Procedural irregularities ought not to trump substance

Modern courts focus on the substance, and not form, of cases. This principle is easily stated but sometimes overlooked.

Today's Court of Appeal decision in Horgan v. Tanktek Environmental Services Ltd., 2009 ONCA 109 is a good example of how a procedural irregularity ought not determine the substance of a case. Here the Court held:

[2]               After raising the issues himself, the motion judge held that the appellants' motion to add parties could not proceed because the appellants did not file a confirmation form under r. 37.10.1 and because, although the appellants had set the action down for trial, they had not requested leave to bring their motion under rule 48.04(1). Without inviting or permitting submissions on these issues, the motion judge dismissed the appellants' motion. The motion judge went on to grant the respondent's motion for partial summary judgement, dismissing virtually all of the appellants' claims

[3]                In our view, the motion judge's orders must be set aside on grounds of natural justice and fair procedure.

[4]               If the appellants' motion was not before the motion judge because the appellants had not filed a confirmation form, the motion judge could not address the rule 48.04(1) issue or dismiss the motion. In any event, it was not open to the motion judge to dismiss the motion or rule that it could not proceed under rule 48.04(1) without permitting submissions to be made.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4