SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-51001
DATE: 20120315
RE: Beezer Holdings Inc. and Vasilios (Bill) Syrros, Applicant
AND:
Richard Oh and Lizar SRS Inc., Respondents
BEFORE: Honourable Justice Timothy Ray
COUNSEL:
Christopher R.N. McLeod, Counsel for the Applicants
Aaron Crangle, Counsel, for the Respondent, Richard Oh
David Shiller, counsel for the non-party, Yvonne Mazur
HEARD: March 15, 2012
ENDORSEMENT
[ 1 ] This urgent conference was arranged by Mr. Crangle essentially for the purpose of adjourning an all day motion scheduled for March 28, 2012. He telephoned from Toronto into the court room. Mr. McLeod was present. No motion materials, motion records, or application record was made available to me, however the parties provided with their respective copies of correspondence, a copy of the Application and the Notice of Motion to be heard March 28, 2012.
[ 2 ] While there was no motion record, Mr. Crangle told me that I could make an order without the need for further documentation.
[ 3 ] Mr. Crangle’s position was that the motion returnable March 28, 2012 was an expansion of the relief sought in the application and therefore the application should be converted into an action with proper pleadings and discoveries. Mr Crangle wanted the motion adjourned also because he said there was so much additional material and he needed time. He is leaving on holidays and will not return until a few days before the motion.
[ 4 ] Mr. Shiller was also on the telephone from Mr. Crangle’s office in Toronto. He acknowledged having agreed to produce his client for examination but suggested that his client should be made a party before the examination proceeded. He is not involved in the March 28, 2012 motion.
[ 5 ] Mr. Crangle’s client is taken to have agreed to the March 28, 2012 date for the motion – and to have agreed to the timetable set out in Justice Scott’s order which were a condition of the adjournment. In fact Mr. Oh has not complied with any of the terms. The application was launched almost a year ago. Mr. Crangle is Mr. Oh’s third lawyer. I presume that Mr. Oh was advised from time to time about his obligations and has responded or instructed his solicitor from time to time accordingly. Mr. Oh has not delivered an affidavit or indeed any sworn response to the application or the motion. In addition he has not complied with the terms of Justice Scott’s January order.
[ 6 ] I am not prepared to adjourn the motion returnable March 28, 2012.
[ 7 ] As for Mr. Crangle’s submission that the application needs to be converted into an action, he can bring a motion for directions returnable on March 28 2012 for that relief. However that should in no way affect the motion on March 28, 2012 being heard. It should not be permitted to be a delaying tactic. If such an order were to be made, I could imagine that pleadings could be exchanged and completed within 30 days. That might be something for the applicant to consider.
[ 8 ] As for Mr Shiller’s submissions, his client is not a party. The applicant has a right to examine a non-party under oath on a pending motion. The applicant says that after his examination of Ms. Mazur he will determine if she should be made a party. That seems to be a reasonable way to proceed.
[ 9 ] Costs of this conference are reserved to the motions judge.
Honourable Mr. Justice Timothy Ray
Date: March 15, 2012
COURT FILE NO.: 11-51001
DATE: 20120315
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Beezer Holdings Inc. and Vasilios (Bill) Syrros, Applicant AND: Richard Oh and Lizar SRS Inc., Respondents BEFORE: Honourable Justice Timothy Ray COUNSEL: Christopher R.N. McLeod, Counsel for the Applicants Aaron Crangle, Counsel, for the Respondent, Richard Oh David Shiller, counsel for the non-party, Yvonne Mazur ENDORSEMENT Honourable Justice Timothy Ray
DATE: March 15, 2012