CITATION: Longarini v. Huitema, 2024 ONSC 6298
DIVISIONAL COURT FILE NOS.: 553/24, 554/24 and 555/24
DATE: 20241113
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jack Huitema, Applicant (Respondent on this motion)
-and-
Tiffany Longarini, Respondent (Applicant on this motion)
BEFORE: FL Myers J
COUNSEL: Tiffany Longarini, for herself
T. David Marshall and Matt Marshall, for the Respondent
READ: November 13, 2024
ENDORSEMENT
These Motions
[1] Ms. Longarini brings motions to extend the time for her to seek leave to appeal three interlocutory orders in the same lawsuit. She asked that the motions be heard or read in writing. Davies J. directing that the motions be dealt with in writing together.
[2] Ms. Longarini and Mr. Huitema are each 50% shareholders in a marijuana retailing business. They had a falling out and both now claim that the conduct of the other has been oppressive under the corporate law.
[3] Mr. Huitema claimed in this lawsuit that through 2021 and 2022 Ms. Longarini was absent from the business as she moved to Panama and also stayed in the US for medical treatment. He claimed that she denied him access to the books and records of the business that he was left to run and that she improperly took corporate funds.
[4] Ms. Longarini claims that she was sexually abused by Mr. Huitema and that he then excluded her from the business in retaliation for her refusal of his advances and her subsequent complaints.
[5] An independent review that the company was required to conduct concluded that Ms. Longarini had valid grounds for complaint. Mr. Huitema was subsequently charged with sexual assault. The charges may be coming to trial this month.
[6] Nothing I say in this decision is meant to prejudge the outcome of the merits of the case. Although this appeal proceeding is a misstep, I urge the parties to get to trial (as ordered previously) so that the issues can be aired and resolved on their merits. Ms. Longarini is not precluded from bringing all her evidence on all her claims and defences to trial regardless of these proposed appeals not being available to her.
[7] For the reason that follow the motions to extend the time for appeal are dismissed.
Procedural Background
(a) May 9, 2023 – Henderson J.
[8] On May 9, 2023, Mr. Huitema moved before Henderson J. for an interlocutory injunction without notice to Ms. Longarini. Henderson J. ordered that on a temporary basis: the business stop paying funds to Ms. Longarini, that she transfer all electronic credentials to the companies’ accounts to M. Huitema, that Ms. Longarini be enjoined from entering into contracts or incurring liabilities on behalf of the business, and that she preserve evidence.
[9] Henderson J. schedule a return motion on notice to Ms. Longarini for May 23, 2023. He also ordered Mr. Huitema to serve the order and his materials on Ms. Longarini by email at specified email addresses by May 12, 2023.
[10] Counsel for Mr. Huitema sent materials by email to Ms. Longarini at 4:49 p.m. on May 12, 2024. There is a dispute over precisely which materials were included with the email. Ms. Longarini submits that since the email was sent after 4:00 p.m. it is deemed to have been served May 13, 2024 under Rule 16.01 (4)(b)(iv). She claims that the order of Henderson J. therefore lapsed at 4:00 p.m. on the 12th.
(b) May 23, 2023 – MacNeil J.
[11] The motion came back before MacNeil J. on May 23, 2024. Ms. Longarini was represented by counsel Clifford Lloyd at this hearing. Mr. Lloyd was only able to deliver Ms. Longarini’s responding material on the morning of the 23rd. The proceeding therefore had to be adjourned.
[12] After hearing submissions, MacNeil J. adjourned the hearing to June 9, 2024. She extended the order of Henderson J. with a few tweaks to clarify its reach and the need for compliance.
[13] In her endorsement, MacNeil J. found that service of the order on Ms. Longarini was effective under the order of Henderson J. She referred expressly to the affidavit of service that showed that the email was not sent until 4:49 p.m. But she did not say why that was effective service.
(c) June 26, 2024 – Sheard J.
[14] The motion came before Bordin J. on June 9, 2024 and was adjourned again to June 26, 2024 with the injunction continued.
[15] On June 26, 2024, the motion came on before Sheard J. She decided to conduct the hearing de novo. That is, rather than deciding whether the order made by Henderson J. was properly granted without notice and should be continued, she put Mr. Huitema to the burden of proving his entitlement to an interlocutory injunction anew on a fully contested basis.
