Alan MacLean Plaintiff And: The Little Poultry Company Inc. v. Randy Pitre, 2024 PESC 5

SUPREME COURT OF PRINCE EDWARD ISLAND Citation: MacLean v. The Little Poultry Company Inc. , et al., 2024 PESC 5 Date: 20240119 Docket: S1-GS-29793 Registry: Charlottetown Between: Alan MacLean Plaintiff And: The Little Poultry Company Inc. and Randy Pitre Defendants Nathan Kember, Strategic Holdings Inc., NK Quality Restoration Inc., 102455 P.E.I. Inc., Paul Davis Restoration Inc., Ann Worth, Commercial Eastern Inc. O/A Cushman & Wakefield Atlantic, Intact Insurance Company, Burns Wilcox Canada ULC and April Paynter Third Parties Decision on Rule 29.09 Before: The Honourable Justice Nancy L.

Key Appearances: Samson Brasseur for the Plaintiff Randy Pitre for himself and The Little Poultry Company Inc. Place and date(

s) of hearing - Charlottetown, Prince Edward Island November 16, 2023 Place and date of decision - Charlottetown, Prince Edward Island January 19, 2024

CIVIL PROCEDURE – Rule 29.09 – Motion requesting Third Party Claim proceed as a separate action – motion granted The Plaintiff MacLean sued Pitre and his company, The Little Poultry Company Inc. Pitre and his company filed a Defence and Counterclaim. Pitre subsequently filed a Third Party Claim against a number of individuals and companies. By filing and pursuing the Third Party Claim, Pitre and The Little Poultry Company Inc. will prejudice and unnecessarily delay the Plaintiff from pursuing his claim. Severing the Third Party claim causes no injustice to the Defendants or the Third Parties.

The Third Party Claim is severed and shall proceed as a separate action. RULES REFERRED TO: Prince Edward Island Rules of Civil Procedure , Rules 29.09, 1.04, 1.05. CASES CONSIDERED: Eco Forest Group v. Scott & ors. , 2001 PESCTD 84 ; Dupont Canada Inc. v. Russel Metals Inc. , [1999] OJ No 3227 (SCJ) ; Chartrand v. Feldman , 2010 ONSC 122 ; Gilbart v. Ventura Custom Homes Ltd. et al , 2003 MBQB 247 . Key, J. : I. Introduction [ 1 ] This decision follows a motion made pursuant to the Prince Edward Island Rules of Civil Procedure , (“the Rules ”), specifically Rule 29.09.

The Plaintiff, Alan MacLean, (“MacLean”) requests that the court sever the Third Party Claim from the main action against The Little Poultry Company Inc and Randy Pitre (“Pitre”) and order Pitre’s Third Party Claim to proceed as a separate action. II. Background [ 2 ] The background to the motion is set out in detail in MacLean’s affidavit issued June 29, 2023. On September 6, 2022, MacLean filed a Statement of Claim against Pitre to recover outstanding arrears for the rental of commercial kitchen equipment.

MacLean also sought the return of the equipment. [ 3 ] On October 28, 2022 Pitre filed a Defendants’ Defence and Counterclaim. At that time, Pitre indicated he would be filing a Third Party Claim. On November 8, 2022 Pitre requested MacLean consent to the filing of the Third Party Claim outside the time limits prescribed by the Rules . MacLean consented. [ 4 ] Pitre filed an Amended Third Party Claim on November 15, 2022. MacLean received a copy of the Third Party Claim on November 15, 2022 and learned that Pitre had sued ten individuals and companies.

Five Defences to the Third Party Claim were filed between November 2022 and April 2023. MacLean later learned that some of the parties named in the Third Party Claim had not, as of the filing of MacLean’s affidavit on June 29, 2023, filed Defences to the Third Party Claim. [ 5 ] On November 16, 2022 the Plaintiff served and filed his Reply to Defence and Counterclaim. Therefore, as regards the original claim, the pleadings have closed. [ 6 ] Since November 2022 there were multiple motions filed, two or more of which have been heard and several await hearing dates.

