



COURT OF APPEAL FOR ONTARIO

CITATION: Candito v.
    Nmezi, 2015 ONCA 793

DATE: 20151119

DOCKET: M45706 (C61046)

Brown J.A. (In Chambers)

BETWEEN

Marilena Candito

Plaintiff

and

Chinedu Nmezi, Paulette Rhodzn and
Economical Insurance Group

Defendants (
Appellant
/

Moving Party
)

and

State Farm Mutual Automobile Insurance Company

Third Party (Respondent/

Responding Party)

James Tausendfreund, for the moving party

Philip Pollack, for the responding party

Heard: November 17, 2015

ENDORSEMENT

OVERVIEW

[1]

Civil litigation in the public courts can only deliver timely and
    cost-effective justice if the parties perform certain basic procedural
    obligations. One such obligation requires a party to settle an order under
    appeal in a timely fashion so that an appellant can perfect its appeal within
    the timeframe stipulated by the
Rules of Civil Procedure
. This
    obligation has been recognized for some time. Almost fifteen years ago, The
    Advocates Society specifically addressed this obligation in its
Principles
    of Civility for Advocates
. Principle 16 provides, in part, that counsel
    should promptly prepare and submit a proposed order to opposing counsel and
    attempt to reconcile any differences before the draft order is presented to the
    Court.

[2]

In the present case, the respondent, State Farm Mutual Automobile
    Insurance Company (State Farm), failed to perform that basic obligation in a
    misguided attempt to thwart the ability of the Economical Insurance Group (Economical)
    to exercise its right of appeal.

[3]

State Farms litigation tactics compelled Economical to bring a
    motion to extend the time to perfect its appeal.
Although the substantive
    relief sought by Economical ended up going on consent, for the reasons set out
    below I conclude that State Farms unreasonable litigation conduct justifies
    awarding Economical partial indemnity costs of $5,000.00.

BACKGROUND EVENTS

[4]

The issue in Economicals third party claim
    against State Farm was a straight-forward one: at the time of a motor vehicle
    accident in February 2005, were the defendants, Chinedu Nmezi and Paulette Rhodzn,
    insured by a valid policy of auto insurance issued by State Farm, or were they
    covered by uninsured motorist coverage under the plaintiffs policy with
    Economical?

[5]

Beginning in early 2012, State Farm scheduled
    five return dates for a motion for summary judgment to dismiss Economicals
    third party claim. State Farm finally proceeded with its motion on August 20,
    2015 before Wright J., who granted summary judgment dismissing Economicals
    third party claim. Wright J. gave oral reasons for her decision.

[6]

Economical exercised its right to appeal, and it
    served a notice of appeal and certificate respecting evidence on September 17,
    2015, within the 30-day period stipulated by r. 61.04(1) of the
Rules of
    Civil Procedure
. It filed those materials with the court on September 24,
    2015.

[7]

Under r. 61.09(1), Economical was required to
    perfect its appeal within 30 days after filing its notice of appeal, in this
    case by October 26, 2015. To perfect its appeal, Economical needed to include
    in its appeal book a copy of the order appealed from as signed and entered, and
    a copy of the reasons of the court appealed from: rr. 61.10(1)(c) and (d).
    Obtaining those two items did not lie within the sole control of Economical  it
    needed to obtain a transcription of the oral reasons of Wright J. from the
    court, and required the co-operation of State Farm to sign and enter the order
    of Wright J.

[8]

Economical sought a transcript of the motion
    judges reasons on September 21; it received them on October 19, 2015, just a
    few days before the deadline for perfecting the appeal.

[9]

Although State Farm succeeded on its motion for
    summary judgment, it did not act to take out the order. Of course, it is open
    to any party affected by an order to prepare a draft of the formal order and
    send it to all other parties represented at the hearing for approval as to form
    and content: r. 59.03(1). Although Economical could have started the process of
    preparing a draft order immediately upon serving its notice of appeal, it did
    not begin that process until two days after receiving the transcribed reasons
    of Wright J.

[10]

In any event, that delay proved of no
    consequence because of the subsequent conduct of State Farm. On October 21 
    still within the perfection period  Economical sent a draft order to State
    Farms counsel for approval as to form and content. It was a simple draft order:
    motion granted; costs awarded. Economical also requested State Farms consent
    to a 60-day extension to perfect the appeal in light of the time it took to
    obtain the transcribed reasons.