[16] There is no point appealing the orders made by Henderson J. and MacNeil J. in light of the hearing de novo by Sheard J. Even if the orders made by Henderson J. and MacNeil J. were to be set aside by a court on appeal, the order of Sheard J. made afresh and on full material will still remain in place.
[17] In other words, the decision by Sheard J. to hear the motion de novo made a review or appeal of the orders made by Henderson J. and MacNeil J. moot – of no practical import or purpose.
[18] Sheard J. was very critical of Ms. Longarini’s counsel Mr. Lloyd. He adduced evidence of person whom he called a clerk who may actually have been his employer in a business consulting firm retained by Ms. Longarini to help her realize on her investment in the business. Mr. Lloyd purported to adduce evidence through the “clerk’s” affidavit of which he plainly had no personal knowledge. The affiant did not identify his source of information and his belief in the information either as required by Rules 4.06 (2) and 39.01 (4). Mr. Lloyd then refused to produce either the affiant or Ms. Longarini for cross-examination under Rules 39.02 and 39.03. Not surprisingly, Sheard J. refused to receive the inadmissible evidence. She characterized the manner by which Mr. Lloyd put forward Ms. Longarini’s story as being “at best negligent, and at worst, improper”.
[19] With no admissible evidence to the contrary, Sheard J. accepted Mr. Huitema’s evidence and granted the injunction sought until trial.
[20] Sheard J. ordered Ms. Longarini to pay costs of the motion on a substantial indemnity basis fixed at $27,425.10. Her Honour ordered costs on a punitive scale due principally to Mr. Lloyd’s failure to submit admissible evidence on the motion and due to an outrageous threat he made to a witness to try to have the witness change her evidence.
[21] The trial was then scheduled for November, 2023 sittings in Cayuga.
(d) Subsequent Steps
[22] Mr. Lloyd then declined to act for Ms. Longarini any further. But he did not get off the record or help her file a Notice of Intention to Act in Person. Ms. Longarini says he demanded $200,000 and refused to release her file.
[23] Ms. Longarini has now sued Mr. Lloyd and reported him to the Law Society of Ontario. So, issues between them will be dealt with elsewhere.
[24] On November 21, 2023, Nightingale J. adjourned the trial to the February sittings in light of the issues between Ms. Longarini and Mr. Lloyd.
[25] The parties then became embroiled in a raft of motions. Ms. Longarini moved to compel answers to questions she asked in written cross-examinations. She also moved for relief in this application related to a second action commenced by Mr. Huitema against Ms. Longarini for defamation. Mr. Huitema moved for an order to hold Ms. Longarini in contempt or to strike her pleadings under Rule 60.12 for breach of the injunction. Ms. Longarini announced an intention to move to remove Mr. Huitema’s lawyers from the record due to alleged conflict of interest. She also wants to move for security for costs.
[26] In the meantime, Ms. Longarini would not approve the form of the order made by Sheard J. This resulted in a hearing to settle the order at which Ms. Longarini was assessed another $500 in costs.
[27] Ultimately, Bordin J. was appointed case management judge. He determined to hear Ms. Longarini’s refusals motion and Mr. Huitema’s contempt motion together. He deferred the other motions.
[28] For reasons dated August 16, 2024, reported at 2024 ONSC 4561, Bordin J. ordered Mr. Huitema to answer 6 of 70 questions refused. He declined to hold Ms. Longarini in contempt despite finding some minor breaches of the injunction. But Bordin J. held that Ms. Longarini’s breaches, especially her failure to pay the costs ordered by Sheard J. were significant. Under Rule 60.12, he held the appropriate relief was to deny Ms. Longarini the right to bring further motions without leave pending her compliance with the court’s orders.
[29] In his Reasons, Bordin J. referred to complaints raised by Ms. Longarini with various of the earlier orders. He found that since the orders had not been appealed, Ms. Longarini could not be heard to challenge them. In addition, he recited a submission made by Ms. Longarini that she learned from Ramsay J., on yet another prior motion, that he had no jurisdiction to set aside the costs order made by Sheard J.
[30] Learning of the need to appeal to make her arguments against the prior orders, Ms. Longarini now weeks leave to appeal the three interlocutory orders made by Henderson J., MacNeil J., and Sheard J. in May and June of last year.
