COURT FILE NO.: 12-53886 & 53886A1 DATE: 2020/05/25 COURT OF ONTARIO SUPERIOR COURT OF JUSTICE

RE: Carmen Scaffidi-Argentina, et. al., Plaintiffs AND: Tega Homes Developments Inc., et.al, Defendants

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: David Bertschi and Stephanie Drisdelle, for the defendant Tega and third party Dufresne Mark Frederick and Elizabeth Ackman, for the Goodeve Manhire defendants J. Stephen Cavanagh, for the defendant Paterson Group Matthew Gervan for State Farm Andrew Graham for Savasta

HEARD: May 12, 2020

PROCEDURAL DECISION AND DIRECTION

[1] A case conference was convened to review the progress of the action in light of the suspension of in-court appearances due to COVID-19. The adjournment and delay of scheduled events which began in March shows no sign of ending soon. There is very little likelihood of traditional trials resuming before July or September and even then, it may be possible to use court rooms only with precautions and safeguards in place. This may significantly impact the number of cases that may be heard at one time, the number of matters that can proceed at all and the pace at which trials proceed. Virtual hearings are likely to retain a permanent place in the judicial tool box.

[2] The problem of course is that the pandemic continues to spread worldwide and while Ontario has been successful in avoiding some of the apocalyptic scenarios that have unfolded elsewhere, it is far too early to predict what “normal” may look like in September. With each passing week, the court has obtained the experience, resources and technology to conduct more of its regular business in a digital setting. We are a long way from being able to conduct significant numbers of digital trials. Motions and applications that are primarily based on written evidence, written advocacy and oral submissions can much more readily take place in writing, by teleconference or by videoconference.

[3] This has a significant impact on the ability to schedule civil trials. A backlog of trials and other proceedings originally scheduled in March, April and May has already accumulated in all areas of the court’s responsibility. It is impossible to predict if the trials now scheduled for September will be able to proceed or whether some or all of those will also be affected and there cannot be effective backlog reduction measures until much more is known. It would therefore be foolhardy to add additional trials to the schedule. In short, the ability to schedule a trial in this matter, which seemed a simple matter before March has now been effectively stalled.

[4] In my decision reported at 2019 ONSC 4170, I described the wish of the Goodeve Manhire defendants to bring a summary judgment motion and at paragraph 48 of that decision I discussed reasons why the court in the exercise of its inherent jurisdiction over process might decline to schedule such a motion. In particular, I discussed jurisprudence refusing to schedule a summary judgment motion when it might delay a trial or fail to simplify or streamline the issues for trial.

[5] Subsequently, I advised counsel that I was in fact declining to schedule the motion as I considered it more efficient to schedule the trial. The trial was not expected to be a lengthy trial because it will be judge alone and is primarily a battle of experts and arguments of law. The insurance defences which are the basis for the summary judgment motion would not have occupied more than two days and would not have greatly extended the time needed for trial. There was some possibility that findings of fact necessary for summary judgment might also be findings necessary for the trial in any event.

[6] I would have been scheduling the trial at this case conference but for the suspension of court operations that took place in March.

[7] As a consequence of the above, I have now been asked to reconsider this issue. The chaos which has now overtaken the court schedule means a change in the calculus and there is far less justification for the court to stand in the way of a party which wishes to exercise its right to bring a Rule 20 motion.

[8] Under the circumstances, I cannot realistically schedule this trial in the latter part of 2020 or the first six months of 2021. In those circumstances, it is more efficient to test the legitimacy of the insurance defences through the mechanism of a summary judgment motion. If the motion is successful, it will shorten the trial and eliminate certain issues. If it is unsuccessful it may remove the issues from contention. I am not overlooking the possibility of an appeal, but it would be an appeal on a question of law. I am also not overlooking the possibility that the motions judge could refuse judgment because he or she is of the view that this a genuine issue requiring a trial, a result which would leave the question open for trial. Nevertheless, as the action is now at least a year away from trial, I am prepared to schedule the summary judgment motion.

[9] For reasons discussed in an earlier case conference endorsement, counsel have agreed that neither I, Justice McNamara or Justice Roger may hear the summary judgment motion. I concur.

[10] The motion will be scheduled before another judge in the week of September 21st, 2020. This is one of the weeks in which counsel indicated they could be available. The motion will proceed on the basis of the written materials and in the discretion of the motions judge oral argument may be made in person, by teleconference or by videoconference.

[11] In summary, leave is granted to the defendants or any of them to bring a summary judgment motion in the week of September 21st, 2020 for up to two days on dates to be set by the trial co-ordinator. The mode of presentation and argument shall be in the discretion of the motions judge.

[12] The parties are immediately to agree on a timetable for the exchange of materials and cross-examinations if any as well as the method of swearing affidavits and conducting cross-examination assuming either affidavits or cross examination are necessary. The timetable is to be finalized by June 2nd, 2020 failing which a further case conference shall be scheduled.

[13] Counsel are directed to use best efforts to ensure the material is focused, relevant and succinct. In the event that extracts from reports, transcripts or other documents are to be referred to, the relevant extracts from those documents may form part of the materials. The full documents shall not be filed but may be made available by hyperlink to a cloud-based drop box or brought to the hearing in electronic form.

[14] Briefs of authorities as such shall not be filed. In lieu of a brief of authorities, parties may prepare a table of cases in electronic form and hyperlink each case to the version. Relevant extracts from the case may be reproduced in the factum if appropriate.

[15] Unless otherwise directed by the motion judge or by the trial coordinator, all material for use on the motion is to be filed electronically by email directed to the civil motions counter at Ottawa.SCJ.courts@ontario.ca. Arrangements must also be made to pay the appropriate filing fees. The motion is to be confirmed in the usual manner.

[16] Counsel may be directed in lieu of e-mail to upload the material directly to a shared virtual folder on a service such as Sync.com.

[17] If the hearing proceeds in whole or in part by teleconference or videoconference, it will be the responsibility of counsel to have appropriate equipment and telecommunications equipment or internet connections and otherwise to follow the best practices and etiquette for virtual hearings found on the court web site at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/remote-hearings/.

[18] This order is effective without further formality and has been digitally signed. Further direction may be given as appropriate.

Mr. Justice Calum MacLeod Date: May 25, 2020