[11]

No response from State Farms counsel.

[12]

Economicals counsel left a phone message for
    State Farms counsel on October 23; State Farms left a message on October 26,
    the deadline for the perfection of the appeal.  When counsel finally spoke on October
    27, State Farm was not prepared to consent to an extension of time to perfect the
    appeal nor did it approve the draft order as to form and content.

[13]

On October 28, Economical received from the
    court a notice of intention to dismiss the appeal for delay unless it was
    perfected by November 17, 2015.

[14]

On November 2, State Farms counsel advised
    Economical that his client would be opposing any motion to seek an extension of
    time for perfecting the appeal on the ground that Economical has not provided
    reasonable grounds for an extension. State Farms counsel remained silent on
    the form of the draft order. Economical immediately brought this motion to
    extend the time to perfect.

[15]

At the hearing of the motion, State Farms
    counsel explained his clients silence on approving the order  since it was
    opposing the motion to extend the time to perfect the appeal, State Farm planned
    to wait until that motion was dealt with by the court before settling the order
    appealed from. Given that State Farms failure to settle the order in a prompt
    fashion was the main obstacle to perfecting the appeal, one would have thought
    that the unreasonableness of this position would have been apparent to State
    Farm.

[16]

On November 5, Economical filed the inevitable
    two inches of materials in support of its motion to extend: motion record,
    factum, and book of authorities.

[17]

At the same time, it served an offer to settle
    the motion on the basis of extending the time to perfect until January 17, 2015
    and State Farms payment of $3,000 in costs. No immediate uptake by State Farm.

[18]

On November 11, 2015, State Farm finally
    approved the draft order and advised it would agree to an extension of time to
    perfect until December 17, 2015. State Farm made no offer to pay any of
    Economicals motion costs.

[19]

At the hearing of the motion on November 17,
    State Farms counsel advised that his firm submitted the approved order to the
    Superior Court of Justice for signing and entry the week before. The Registrar
    of that court was not prepared to process the order on an expedited basis. Counsel
    evidently did not draw the Registrars attention to the policy of this court
    set out in s. 11.2(2) of its
Practice Direction Concerning Civil
    Appeals in the Court of Appeal
that summary judgment
    appeals will be expedited without the necessity of an order to that effect.

[20]

The parties have now agreed to an order
    extending the time to perfect the appeal until December 17, 2015, and I grant
    that order.

COSTS ANALYSIS

[21]

The parties cannot agree on costs. Economical
    seeks its partial indemnity costs of the motion in the amount of $5,000.00, all
    in. State Farm submits that such a request is unreasonable and that each side
    should bear its own costs.

[22]

I disagree with State Farms submission. Economicals
    request for costs is most reasonable. The unreasonableness in the events which
    transpired consisted solely in State Farms failure to perform its obligation
    to settle an order subject to appeal in a timely fashion. For State Farm to
    take the position that it would not settle the order under appeal until
    Economical had argued its motion to extend the time to perfect amounted to
    unacceptable litigation gamesmanship. From the submissions it made at the
    hearing of the motion, it is apparent that State Farm delayed responding to
    Economicals requests to settle the order so that it could manoeuver Economical
    into a position where it might be required to argue the merits of its appeal in
    order to secure an extension of time to perfect. That was the thrust of the
    submissions made by State Farms counsel based upon a book of authorities
    tendered at the hearing.

[23]

In my view, such unreasonable litigation tactics
    by State Farm would have merited an award of full indemnity costs against it. However,
    Economical only requested partial indemnity costs, so I am limited by its
    request.

DISPOSITION

[24]

For the reasons set out above, I order that the
    time for the perfection of this appeal is extended until December 17, 2015. I
    direct State Farm to contact the Registrar of the Superior Court of Justice for
    the Toronto Region and ask that the order of Wright J. be issued and entered on
    an urgent basis so that the appeal book can be finalized before the date for
    perfection. Finally, I order State Farm to pay Economical its partial indemnity
    costs of the motion in the amount of $5,000.00, inclusive of HST and
    disbursements, by Tuesday, November 24, 2015.

David Brown
    J.A.