The Legal Test
[31] In Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 Epstein JA wrote:
[14] The test on a motion to extend time is well-settled. The governing principle is whether the “justice of the case” requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:
a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period;
b) the length of, and explanation for, the delay in filing;
c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and
d) the merits of the proposed appeal.
See Rizzi, at para. 16; Froese, at para. 15.
[32] Of the four factors, Epstein JA also held that the lack of merit itself can be a basis to refuse to extend the time especially when leave to appeal is required. See also: Liu v. Chan, 2024 ONCA 699, at para. 32.
Analysis
[33] Ms. Longarini says she formed an intention to appeal right away. She certainly voiced complaints about the various orders in subsequent hearings. She sent an email instructing her then counsel to challenge the order of Sheard J. within several days of it being made.
[34] This is corroborated to the extent that once she learned of the need to appeal to challenge prior holdings in August of this year, Ms. Longarini then quickly launched this process.
[35] But, with over a year going by, I am not satisfied that Ms. Longarini can rely on her new learning to justify her delay. She did not learn of the existence of appeals suddenly. She did not appeal until she found out that she should have appealed to carry out her desired strategy of challenging the initial injunction decisions. That is, although she was upset and raised concerns with the orders when made, she only decided to try to appeal when she decided that it would aid her litigation strategy.
[36] Ms. Longarini also points out that she incurred delay due to her former lawyer. She is also impecunious (as found by Bordin J.). She also suffers some disabilities that included a brief period of hospitalization last year. She says she should be accommodated for her delays.
[37] Ms. Longarini may be self-represented but she is not an unsophisticated litigant. Since losing her counsel she has brought motions and delivered materials. She delivered three affidavits for the motions before Bordin J. In his factum, Mr. Huitema lists Ms. Longarini’s actions from late last year to date:
a. Undertaking HRTO, LRBO, and WISB proceedings against the Responding Party and his business partners;
b. Brought professional complaints against the Responding Party (through RECO) and his counsel (through the LSO);
c. Brought a civil action against her former counsel, his employer, and his associates;
d. Brought a civil action against Alterna Credit Union and its employee Mr. Rodriguez;
e. Successfully resisted a motion in the proceeding against her former legal counsel for summary judgment;
f. Brought a motion for the disclosure of documents in the proceeding against Alterna;
g. Brought motions in this proceeding for questions unanswered on examination, the disqualification of counsel, security of costs, and
h. Made a request to Regional Senior Justice Sweeney to have the various matters case-managed under Rule 77.
[38] Ms. Longarini could have sought leave to appeal had she been so minded. But I cannot reasonably expect her to know the finer points of the doctrine of res judicata (i.e., that without an appeal, her later attempts to undermine earlier findings could not succeed). I would not dismiss the motions on this basis alone.
[39] Mr. Huitema says that he has been prejudiced by numerous proceedings and costs that have happened in the interim. Had Ms. Longarini appealed the injunction on a timely basis, for example, the very significant contempt and R. 60.12 motion before Bordin J. would not have occurred.
[40] I think the more general point is that as time passes, the litigation proceeds. Older steps become water under the bridge.
[41] What strikes me as most important in this proceeding is to get the parties to trial. Ms. Longarini has important issues to be heard. So much time has passed that appeals now are unlikely to be of much relevancy.
[42] Finally, the merits of the proposed motions for leave to appeal are very weak. The chances of any even getting leave to appeal are remote. This is the decisive factor.
[43] Ms. Longarini criticizes Henderson J. for not realizing himself that under the parties’ shareholders’ agreement unanimity was required so that Mr. Huitema had no right to withhold payments to her while she was away. She submits that his failure to discern her contractual analysis was a palpable and overriding error. This submission misapprehends a judge’s role on an ex parte motion. No doubt the applicant was required to tell the judge about likely responses to his claim. He did so. But the judge makes no error by failing to conduct a contractual analysis on the merits on his own when he is required only to find a serous issue to be tried.
[44] MacNeil J. just adjourned the hearing before her when Ms. Longarini’s material was served on the morning of the hearing. Ms. Longarini is correct that it is not clear how MacNeil J. determined that service of the order on Ms. Longarini was effective within the time ordered by Henderson J. But the issue is much ado about nothing. There is no basis to find that the injunction granted by Henderson J. lapsed if Mr. Huitema was a few minutes late with service. Nothing in the order dictates that outcome. Moreover, the Respondent retained counsel who attended the next hearing. The purpose of service is to give notice and that purpose was fulfilled. This is a technical argument with no substance and is certainly not an issue that calls out for leave to appeal.
