Biggerstaff v. 934169 Ontario Limited
Parties
JOHN BIGGERSTAFF, LYNDA BIGGERSTAFF, MICHAEL BOURRIE, CHRISTINE BOURRIE, GINA BRUNETTA, LUIGI BRUNO, MARIA BRUNO, LORIS DOTTO, MARIA DOTTO, JOHN FLAMMIA, MARY FLAMMIA, PETER HOFFMEISTER, GWENDOLYN HOFFMEISTER, EDI KACIN, ANGELA KACIN, ROBERT LEWIS, ANNA LEWIS, ANTHONY MARZIANO, SILVANA PILIECI-MARZIANO, ALBERTO MASSONE, GABRIELLA MASSONE, ANGELO MOLIGNANO, JANINE MOLIGNANO, JAROSLAW PIEKOS, LUCYNA PIEKOS, MICHAEL POLLARD, KIRSTY POLLARD, ERIC RANDELL, NATHALIE RANDELL, ROBERT TYM, BRENDA TYM, PATRICK WALKER, PATRICIA WALKER and ROBERT BRUNETTA (Plaintiffs/Respondents)
–and–
934169 ONTARIO LIMITED, 673880 ONTARIO LIMITED, GAETANO LUCCHESE, MICHAEL FELDMAN, THE CORPORATION OF THE TOWN OF CALEDON and FOX REALTY CORP. (Defendants/Appellants)
–and–
CHARLES M. LOOPSTRA (Third party/Respondent)
File No.: M26984 (C34107)
Counsel
Thomas S. Kent, counsel for the appellants
Jeffrey W. Tighe, counsel for the respondents
Date: February 23, 2001
Endorsement
The appellants move to stay the discoveries in this litigation pending the decision on their motion for leave to appeal to the Supreme Court of Canada. They put forward two arguments in support of their motion: first, it would be unfair to permit Mr. Loopstra to discover the appellants while the issue of his conflict of interest is still before the courts; and second, they rely on paragraph 12 of the mediation agreement. I am not persuaded by either argument.
On the first argument, the balance of convenience favours permitting the respondents to proceed to discovery. In the light of the criteria applied by the Supreme Court of Canada, the appellants’ chance of obtaining leave to appeal appears slim. Even if leave is granted, the discoveries will not be wasted. I have no evidence to suggest that permitting Mr. Loopstra to conduct the discoveries will prejudice the appellants. And the plaintiffs are entitled to get on with their lawsuit, without having to wait for the Supreme Court of Canada’s decision on the leave motion, a decision that may not come until the fall.
On the second argument, the mediation agreement, especially paragraph 12, is not a model of clarity. However, the mediation – which was obviously unsuccessful – ended a year-and-a-half ago. I do not think that paragraph 12 should be interpreted to permit an open-ended stay of discoveries long after the mediation is over. To do so would not only be contrary to the respondent’s interests but to the public interest as well.
The motion is dismissed with costs fixed at $1,000.
Signed: “John Laskin J.A.”