Court File and Parties
COURT FILE NO.: CV-09-61869 DATE: 2020/06/26 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Malgorzata Dankiewicz, Plaintiff AND: Todd Joseph Sullivan, Defendant
BEFORE: Justice I.F. Leach
COUNSEL: John Goudy, for the Plaintiff Matthew Dupre, for the Defendant
HEARD: June 26, 2020
Endorsement
Introduction
1Further to my reasons for judgment released in relation to this matter on November 4, 2020, (addressing the “liability phase” of the directed trial of the contempt proceedings herein), a teleconference hearing was scheduled and held today to deal with:
a. settlement of an appropriate formal order reflecting my reasons for judgment, pursuant to Rule 59.04(12) of the Rules of Civil Procedure; and
b. a case conference, pursuant to Rule 50.13 of the Rules of Civil Procedure, to address some, (but not all), of the matters specified in Rule 50.13(5) of that rule.
2Participating in the teleconference hearing were plaintiff counsel, defence counsel and the defendant Mr Sullivan. While Mr Sullivan did not actively participate in the conference, in terms of saying anything to myself or plaintiff counsel, he was present in Mr Dupre’s office and listening to what was being said.
Settlement of order – Rule 59.04(12)
3Prior to the case conference, plaintiff counsel had provided defence counsel and the court with a draft of the form of order the plaintiff was suggesting, to reflect the substantive outcome indicated in my reasons for judgment released on November 4, 2020.
4Indeed, plaintiff counsel indicated, (and it was not disputed), that the plaintiff’s draft order had been provided to defence counsel for consideration as long ago as December, 2019. Until the case conference this morning, there nevertheless apparently had been no substantive response whatsoever, on behalf of the defendant, indicating whether the order drafted and provided by the plaintiff was acceptable or not acceptable, in terms of form and/or content. Hence the need for a formal Rule 59.04(12) hearing to settle the order.
5After hearing from counsel, (with Mr Dupre finally indicating on behalf of the defendant that the plaintiff’s draft order was acceptable as to form and content, from the defendant’s perspective), I finalized the formal order in the terms proposed by the plaintiff with two minor revisions I independently considered necessary and appropriate:
a. I revised the concluding wording of paragraph 2 of the draft order such that the final wording would read “…and whether the relief sought by the Defendant in his Notice of Motion, dated April 1, 2016, should be granted”; and
b. I revised the indicated court file number from merely saying “61869” to “CV-09-61869”, to ensure that it was accurate and complete, thereby allowing court staff to accurately track, issue and file the order appropriately.
6I now have electronically signed a copy of the finalized order, which I will ask the judicial secretaries to provide to counsel electronically, in PDF format, along with a copy of this endorsement. A copy of the finalized order also will be directed to the court office for eventual filing.
7As for costs of the steps associated with formal settlement of the order, defence counsel noted that there had been challenges in that regard created by the pandemic; e.g., insofar as Mr Dupre’s the law office of defence counsel has been largely closed since the prevailing COVID-19 pandemic reached Ontario in a significant way in March of 2020, and the defendant Mr Sullivan lacks any means of communicating electronically.
8While all of that may be so, it was not disputed that plaintiff counsel had provided defence counsel with a copy of the plaintiff’s proposed order, and embarked on repeated requests for a response, as long ago as December of 2019; i.e., several months before any complications brought about by the pandemic.
9In my view, there really is no legitimate excuse whatsoever for the plaintiff, plaintiff counsel and the court to have been put to the time and expense of having to settle the relevant order formally via Rule 59.04(2), and the plaintiff accordingly should be entitled to a measure of cost reimbursement in relation to those unnecessary steps.
10However, plaintiff counsel noted that precise quantification of the costs associated with those additional steps is difficult at the moment, as some of those costs are inextricably bound up with further work done by plaintiff counsel to prepare for the Rule 50.13 case conference and the anticipated trial continuation.
11In the circumstances, and at the request of plaintiff counsel, costs associated with the Rule 59.04(12) process to formally settle the formal order, (i.e., the order reflecting my decision released on November 4, 2019), will be reserved to my anticipated final decision regarding the costs of this litigation.
Case conference - Rule 50.13
12As indicated in a message relayed to counsel by the trial co-ordinator at my request on June 15, 2020, the scheduled case conference was intended to address the matters in Rule 50.13(5) with the exception of Rule 50.13(5)(b). In that regard:
a. I did not think it appropriate to invite any inherently without prejudice discussion of possible resolution of the remaining issues before me, having regard to the reality that I remain seized of those remaining issues in relation to the anticipated trial continuation; and
b. I accordingly indicated my contemplation of a direction that the matter be the subject of a further judicial pretrial conference by another judge - preferably Justice Rady if she is willing and available, given her prior familiarity with the matter.