[45] As to Sheard J., Ms. Longarini focuses her attack on the costs award. She cannot complain about the substance of the injunction as Sheard J. acted on the only admissible evidence before her. Ms. Longarini’s concern is that due to the costs award she is made to suffer the consequences of the misconduct or incompetence of her counsel.
[46] As noted above, the issues between Ms. Longarini and her counsel are being dealt with in other proceedings. Here, the court cannot know what instructions Ms. Longarini provided her counsel or what advice he provided to her. The client is presumptively liable for the costs of an unsuccessful proceeding. She can waive privilege and seek indemnify in her proceedings against him.
[47] Moreover, there is no likelihood of leave to appeal to be granted on the exercise of discretion by Sheard J. to award costs on an elevated basis. Costs are the most discretionary of orders. A costs order will only be set aside if the judge has made an error in principle or if the award is plainly wrong. See: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9. Here the judge cited the correct law and articulated compelling reasons for her the exercise of her discretion.
[48] Ms. Longarini raises concerns that each of the judges accepted misrepresentations in making their decisions. But as other judges have already explained to Ms. Longarini, while that is her assertion, the decision about which version of facts will be accepted as true (and consequently whose version might have been misrepresented) will only be known after trial. Trial is where the facts will be determined on all the evidence.
[49] Ms. Longarini also raises an issue about opposing counsel acting while she says they are in conflict. But that motion has not yet been heard and decided. Ms. Longarini needs leave of the case management judge before he will schedule the motion. It is not an issue for the three orders under appeal or for the appellate court to resolve.
[50] Finally, I step back and consider the overall justice of the case. I hear and understand Ms. Longarini’s pleas that Mr. Huitema is trying to prevent her from having access to justice concerning serious issues of sexual abuse. She submits that Mr. Huitema is creating a roadmap for others to exclude victims from coming forward and being heard.
[51] I accept that access to justice for all tort victims and especially vulnerable people asserting sexual abuse is a very important element of the civil justice system. That is why I focus always on the most efficient and affordable processes to get cases to trial.
[52] Whether Justice Henderson properly construed the shareholders’ agreement in finding a prima facie case or whether Justice MacNeil considered the deemed delay of service after 4:00 p.m. makes no difference at all to the merits of Ms. Longarini’s complaints. It takes an experienced hand to understand how to separate the important issues from the distractions in legal proceedings. Ms. Longarini is representing herself. She certainly can bring and respond to a large number of proceedings. But her proposed appeals disclose an inability to separate the legal wheat from the chaff. It can take lawyers decades to develop the experience needed to do so.
[53] Bordin J. was no doubt correct that Ms. Longarini needed to appeal to challenge the findings made by the three prior judges. But what she misses is that other than the costs award made by Sheard J., there is no benefit or need for her to challenge those findings. She can and should go to trial and tell her story to obtain the relief to which she believes she is entitled. None of those earlier findings preclude her from presenting her case fully at trial.
[54] The costs award may be a more significant practical issue for Ms. Longarini. But there is virtually no realistic basis to challenge a costs award and especially not a year down the road after it has already been the focus of other relief.
[55] The way to do justice on the merits to these parties is to see them case managed closely to get beyond the process steps that entangle them in a web of motion after motion and distract them from trial. The trial was scheduled for November, 2023 and then February, 2024. Yet another distraction at the Divisional Court for many months to deal with two moot orders and one that is unappealable in practical terms is in no one’s interest.
[56] I urge the parties to find a way to disentangle their affairs, protect the value of the corporation for them both, and end the distress of litigation. If that is just not possible, then they need to get to trial.
[57] Efficient, affordable civil justice is an elusive goal in 2024. But getting caught up in procedure is the wrong way to protect the justness of the outcome. Parties need to keep a blinkered, singular focus on getting to the earliest trial possible to resolve their issues efficiently, affordably, and justly.
[58] The three motions for an extension of time are each dismissed. No costs.
FL Myers J
Date: November 13, 2024