Court File and Parties

CITATION: Rosen v. CannTrust, 2020 ONSC 4190

DIV COURT FILE NO.: 72/20

DATE: 2020-07-07

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Rosen v. CannTrust

BEFORE: D.L. Corbett J.

COUNSEL: Doug Worndl, Ron Podolny, Joel Rochon and Peter Jervis, for the Moving Parties Scott Hutchison and David R. Wingfield, for the Responding Consortium

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management conference conducted by teleconference on July 3, 2020. The moving party wishes to seek leave to appeal a decision of Hainey J. dated January 28, 2020 (2020 ONSC 579), appointing the responding consortium as carriage counsel in a proposed securities class proceeding. One of the defendants in the class proceeding, CannTrust Holdings Inc., was the subject of an initial order made under the Companies’ Creditors Arrangement Act by Hainey J. on March 31, 2020, and a mediation before the Honourable Dennis O’Connor in the CCAA proceedings is pending shortly.

[2] The moving party wishes to proceed with the motion for leave to appeal with all reasonable dispatch. The responding party objects to the motion proceeding on the basis that the order of Hainey J. stays all proceedings involving CannTrust, including the class proceeding. Leave to proceed must be obtained from Hainey J., they argue, before the motion for leave to appeal can proceed.

[3] If the motion for leave to appeal is not stayed by the order of Hainey J., then it should proceed with reasonable dispatch. The materials for the motion materials were completed by March 27, 2020 and all that remains is to put the motion before a panel of this court for decision, which could be forthwith. If the motion has stayed by the order of Hainey J., then of course the motion cannot proceed unless leave to proceed with the motion is obtained.

[4] In my view, the motion for leave to appeal is properly commenced in this court, and it is for the responding party to move for a decision that the motion has been stayed. The responding party shall serve its motion materials to this effect by July 7, 2020. The moving party’s responding materials on this issue shall be served by July 10, 2020. The motion on the stay issue shall proceed before a single judge of the Divisional Court on July 14, 2020, by ZOOM teleconference.

[5] Counsel shall establish a password-protected download-only electronic drop box from which all materials for the stay motion may be downloaded and shall provide the court with the URL and password by July 10, 2020.

(a) All documents shall be uploaded to the drop box in pdf format.

(b) Documents should be labelled in a manner that identifies them clearly for the court so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the drop box in pdf form, so that each document is clearly labelled, enabling the court to find documents quickly during the course of the hearing.

(c) Where possible, factums should contain hyperlinks for authorities.

(d) Books of authorities containing the full text of authorities should not be uploaded to the drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the online version of cases. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a small brief of unreported authorities and filed electronically.

(e) The parties shall file their agreement on the disposition of costs, or, if the parties have not agreed as to costs, then each party shall file its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs.

(f) The parties shall file counsel sheets setting out the names of all counsel appearing on the record in the appeal, and indicating the time estimate for each counsel making oral submissions to the court.

(g) All parties are permitted to (but are not required to) file a compendium for oral argument in addition to documents permitted under the Rules.

[6] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.

[7] Finally, the respondent consortium asked this court to decide the stay issue on the basis of correspondence provided to the court in advance of the case management teleconference. It must be recalled that there is no opportunity to file evidence before this court on a case management teleconference.

[8] The court will not decide seriously contested issues without (a) a proper evidentiary record; and (b) factums. Case management is not a surrogate for the basic requirements of notice, evidence and argument before decision. And, to be clear, parties are not permitted to file these sorts of materials for return of a motion at a case management conference without prior permission from the court.

[9] The court proposed that the stay issue be addressed at the same time as the motion for leave to appeal, but consensus could not be reached on this approach. While I am not convinced that two appearances should be required, I accept that on a stay motion the parties are entitled to be heard orally, and that would not happen if the issue was decided by the leave panel – therefore I scheduled the stay motion before a single judge prior to scheduling the motion for leave to appeal.

[10] This endorsement is effective as of July 3, 2020 (its operative terms having been provided to counsel orally that day). A signed copy of the endorsement will be transmitted to counsel in due course.

D.L. Corbett J.

Date: July 7, 2020