13In relation to the remaining matters to be addressed via Rule 50.13(5), in respect of which I received submissions from plaintiff counsel and defence counsel:
a. The issues remaining for trial, (all of which are contested), will include the following:
i. whether the defendant has purged his contempt by the time of the trial continuation and, if so, to what extent;
ii. the nature of the penalty to be imposed and remedial measures to be ordered, if any, to address the defendant’s contempt;
iii. whether the defendant should be entitled to any of the relief sought in his cross-motion, largely focused on whether the court should provide formal confirmation that the defendant has satisfied his obligations to the plaintiff and removing any associated with any encumbrance on title to his property; and
iv. costs of the litigation.
b. The parties acknowledge that there almost certainly will be numerous sub-issues to be addressed in the course of dealing with those main issues, but there was no dispute that the matters outlined in the preceding sub-paragraph are the principal ones to be addressed in the remaining trial proceedings before me if there is no agreed resolution to the parties’ dispute.
c. Barring further order of the court, (obtained after a hearing brought on notice by either party, and arranged in consultation with the trial co-ordinator), the following procedures, schedule and timetable will govern the remaining issues to be tried:
i. Evidence in relation to the penalty phase of the contempt proceeding trial will be presented in writing, through affidavits and transcripts of cross-examination on affidavits;
ii. To the extent such affidavit evidence or evidence via cross-examinations on affidavit material will include expert opinion evidence, the parties have agreed to confine such expert opinion evidence to that provided by the same experts that were called as witnesses and formally qualified as experts during the “liability phase” of the contempt proceedings trial, and the court will receive and consider such further expert opinion evidence on that basis;
iii. The plaintiff shall deliver her evidence by affidavit on or before Friday, July 31, 2020;
iv. The defendant shall deliver his responding evidence by affidavit on or before Friday, August 21, 2020;
v. The plaintiff shall deliver his reply evidence (if any) by affidavit on or before Friday, August 28, 2020;
vi. Cross-examinations on affidavits, if any, shall be completed on or before Friday, September 25, 2020;
vii. A further judicial pretrial focused on possible settlement of the remaining issues shall be scheduled, (in consultation with the London trial co-ordinator, and preferably before Justice Rady if she is willing and able to conduct such a further judicial pretrial), for a date after September 25, 2020, and therefore after contemplated completion of cross-examinations on the affidavit evidence delivered by the parties;
viii. Trial continuation shall be scheduled, by the London Administrative Judge or his designate, for commencement on a date on or after October 26, 2020, with an estimated maximum trial duration of two days; and
ix. The plaintiff and defendant shall deliver their respective facta and books of authorities no less than seven (7) days prior to the commencement of trial.
14I note that, during the course of the case conference, I received indications that defence counsel Mr Dupre might be removed from the record, either through a motion in that regard or by Mr Sullivan filing a Notice of Intention to Act in Person complying with the Rules of Civil Procedure; e.g., because of Mr Sullivan’s professed financial circumstances and possible inability to continue the retention of counsel as this matter proceeds to a conclusion.
15That may or may not turn out to be the case.
16For scheduling purposes, however, I note my preliminary view that such a change in representation should not have a bearing on compliance with the timetable outlined and ordered above. Without limiting the generality of the foregoing:
a. As noted above, Mr Sullivan was “present” during the case conference, in the sense that he was in Mr Dupre’s office and listening to all that was said during the relevant teleconference. He accordingly is now immediately aware of the timetable that has been established, the reasons for that timetable, and the need to ensure compliance with that timetable whether or not he is being formally assisted by counsel.
b. Although Mr Dupre indicated a view during the course of the case conference that a further delay in the progress of this litigation would not be significant, having regard to the already drawn out history of the litigation, I entirely disagree, for the reasons I outlined during the case conference. While there may be no pressing urgency from Mr Sullivan’s perspective, Ms Dankiewicz understandably has a very different view of the situation, and is no doubt anxious to have this matter proceed to a resolution. Moreover, in case it needs to be emphasized again to Mr Sullivan, contempt inherently is an extremely serious matter, punishable by court ordered remedies up to and including imprisonment. Mr Sullivan has been formally found in contempt of court, and cannot reasonably expect that progress of this proceeding will the subject of any further substantial delay. In my view, the prevailing situation, in respect of which Mr Sullivan already has failed to comply with an existing court order for no less than nine years, should not be permitted to continue a minute longer than necessary.
17Costs of the Rule 50.13 case conference are also reserved to my final cost determination, to be made at the conclusion of the trial proceedings.
“Justice I.F. Leach” Justice I.F. Leach
Date: June 26, 2020