Further, there have been multiple lengthy case management conference calls requiring the participation of MacLean’s counsel. There has been substantial email correspondence among the parties and their counsel. There are currently several appeals to be heard in the Court of Appeal. It has been approximately 16 months since MacLean filed his claim. He is no further ahead in having the trial of his action heard. [ 7 ] Notably, none of the Third Parties (“the third parties”) objected to, or appeared at, the motion to sever. III. Preliminary Issue [ 8 ] The matter was heard on November 16, 2023.

Pitre advised the court a number of days prior to the hearing he would be requesting an adjournment. He was advised that such a request would need to be made to the hearing judge. On November 14, 2023, two days prior to the hearing, Pitre served all parties a Motion for Adjournment. The record included an affidavit but no factum.

On a motion, Rule 37.07(6) requires a motion record, supporting affidavit and factum, all of which are to be served on all parties at least 10 days prior to the hearing date. [ 9 ] MacLean’s motion record requesting the court sever the Third Party claim was filed on June 29, 2023, almost 5 months prior to the hearing taking place. Since that time there have been numerous case management conference calls with Pitre, all counsel, and a judge. During the October 6, 2023 case management call Pitre was made aware the matter was to be heard in November.

It was later discovered that the original date of November 13, 2023 was a holiday. The date of November 16, 2023 was provided to Pitre and

MacLean’s counsel. [ 10 ] In addition to casting aspersions against those who set the hearing date, Pitre argued there is an uneven playing field caused by what he says is unfair treatment to him by, in particular, the Prothonotary and one of the lawyers acting for Kember and his companies. He described their alleged actions as providing the other parties with a tactical advantage and, as a result, his motion of complaint against the lawyer and the prothonotary should be heard prior to MacLean’s motion. There was no evidence provided to support Pitre’s allegations.

The allegations Pitre made in his affidavit in support of the adjournment are offensive, vexatious, and frivolous. [ 11 ] Essentially, Pitre requested the adjournment to ensure that his complaints against the Prothonotary and the lawyer were heard prior to the Rule 29.09 motion. In effect, his request was that the court accommodate his litigation strategy as opposed to providing efficient and timely use of its limited resources.

At no time did he explain how an adjournment would not be prejudicial to MacLean. [ 12 ] Pitre also submitted that he could not get ready for the Rule 29 motion because he has a heavy workload and

schedule in the courts. The court reminded him that he and no one else is responsible for his heavy workload. He also referred to conversations he has had with Gormley, C.J. regarding his appeals. Pitre was advised that any such conversations, or his

interpretation of them, were irrelevant to the matter before the court. [ 13 ] Further, Pitre accused MacLean’s counsel of wrongdoing in making the decision to proceed with the Rule 29.09 motion on this particular date when Pitre had advised the court that neither November 16th, nor any other date, was suitable to him.

There was no evidence to support that allegation. [ 14 ] Finally, Pitre was advised that his written threat that moving ahead with MacLean’s motion would generate an appeal was of no concern to the court. [ 15 ] Rule 37.12 (1) permits a judge, on the hearing of a motion, to grant the relief sought or dismiss or adjourn the motion in whole or in part. Pitre had almost 5 months to prepare for MacLean’s motion. He failed to do so. Unsupported allegations of wrongdoing and Pitre’s personal litigation strategy are not valid reasons for the court to adjourn a motion.

An adjournment would have prejudiced MacLean who unfortunately has been drawn into the Third Party Claim. Therefore, Pitre’s motion to adjourn was dismissed. IV. Issue [ 16 ] The sole issue before the court is whether Pitre’s Third Party Claim should proceed as a separate action. Pitre’s position: [ 17 ] Pitre had, prior to the motion date, requested the opportunity to cross-examine MacLean on his affidavit. MacLean was present in the court on the hearing date. The court asked Pitre if he wished to cross-examine MacLean.

