CITATION: Gatti v. Avramidis, 2016 ONSC 606

DIVISIONAL COURT FILE NO.: 552/15

COURT FILE NO.: CV-12-464441

DATE: January 25, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joseph Gatti, Plaintiff/Moving Party

AND:

Terry Avramidis, The Toronto Dominion Bank (c.o.b. TD Canada Trust), 6558887 Canada Inc, 389915 Canada Inc., Ingram Jeffrey Eshun, Roger Blair and Bernadette Bowman, Defendants/ Responding Parties

BEFORE: Thorburn J.

COUNSEL: Bruce O’Toole, for the Plaintiff/Moving Party

Martin Greenglass, for the Respondent, TD Bank, Edward Merifield for the Respondent, Avramidis

HEARD: In writing

ENDORSEMENT

Overview

[1] All parties consent to the Plaintiff’s request for leave to Appeal the Order of Wright J. dated October 1, 2015.

[2] In her Order, the motions judge adjourned a motion for summary judgment brought by the Plaintiff and refused to seize herself of the matter.

The Nature of the Claim

[3] The Plaintiff’s claim is in negligence and negligent misrepresentation. In the Statement of Claim, the Plaintiff claims that Terry Avramidis, an employee of the Toronto-Dominion Bank, sold him an investment. The money for the investment was borrowed on Gatti’s TD Bank line of credit. The monthly payments to be paid ceased after a few months and the Plaintiff lost the principal amount he invested.

[4] The Plaintiff claims he was the victim of an illegal trading scheme. The perpetrators of the illegal investment scheme failed to defend this proceeding and have been noted in default.

[5] There is no allegation that the Defendant, Avramidis, was part of the illegal scheme. The allegation is that Avramidis traded without registration, contrary to the Securities Act, was negligent and made negligent misrepresentations.

[6] The Plaintiff alleges that the TD Bank is vicariously liable for Avramidis’ conduct as Avramidis was an employee of the Bank, there is a significant connection between the creation or enhancement of the risk and Avramidis’ wrongful conduct, and the TD Bank could and should have minimised the harmful activity.

The Motion for Summary Judgment

[7] Myers J. ordered that the motion for summary judgment was to proceed on October 1, 2015. As this was a test case involving fourteen actions, Myers J. ordered that the Plaintiffs in all fourteen actions attend to be examined for discovery. All fourteen plaintiffs were examined for discovery. Thereafter, there were a number of answers to undertakings, questions taken under advisement and refusals. Some of them remained unanswered at the time of the motion.

[8] All parties attended the motion for summary judgment on the date scheduled by Myers J. All parties advised the court that they wished to proceed with the motion.

[9] On the motion, the opposing parties took the position that all parties have an obligation to put their best foot forward to ensure a complete record before the Court. The Plaintiff’s failure to answer all undertakings, questions taken under advisement and refusals, was therefore a ground for dismissal of the motion for summary judgment.

[10] Notwithstanding the express desire of all parties to proceed with the motion, the motions judge adjourned the motion and refused to seize herself so that the matter would be brought back before her.

Conclusion

[11] The Parties agree and it is clear that the decision of the motions judge is inconsistent with the Supreme Court of Canada’s decision in Hryniak v. Maudlin, 2014 SCC 7 at paras. 28, 76 and 78, that the courts should provide a proportionate, timely and affordable process for adjudication, rely on trial management orders that are available in the Rules of Civil Procedure, and/or the judge before whom the motion is brought should seize herself of the matter.

[12] It is also inconsistent with the Civil Practice Court Advisory that motions are to be heard within 100 days of booking and adjournments are not to be granted within two days of the motion date. (Cali’s Plumbing Ltd. V. National Dispatch Services Ltd., 2015 ONSC 1918 at para. 6)

[13] This case, although it is a test case for others, is not a complex case and the motion should have been heard within a reasonable time. It was not.

[14] The requirements under both Rule 62.02(4) (a) and 62.02(4)(b) have been met. There is a conflicting decision of the Supreme Court of Canada and it is desirable that leave to appeal be granted because the Hryniak decision of the Supreme Court of Canada addresses a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[15] Moreover, there is good reason to doubt the correctness of the decision before me, given the directions in the Supreme Court of Canada in Hryniak and the Civil Practice Court Advisory set out above. The ability of a party to have timely affordable access to the court is a matter of importance that goes beyond the interests of the immediate parties and involves questions of public importance relevant to the development of the law and administration of justice. (Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

[16] For these reasons, leave to appeal is granted.

[17] Given the position of all parties that leave to appeal is warranted, there is no order as to costs.

Thorburn J.

Date: January 25, 2016