SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Elio Monaco and 1195053 Ontario Limited, Applicants

AND:

Langston Hall Real Estate Corp., Langston Hall Development Corporation, Isongreen Development Corporation, Del Terrelonge, John Wee Tom, Ronald Angellotti, 2162240 Ontario Inc., Naheel Suleman, 559175 Ontario Inc., 573028 Ontario Inc., 1431289 Ontario Inc., Olrac Incorporated, Maxvann Inc., Pierluigi Ceddia, Alvaro D’Antonio and Iqbal Nasser, Respondents

BEFORE: D. M. Brown J.

COUNSEL: J. Kramer, for the Applicants J. VanWiechen, for the Langston Hall Respondents A. Grant, for the remaining respondents

HEARD: November 15, 2012

REASONS FOR DECISION – dispute over terms of adjournment

I. When communicating with the Commercial List, accuracy helps

[1] Counsel who appear on the Commercial List must communicate accurately to the court, and to other counsel, how scheduled court time will be used. In this case a communication from counsel’s office which strongly suggested that today’s matter would be adjourned on consent was very inaccurate; in fact, a contested adjournment was argued. That should not have happened. In this endorsement I try to explain why.

[2] Briefly, the applicant, 1195053 Ontario Inc., whose principal is the applicant Elio Monaco, is a minority shareholder of the respondent, Langston Hall Real Estate Corp., which is the parent of the registered owner of land on Adelaide Street, Toronto. Once slated for development as a condominium, the land development project now appears to be on hold. The land presently is used as a parking lot.

[3] Mr. Cosgriffe, counsel for some of the respondents (the “Langston Hall Respondents”), took ill yesterday. I hope he recovers quickly. As a result of counsel’s illness, the Langston Hall Respondents seek an adjournment. The applicants are prepared to accommodate the request, but they seek terms of adjournment relating to the operation of the Langston Hall companies and the state of title.

II. The events surrounding the adjournment request

[4] Yesterday, at 1:58 p.m., the Commercial List office forwarded to me an email received at 1:37 p.m. from a law clerk at the office of counsel for the Langston Hall Respondents advising that an adjournment would be sought. The email read:

There is an application scheduled for tomorrow in the above noted court file. Unfortunately Christopher Cosgriffe, counsel for several of the respondents, has fallen ill and is unable to attend and therefore we are seeking a brief adjournment of the application. Would you please advise of the first available dates (I believe this matter has been scheduled as a long application), and we will provide dates to counsel. It is my understanding that someone will attend tomorrow morning to briefly speak to the matter and advise as to the adjournment of same.

On its face the email was not copied to counsel for the applicants; counsel for the Langston Hall Respondents confirmed that the email was not copied to counsel for the applicants.

[5] I took from the last sentence of the email that this morning at 10:00 a.m. one person would appear before me to seek a new date for a hearing and the matter would take a minute or two to deal with. As a result, I did not read any of the materials.

[6] As events unfolded, the impression I had formed from reading the email to the Commercial List Office was wrong. Why? Because following a 9:52 a.m. email yesterday from counsel for the Langston Hall Respondents to all other parties informing them of Mr. Cosgriffe’s illness and the need to adjourn the hearing, counsel for the applicants replied, by email sent at 12:20 p.m., over one hour before the communication to the Commercial List Office:

I am seeking instructions.

However, you should be aware that adjournments are not necessarily given out on the Commercial List even if all counsel consent. An attendance tomorrow morning by all counsel is required.

If there is to be an adjournment, I will be looking for the following terms, and possibly others:

• Adjournment to the earliest available date.

• That all revenues from the property – i.e. the parking lot operations and the commercial sign – be paid into trust pending the hearing.

• That there be no dealings with the title to the real estate or any other dealings that are outside of the ordinary course of business.

[7] About half an hour later, at 12:49 p.m., counsel for the Langston Hall Respondents replied to applicants’ counsel:

I await your advice on whether the adjournment will be on consent. Although we are prepared to adjourn the motion to the first available date…we are not prepared to agree to the remaining terms. There is no basis for what is, in essence, interim injunctive relief, and there is no urgency to this matter.

I will advise the Commercial List office of the request for an adjournment.

[8] About 40 minutes later, the law clerk’s email to the Commercial List Office was sent.

[9] As I stated in open court, in light of the emails exchanged between counsel before the law clerk sent the email to the Commercial List Office, the content of the clerk’s email was “misleading in the extreme”. By that I do not mean to say that the law clerk intended to mislead the court. I have no idea what information the law clerk was given by counsel for the Langston Hall Respondents, and it appears counsel did not read the clerk’s email before it was sent. However, in its effect the law clerk’s email was misleading – it left the court with the distinct impression that a full day matter would now be adjourned on consent due to counsel’s sudden illness and only a brief attendance would be required this morning.

[10] The immediate consequence of the misleading email to the court? At 10:00 a.m. this morning, when I thought I would be entertaining one counsel in chambers to set a new date on consent, I was informed that there were three gowned counsel in my courtroom and there would be a fight over terms of adjournment. After expressing my displeasure to counsel about their failure to communicate to the court accurate information about what would transpire in court today (perhaps a stronger word than “displeasure” would more accurately capture my reaction), I read the factums and then asked counsel to provide me with copies of all email correspondence that passed between them yesterday. That took some time, but they did. I heard submissions on the terms of adjournment. I adjourned this matter to a one day hearing before any judge on December 4, 2012, and indicated I would release written reasons dealing with the requested terms of adjournment.