Pitre indicated that he was steadfast in his objection to proceed with the motion and his request for an adjournment. The court reminded Pitre that it had dismissed his motion for an adjournment. Pitre advised he would not be cross-examining MacLean. MacLean’s position: [ 18 ] Counsel for MacLean submits that his client’s claim is essentially one of breach of contract. MacLean claims he had an oral contract with Pitre for the rental of commercial kitchen equipment. Pitre is alleged to have defaulted on the payments. MacLean claims not only the amounts owing to him but also the return of the equipment.

Therefore, MacLean must prove there was a contract, that Pitre breached the contract, and that MacLean suffered damages resulting from the breach of contract. Pitre has defended against the claim and has counter-claimed against MacLean. [ 19 ] However, MacLean submits his claim against Pitre should not be “mired down” (para. 13 Plaintiff’s factum) while the court deals with Pitre’s claims against 10 third parties with whom MacLean had no contractual relationship.

In essence, MacLean submits he is not involved, either directly or indirectly, with any of the parties Pitre has named in the Third Party Claim, and by requiring MacLean to wait on the sidelines while motions and appeals are heard in respect of the third parties, is unfair and prejudicial to him. Finally, MacLean argues severing the Third Party Claim and ordering it to proceed as a separate action will prevent undue delay and prejudice to MacLean and allow him to proceed against Pitre in a timely manner. V.

Analysis [ 20 ] MacLean’s motion is made pursuant to Rule 29.09: RULE 29 THIRD PARTY CLAIM … PREJUDICE OR DELAY TO PLAINTIFF 29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.

[ 21 ] The only decision published on Prince Edward Island in respect of this rule is Eco Forest Group v. Scott & ors. , 2001 PESCTD 84 (“ Eco Forest ”). There the plaintiff sought an order requiring the defendants’ third party claim proceed as a separate action.

DesRoches, C.J. stated the primary consideration in the application of Rule 29 is to permit the parties involved in a dispute arising from the same fact situation to have their rights determined without a multiplicity of proceedings. [ 22 ] However, after reviewing the pleadings and determining the relationships between the parties, the court denied the plaintiff’s motion.

The court found that the plaintiff would not be prejudiced, nor would the proceedings be unnecessarily delayed by having the third party claim proceed at the same time as the main action. [ 23 ] The Eco Forest decision may be distinguished: [26] One of the primary considerations in the application of Rule 29.01 is that all parties involved in the same factual situation should have their rights determined without a multiplicity of proceedings. In this case although the proceedings involve three separate legal entities, the same people control the plaintiff and the third party.

The third party is the majority shareholder of the plaintiff, while the defendant is its minority shareholder. Counsel for the plaintiff acknowledged he represents the plaintiff as well as the third party. In an affidavit filed on the hearing of this motion, Richard (Richie) Mann identified himself as the president of the plaintiff and a consultant to the third party.

Indeed, as already noted above, the letter to the defendant from the third party accepting the defendant’s offer to sell his shares is signed by Richard Mann. [Emphasis added] [ 24 ] Therefore, while Eco Forest sets out the applicable law, the decision may be distinguished from the case at hand. In this case there is no relationship between MacLean and the third parties. [ 25 ] A review of the pleadings reveals that one of the third parties was implicated in Pitre’s Statement of Defence and Counterclaim.

Specifically in paragraphs 5, 6 and 7 of his Counterclaim, Pitre made allegations relating to one of the third parties. There was no relationship between MacLean and the third party in question. At best, MacLean may be called as a witness during the trial between Pitre and the particular third party.

One of the third parties may be called as a witness in relation to the location of the missing commercial equipment. [ 26 ] The Statement of Defence and Counterclaim states, in brief: 1) that Pitre denies being indebted to MacLean or having the equipment in question; 2) that MacLean illegally entered property not owned by Pitre; 3) that MacLean has spoken to one of the third parties; and 4) that MacLean is colluding with one of the third parties. [ 27 ] The Third Party Claim, however, relates to Pitre’s lease of real property owned by a third party and one of his companies also named as a third party to the claim.

