant’s arguments focus on the defendant’s new counsel’s opinion that this action could be resolved more expeditiously by some combination of motions brought under rules 20 and 21 of the Rules of Civil Procedure. The defendants’ argument is focussed on alleged savings of time for the system, and maybe saving time for the parties as well.
Rule 20 and rule 21 motions can serve a useful purpose, absolutely they can, but rarely, rarely can they serve a useful purpose on the eve of trial. As well, bifurcated motions for summary judgment or judgment for summary judgment where only part of the relief might be granted, are rarely helpful, and even less helpful on the eve of trial, because even if granted, issues remain to be tried, and it’s hard to see what has been accomplished.
The trial date in this action was set last summer, in August, after a settlement or a pretrial conference. Since August 2022 the trial date has been known. Examinations for Discovery have been completed quite some time ago. This is not a matter of visiting any omission of prior counsel on the defendants, when the defendants previously had three separate lawyers and ample opportunity to bring these motions at a much more appropriate time.
The eve of trial is rarely the appropriate time to bring motions for summary judgment or a rule 21 motion because these motions rarely provide a more expeditious means of resolving the action at that late stage of the game, when everything else has occurred and the trial might or might not be avoided. Moreover, and more specifically to this matter, it is apparent from the pleadings that this is probably not a case that lends itself to a successful motion for summary judgment, most likely explaining why none of the other three counsel acting for these defendants thought it was a good idea to bring such a motion.
There seems to be quite a number of factual disputes between the parties relying on the credibility of the parties. Any one of these issues, and there seem to be many, could give rise to a genuine issue requiring a trial.
What is fairer, more proportionate, faster and less expensive at this time is for the parties to proceed to trial. We are on the eve of trial. The next step is the trial. A motion for summary judgment would probably involve cross-examination which might require a number of days and, might, at best, result in an uncertain result.
On the other hand, a trial is scheduled to start on March 27. It will last about nine days, that’s right, maybe ten, maybe less, but it is scheduled to start on March 27th and I know for certain that a decision will be rendered probably sometime in April.
There is no prejudice to the moving party of being forced to proceed to trial on March 27th, as they have not filed evidence that they cannot be ready for trial on March 27th. Rather, they have said that they would, if forced to, that they would be ready for trial on March 27th.
On the other hand, there is prejudice for the plaintiff in delaying this trial and allowing what would then be motions, uncertain motions to be brought. Nothing is assessed in a vacuum. If we could have a trial in 30 days from March 27th, that might be a good idea. But we cannot. The parties have not brought any evidence of alternative dates. They seek an adjournment sine die, and like I said, I would not grant an adjournment sine die, I would grant an adjournment to a set date, if I granted an adjournment.
I have verified with local staff, and I have been informed, as I told counsel during oral submissions, that an alternative trial date is most likely not available before sometime starting in April 2024. I was informed that although it might be possible to set this case somewhere else, it would not be first on the list and there would be no guarantee that it would proceed at that time. This, to me, seems worse for the parties than having a set date, knowing exactly when it will proceed, and knowing for sure that they will have a final decision of a jury or a judge by sometime in April or soon after.
Balancing all of the evidence, the circumstances of this case, an adjournment would not be fair and would not be just.
Consequently, the following is ordered:
The motion of the defendant, Justin Noseworthy, is dismissed.
The motion of the other defendants is dismissed.
The trial of this action scheduled to start on March 27th, 2023, is peremptorily on the parties.
With the exception of a motion dealing with outstanding undertakings and refusal, which is already scheduled to be heard in February, no other motion may be brought by any party without leave of myself or, only if I am not available, leave of another judge of this court. Any such leave shall be sought by a letter not exceeding two pages to the trial coordinator, explaining the motion, the purpose of the motion, and the efficiency of the motion.
With regards to the motion on refusal and undertakings scheduled for February 14, 2023, all parties shall immediately make best efforts to answer any and all outstanding undertakings prior to the date of that motion in order for that motion to focus on any refusals or any dispute relating to the sufficiency of previously provided answers.
Now, I think this leaves only the issue of costs. Madam Registrar, I’m going to ask you to send me by email the cost outlines that were previously sent to you. Thank you.
...RULINGS END
...SUBSEQUENT PROCEEDINGS NOT TRANSCRIBED
...COURT ADJOURNED
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Elizabeth Logan, certify that this document is a true and accurate transcription produced to the best of my skills and ability of the recording of William Dorion v. 7853742 Canada Inc et al in the Ontario Superior Court of Justice held at 41 Courthouse Square, Brockville, Ontario, taken from Recording No. 1911_CR05_20230131_090300__10_ROGERP, which has been certified in Form 1 by J. Latimer.
__________________ February 2, 2023