Court File and Parties

COURT FILE NO.: CV-14-502628 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Curtis, plaintiff AND: The Bank of Nova Scotia, defendant

BEFORE: Master Abrams

COUNSEL: I.R. Dick, for the defendant T. Gleason, for the defendants in the action bearing court file no.: CV-15-524203 G. Curtis, plaintiff

HEARD: October 11, 2018

Reasons for Decision

[1] This action was commenced by the plaintiff in 2014 and, yet, examinations for discovery are still to be conducted. While I understand and empathize with the plaintiff’s desire to schedule examinations for discovery without further delay, I do not have the jurisdiction to order the defendant to attend to be examined at this time.

[2] Why do I say this?

[3] By Order dated October 23/15, Mr. Justice Dow directed that (a) “…each party in the action in Court File No. CV-15-524203 and the action in Court File No. CV-14-502628 is entitled to attend and participate in the examinations for discovery of the other parties” and (b) “…should this action (being Court File No. CV-15-524203) and related action CV-14-502628 be placed on the trial list, they shall be placed, one following the other, for trial together or as the trial judge may direct”.

[4] On April 6/16, Mr. Justice Dow held (in respect of the plaintiff’s motion brought to vary his Order mandating common discoveries and trial together or consecutively) that there were “multiple examples of common facts, transactions and/or occurrences referenced in Rule 6 of the Rules of Civil Procedure” in the actions bearing court file nos. CV-14-502628 and CV-15-524203. That being so, His Honour was not prepared to vary his October 23/15 Order.

The plaintiff then asked Dow, J. to clarify his Order of October 23rd. His Honour declined to do so and noted that the defendants to the 2015 action were now bringing a motion under R. 21 to strike the claims made against them.

[5] The Rule 21 motion was scheduled to be heard by Dow, J. on January 23, 2018 (after having been adjourned once before, at the request of Mr. Curtis, on October 6/17). The motion was not heard then as the plaintiff objected to what he characterized as a reasonable apprehension of bias on the part of Mr. Justice Dow. He asked that His Honour recuse himself. Dow, J. declined to do so. On February 16/18, he directed the parties to contact the Civil Motions Co-Ordinator “to schedule the…motion…[to dismiss the claims in CV-15-524203] before [him] at the earliest convenient and available date”. The plaintiff appealed Dow, J.’s decision and the appeal was ultimately dismissed by the Divisional Court. [1]

[6] In considering the merits of the plaintiff’s motion, I must have regard to the limits of my jurisdiction. Dow, J. specifically permitted attendance and participation of counsel for the defendants on the examinations for discovery in both actions. Attendance is passive. Participation is not.

[7] Further, there is a pending R. 21 motion that Dow, J. directed the parties to schedule before him. Relying on Raghavan v. Bell Canada, 2011 ONSC 7000, the defendants to the action bearing court file no. CV-15-524203 submit that with their motion to strike having been served before Mr. Curtis’ motion to schedule discoveries, their motion ought to be heard before discoveries take place. They are not, now, prepared to agree to schedule those discoveries lest they be required to incur the cost of participating in a process that may be for naught if their R. 21 motion is successful.

[8] They posit that if the pending Rule 21 motion is successful, the claims made in the action bearing court file no. CV-15-524203 will be circumscribed or dismissed. If it is not successful, there will be certainty for all parties as to what are/what remain issues in the litigation (i.e. in both proceedings). In the words of Chapnik, J. in Stantec Consulting Ltd. v. Altus Group Limited et al., 2014 ONSC 6111 (at para. 19): “If the litigation proceeds [after the R. 21 motion], the determinations made on the motion would likely result in a more focused and streamlined discovery and trial process. …If the [R. 21 motion is] granted, or [is] partially successful, most or all of the outstanding issues between the parties would resolve [at least in respect of the issues that are common to the 2014 and 2015 actions], resulting in efficiency, affordability and judicial economy”.

[9] Mr. Curtis suggests that the Pinto defendants are not parties to the action bearing CV-14-502628 such that their examination rights are prescribed by the rules governing the discovery of non-parties. He posits that leave must be and wasn’t sought to permit the defendants to the 2015 action rights of discovery in the 2014 action, and he relies on cases that suggest that the role of a non-party is very limited. While it is true that Mr. Gleason’s clients are not defendants named in the action bearing court file no. CV-14-502628, neither are they “non-parties”. Dow, J. gave them full participation rights in the examinations for discovery in the 2014 action. The 2015 action is inextricably tied to the 2014 action by virtue of the terms of Dow, J.’s October 23/15 Order.

[10] In all, therefore, I am unable to bifurcate the discovery process and grant Mr. Curtis the relief that he seeks. To do so would be to vary the Order of a judge, something which I, as a master, do not have the jurisdiction to do.

[11] Failing agreement as to the issue of costs, an attendance before me to argue costs may be scheduled. If costs are to be addressed, I am to be so advised—by November 30/18.

October 23/18

Note: In the context of his submissions, Mr. Curtis raised concerns about the Bank of Nova Scotia’s preservation of documents. There is nothing before me to suggest that the Bank has not and will not take seriously its documentary disclosure and production obligations.

Footnotes

[1] A motion for leave to appeal, brought by Mr. Curtis, was dismissed by the Registrar (with A.C.J. Marrocco having declined to set aside the Registrar’s dismissal Order and the Divisional Court having declined to set aside the decision of A.C.J. Marrocco). I note that a motion to extend the time to seek leave to appeal the Divisional Court decision was brought by Mr. Curtis; but, at the time of hearing of this motion, it had not yet been argued.