In the Third Party pleadings filed to date there are only two references to MacLean. One is to correct the spelling of his name. Secondly, in the defence filed by Nathan Kember and Strategic Holdings Inc., paragraph 6(

c) states that the substance of the claim against the third parties “is unrelated to the main action.” On the basis of my review of the pleadings and the sworn affidavit of Maclean, there are no facts in common between the main action and the claim against the third parties, nor does the Third Party Claim logically flow from the main action. [ 28 ] Rule 29.09 requires the court to determine any prejudice or delay prospectively. Therefore, the question is not whether MacLean has been delayed or prejudiced in the past, but whether he will be in the future.

The answer is yes. [ 29 ] Jurisprudence from other provinces supports this position. Ontario’s Rule 29.09 is identical to that of Prince Edward Island. The case of Dupont Canada Inc. v. Russel Metals Inc. , [1999] OJ No 3227 (SCJ) (“ Dupont ”) is instructive. In a case where breach of contract was also at issue, the court severed the Third Party Claim from the main action.

At paragraphs 8, 9 and 10, Master Clark reviews the purpose of the rule: 8 Rule 29.09 stipulates that "A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party action..." and provides the court with very broad powers to protect the plaintiff in that regard. The rule looks forward, it does not look backward. The rule does not require certain events to have occurred before the court may act to protect the integrity of the main action. 9 I should say in passing that I do not accept Mr. Bresner's submissions that the plaintiff must show prejudice and unnecessary delay on this motion.

That would limit the court to looking backward, and as I have already held, rule 29.09 requires the court to look ahead. 10 Rule 29.09 requires the court to look into the present circumstances of the main action and the Third Party action and assess whether or not the main action is, or may be, put in jeopardy by the Third Party action.

The words of rule 29.09 are "the court may make such order or impose such terms… as are necessary to prevent prejudice or delay…". [ 30 ] However, Master Clark added the following caution: 11 It is important to note the caveat that any such order must avoid "injustice to the defendant or the third party.” [ 31 ] As in the Dupont decision, there is no certainty when, or even if, the third parties will “catch up” to the main proceeding given the number of motions which have been, but more importantly, are still being filed by the third parties.

Further, each of the motions in which Pitre has been unsuccessful is under appeal. As such, MacLean will be delayed indefinitely by the upcoming motions and appeals, and will be prejudiced as a result. [ 32 ] Once such a determination is made, the court must then ask itself whether an order severing the Third Party Claim from the main

action will cause an injustice to Pitre or the third parties. As noted, Pitre made no submissions on the Rule 29.09 motion. In Dupont the Master determined that at the option of the parties, the trial could be heard at the same time. He also noted at paragraph 16 and 16a: 16 That delay satisfies part of rule 29.09, but would an order severing the action work an injustice to the defendant or the third-party? In that regard, I do not accept Mr. Bresner’s position that since the plaintiff will get interest on his judgement, it is suffering no prejudice in being delayed.

The plaintiff has asked the court to intervene with the defendant on its behalf and the defendant has joined issue. The plaintiff is entitled to have its rights determined, and to see the fruits of its litigation (or otherwise) as soon as the system can accommodate the trial. It is no answer to say that prejudgment interest in [sic] running and therefore no injustice is occurring. 16a The word “injustice”… connotes a higher degree of prejudice, than the word prejudice does, and I accept that submission.

In doing so I cannot see any injustice that would occur to the defendant or the third party if a severance is ordered. … [ 33 ] MacLean’s case centers on allegations of a breach of contract. Pitre’s claims against the third parties do not implicate MacLean nor, for that matter, does the determination of MacLean’s breach of contract claim involve the third parties. As noted, none of the third parties have defended against MacLean, nor have they objected to this motion. [ 34 ] Finally, unlike the Dupont decision there appears to be nothing to be gained by trying all of the claims at the same time.

There is no common factual connection which justifies the bias against a multiplicity of proceedings. [ 35 ] I also note the decision of Gareau, J. in Chartrand v. Feldman , 2010 ONSC 122 (“ Chartrand ”). There, the Plaintiff moved to sever or bifurcate the third party claim. [ 36 ] In Chartrand , the court disagreed with the plaintiff’s submission that the original claim was a simple claim of contract for money owing.

