2024 ONSC 3460
Court File and Parties
Court File No.: CV-20-00643563 Motion Heard: 20240529 Superior Court of Justice - Ontario
Re: Flora Dimenna Designs Inc., Plaintiff And: Pace Developments St. Vincent Inc., Joseph Romano, Claudio Romano and Stephanie Capobianco, Defendants
Before: Associate Justice B. McAfee
Counsel: C. Allen, Counsel, for the Moving Parties, the Defendants, Pace Developments St. Vincent Inc., Joseph Romano and Claudio Romano M. Cooper, Counsel, for the Responding Party, the Plaintiff
Heard: May 29, 2024
Endorsement
[1] The defendants Pace Developments St. Vincent Inc. (Pace), Joseph Romano (Joseph) and Claudio Romano (Claudio) (collectively the moving defendants) bring this motion for an order amending the order of Associate Justice Wiebe dated November 25, 2022, to amend the discovery plan attached to the order to indicate that the examination for discovery of Pace and Claudio shall take place within 60 days and by removing the costs awarded against Joseph and Claudio. Costs of the motion are also sought.
[2] With respect to the amendment to the discovery plan, the moving defendants and the plaintiff Flora Dimenna Designs Inc. (the plaintiff) now agree that the examination for discovery of Pace and Claudio shall take place within 60 days after mediation. An order shall go accordingly. The contested issues remaining are the removal of the costs awarded by Associate Justice Wiebe against Joseph and Claudio and costs of the motion.
[3] The moving defendants rely on Rule 37.14(1)(b) of the Rules of Civil Procedure:
37.14(1) A party or other person who,
(b) fails to appear on a motion through accident, mistake or insufficient notice;
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
[4] They argue that Joseph and Claudio did not attend the November 25, 2022 motion before Associate Justice Wiebe because Claudio received no notice or in the alternative insufficient notice and Joseph received insufficient notice.
[5] The evidence of C. Trotta, lawyer for the moving defendants, is that she verily believes that Claudio received no notice or in the alternative insufficient notice of the motion record (para. 18 of the Trotta affidavit) and that she verily believes that Joseph received insufficient notice of the motion record (para. 30 of the Trotta affidavit).
[6] In support of their position in this regard, the moving defendants also rely on the affidavits of service.
[7] According to the affidavit of service of M. Veleno, assistant, affirmed November 10, 2022, Pace and Claudio were served with the motion record on November 10, 2022, by emailing a copy to Jonathan A. Lewis (Lewis).
[8] According to the affidavit of service of M. Veleno affirmed November 14, 2022, Joseph was served with the motion record by regular mail to the Yongehurst Road address on November 14, 2022. According to the affidavit of service of B. Agbedahunsi, process server, sworn November 15, 2022, Joseph was also served by leaving a copy of the documents in the mailbox at the front door of the Yongehurst Road address.
[9] The motion record was not served on the moving defendants in compliance with the Rules. Claudio was served by email to Jonathan A. Lewis, a lawyer who is not licensed in Ontario. Lewis is a lawyer practicing in Saint Vincent and the Grenadines who previously wrote to plaintiff’s counsel advising that he is the lawyer for Pace and Claudio (email dated November 20, 2020). Claudio subsequently served a statement of defence on his own behalf. In his statement of defence, Claudio’s address is the same as Lewis’s address. Lewis acknowledged receipt of the motion record by email dated November 22, 2022.
[10] Joseph was served by regular mail at the address he listed on his statement of defence, but he was short-served by mail. Placing a copy in a mailbox is not proper service and in any event the documents were left in the mailbox less than 7 days prior to the return of the motion.
[11] There is no evidence before me from Claudio, Joseph or anyone else with respect to when Claudio and Joseph received actual notice of the motion. The motion record was emailed to Lewis more than 7 days in advance of the motion. There is no evidence confirming whether Lewis did or did not provide the motion material to anyone upon his receipt of the motion record.
[12] The moving defendants must establish that they failed to appear on the motion through insufficient notice, a pre-condition to relief under Rule 37.14(1)(b) (D’Amico v. Claveau, 2023 ONSC 2508 (Ont. S.C.J.) at para. 10, citing Attorney General of Ontario v. 15 Johnswood Crescent at para. 34). As stated by Justice Strathy in 15 Johnswood at para. 34: A party who has simply chosen not to appear on a motion cannot complain later if he or she does not like the outcome.
[13] Without evidence of when Claudio and Joseph received actual notice of the motion, in the circumstances of this case, I am unable to determine that Claudio and Joseph failed to attend the motion due to insufficient notice or a lack of notice.
[14] I decline to remove or set aside the costs order of Associate Justice Wiebe in the circumstances.
[15] With respect to costs of this motion, in my view a fair and reasonable costs disposition is that the parties bear their own costs. While the moving defendants were not successful on the contested relief argued, the motion material for the motion before Associate Justice Wiebe could have been served in strict compliance with the Rules in an effort to avoid any alleged issues regarding notice.
[16] Order to go as follows:
- On consent of the moving defendants and of the plaintiff, the discovery plan appended to the order of Associate Justice Wiebe dated November 25, 2022 is amended to provide that the examination for discovery of Claudio and Pace shall take place within 60 days after mediation;
- The motion for an order removing the costs ordered by Associate Justice Wiebe as against Claudio and Joseph, is dismissed; and
- There shall be no costs of this motion payable to any party.
Associate Justice B. McAfee Date: June 17, 2024