III. So, why should I give a hoot about what happened today?

[11] A legitimate question. Perhaps some would say: “You had your chance to vent to counsel. Get over it. Move on to the next case. No big deal.” Might I respectfully respond that notwithstanding what transpired in my courtroom this morning was a mere micro-drama in the larger scheme of life, it was symptomatic of a malaise which permeates our court – sloppy litigation habits by those who use our court system.

[12] Access to justice – a much ballyhooed phrase – only possesses meaning in the concrete realities of the court system. As I have written elsewhere,[^1] our court system is under great stress. The available amount of judicial time is fixed, and if the timely adjudication and mediation of cases are to remain achievable goals of our justice system, judicial time must be used efficiently.

[13] The efficient and effective use of judicial time to secure justice for litigants depends, in part, on good litigation habits by those who use our court system, especially counsel. One of those good litigation habits consists of communicating to the court timely and accurate information about how the parties intend to use scheduled court time. As paragraph 5 of the Commercial List Practice Direction states:

Co-operation, communication and common sense shall continue to be the principles of operation of the Commercial List.

Communication includes not only communication amongst counsel but, just as importantly, communication with the court.

[14] In this case, accurate communication with the court did not occur. As I noted, the law clerk’s communication to the court not only was not accurate but was, for whatever reason, misleading.

[15] Another bad litigation habit raised its head in this case and contributed to the inaccurate communication with the court. The law clerk did not copy counsel for the other parties on the email to the court. Again, I do not know why that happened. Suffice it to say, no party should communicate with the court without copying other counsel on the communication. Had applicants’ counsel received a copy of the email to the court, I strongly suspect that a follow-up communication to the court would have resulted clarifying that the adjournment request would involve an argument over terms of adjournment.

[16] Those two pieces of sloppiness had tangible effects on the working of the system justice. First, they caused delay (and therefore increased costs) in the present case. Our court is an evidence-based court. In order to consider the imposition of injunction-style terms of adjournment, such as those sought by the applicants in this case, a judge must have some understanding of the merits of the case. That requires some familiarity with the evidence, either through reading the motion records or the summaries of the evidence in the factums. A judge who understands that an adjournment will go on consent will not spend time unnecessarily reading materials. By contrast, if a judge understands that there will be an argument over terms of adjournment, the judge will take some steps to gain a sufficient understanding of the merits of the case to consider the requested terms.

[17] In the present case, I had to adjourn court for about 30 minutes or so in order to read the factums to gain some basic understanding of what this case was about before hearing submissions on terms of adjournment. Not a huge amount of time, but last time I looked, lawyers were still billing on an hourly rate basis, so any delay costs clients money.

[18] Second, the failure of counsel to communicate accurately what was going to happen at today’s hearing affected another case. Having learned yesterday that this matter would be adjourned on consent, I planned to spend this morning continuing to write a far-too-old reserved judgment. Those plans went out the window when it transpired that there would be a contested adjournment and the reading of materials which I would have undertaken yesterday required consuming time from today. So, whereas I had anticipated spending three hours today writing a reserve judgment, I was only able to spend one hour. Again, justice delayed.

[19] What lessons then can be learned from this “teachable moment”? First, any communication of information by counsel to the court must be accurate and fairly describe what will happen on the scheduled date. If the communication will be made by counsel’s staff, counsel remains responsible for ensuring the accuracy of the communication. Second, any communication by a party with the court must be copied to all other parties.

IV. Requested terms of adjournment

[20] At the start of court this morning the applicants requested five terms of adjournment: (i) payment of all revenues from the property into trust pending the December 4 hearing; (ii) no dealings with title to the property; (iii) the respondents inform the applicants of all communications with the mortgagees; (iv) the respondents forthwith produce the bank statements for all bank accounts of the Langston Hall corporate defendants; and, (v) costs thrown away of $10,000. The Langston Hall Respondents opposed those terms, but were prepared to undertake to inform the applicants about the receipt of any notices of proceedings or powers of sale from mortgagees prior to the hearing.

[21] Let me start with Item (iv), the request for more documents. At a 9:30 appointment on September 18, 2012 I ordered the “parties to produce all requested documents by September 28/12”. That order was driven, in part, by an August 8 letter from applicants’ counsel seeking certain documents. The bank account records were not amongst the documents requested. There was ample opportunity for the parties to have re-attended on a further 9:30 if the scope of productions remained in issue. I do not regard the request for further productions as reasonably related to the three week adjournment that will now occur.

[22] As to Items (i) and (ii), although the August 2, 2012 Notice of Application requested interim relief in paragraph 1(c), I understand that in the result the applicants brought no motion for interim relief. Consequently, I do not see the basis for turning an adjournment necessitated by the illness of counsel into a request for interim relief not previously sought.

[23] Regarding Item (iii), the Langston Hall Respondents are prepared to inform the applicants about the receipt of any notices of proceedings or powers of sale from mortgagees prior to the hearing, so I direct them to do so as a term of this adjournment.

[24] Finally, as to the request for costs thrown away of this motion, such costs usually are not awarded where the adjournment was caused by the illness of counsel. The preparation time spent by applicants’ counsel can be applied productively on the re-scheduled hearing which is only a short time away. That said, today’s attendance went on longer than necessary. Yesterday applicants’ counsel had stated clearly the terms his clients would be seeking before the court was notified of the adjournment. Yet that information was not conveyed to the court by the office of counsel for the Langston Hall Respondents, causing unnecessary hearing time today as I attempted to sort out the equities of the situation. In those circumstances, I think it appropriate to award the applicants costs of $500 payable by the Langston Hall Respondents no later than November 21, 2012.

(original signed by)_____

D. M. Brown J.

Date: November 15, 2012

[^1]: George Weston Limited v. Domtar Inc., 2012 ONSC 5001.```