After dismissing the motion to sever, Gareau, J. noted that ordering the proceeding to follow a strict timetable would prevent any undue delay to the Plaintiff. [ 37 ] In my review of the pleadings, unlike the strategy set out in Chartrand , it will not be possible for the court to manage the timing of the main claim and the claims against ten third parties for a number of reasons including that Pitre is self-represented and has no experience in litigation strategy. As such, the solution proposed by Chartrand will not assist this court. [ 38 ] In Gilbart v.

Ventura Custom Homes Ltd. et al , 2003 MBQB 247 , the plaintiffs had no contractual relationship with the third parties, nor did the third parties defend the plaintiff’s claim. [ 39 ] At paragraph 18 of the decision Schurfield, J. set out the following considerations in a motion to sever: [18] In a severance motion, the first step in the factual analysis is to ensure that the severance requested will indeed expedite the process. Second, the court must attempt to balance the equities between the parties.

Finally, the review must be performed in the context of the logical bias against permitting multiple actions flowing from the same event. VI.

Summary [ 40 ] The motion is granted. In making my decision to sever the main action from the claim against the third parties I have considered the following factors: 1) MacLean contracted directly with Pitre and not with the third parties. 2) The allegations raised by Pitre in the Third Party Claim have no connection to the claim by MacLean against Pitre; 3) None of the third parties defended MacLean’s claim; 4) None of the third parties appeared at the motion to sever nor opposed MacLean’s motion to sever; 5) Pitre may successfully defend his claim against MacLean.

However, the court will still be required to adjudicate the issues between Pitre and the third parties. 6) If Pitre fails in his defence, he retains the right, although in a separate proceeding, to continue with his action against the third parties; [ 41 ] Permitting the claim between MacLean and Pitre to move forward will expedite the process. MacLean will be able to proceed to a final determination of his claim.

In addition, in balancing the equities among the parties, I am unable to find any injustice to Pitre or the third parties by severing the Third Party Claim from the main action. [ 42 ] Lastly, counsel for MacLean also reminded the court of Rule 1.04 which, as he noted, guides the

interpretation of the Rules :

INTERPRETATION General Principle 1.04

(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [ 43 ] The court must always try to balance the rights of all the parties in a proceeding. Just as important is Rule 1.04(2): Proportionality

(2) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of

the issues, and to the amount involved, in the proceeding. [ 44 ] In this instance, a proportionate and expeditious measure is the severing of the Third Party Claim from the main action and allowing the Third Party Claim to proceed as a separate action. VII.

Conclusion [ 45 ] Having dismissed Pitre’s motion for an adjournment, having reviewed the documents filed on behalf of MacLean and the pleadings, and having heard the submissions of counsel, the court orders that the Third Party Claim proceed as a separate and distinct action. [ 46 ] Rule 1.05 permits the court, when making an order, to impose such terms and give such directions as are just. Hereinafter, the registrar shall designate and identify the Third Party Claim with a new court file number. All proceedings with respect to the Third Party Claim shall be identified with the new file number.

The new file shall identify The Little Poultry Company Inc. and Pitre as the Plaintiffs (Defendants in file GS-29793) and the Third Parties as Defendants (Third Parties in GS-29793). Case management of MacLean’s claim and the Third Party Claim shall occur separately. MacLean and Pitre shall proceed with MacLean’s claim and Pitre’s defence under the direction of the case management judge. A copy of the Third Party Claim shall remain in the original file. A copy of this decision and the order shall be included in the new file. All other documents relating to the Third Party Claim shall be moved to the new file.

VIII. Costs [ 47 ] MacLean claims the costs of this motion. Pitre asks that costs be in the cause. MacLean is the successful party in this proceeding. He shall have his costs on a partial indemnity basis. MacLean shall serve and file his Bill of Costs within 14 days of the date of this decision, namely no later than February 12, 2024. Pitre shall serve and file his reply no later than February 16, 2024. The submissions on costs shall be no longer than 3 double spaced pages plus attachments. Once the submissions have been served and filed, I will render a decision on costs. ____________________________ Key, J.

January 19, 2024