SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Marisa Antoinette Lamont, Plaintiff

AND:

Gloria Bazos, Bertha (Penny) Voudoukis, Maria Christakos, The Estate of Harry Christakos, Catherine Christakos, Gregory Christakos, James Christakos, Athena Christakos, John Christakos, Christina Carmichael, Michael Christakos, J. Christakos Investment Company Ltd., Defendants

BEFORE: D. M. Brown J.

COUNSEL:
K. Sherkin, for the Defendants, Gloria Bazos and J. Christakos Investment Company Ltd.

F. Shuh, for the Plaintiff

9:30 appointment endorsement

Counsel’s calendars cannot be used as shields to avoid setting 9:30 appointments on the Toronto Region Commercial List

A. The problem

[1] Mr. Frederick Shuh, of the Kitchener firm of Shuh Cline & Grossman, commenced the plaintiff’s action on the Toronto Region Commercial List on December 21, 2012. On January 21, 2013, his office filed a requisition to note in default the defendants, Gloria Bazos and J. Christakos Investment Company Ltd., based on service effected on December 21, 2012.

[2] Counsel for the defendants noted in default attempted to set up a 9:30 appointment on the Commercial List. He said he could not obtain Mr. Shuh’s consent to a date. In the result, defendants’ counsel appeared at a 9:30 before me on February 12, 2013. Mr. Shuh did not appear, nor did he send any other lawyer to appear on his behalf. Instead, Mr. Shuh sent the Court an email earlier that morning making various complaints about defendants’ counsel and taking the position that until defendants’ counsel had obtained an appointment to fix a date for a motion to set aside the noting in default, “there is nothing to be scheduled”. How one could schedule such a motion date without Mr. Shuh’s attendance at a 9:30 scheduling appointment was a mystery which Mr. Shuh did not explain. Nor in his email did Mr. Shuh offer alternative dates for a 9:30 appointment at which to schedule the motion.

[3] At the February 12, 2013, 9:30 appointment I made the following endorsement which was sent to Mr. Shuh:

I have read Mr. Shuh’s email of Feb 12/13 @ 7:44 a.m. I make the following orders:

(1) The plaintiff may not take any further step in this proceeding without my approval;

(2) A case conference will be held on Feb 20/13, before me, at 11:30 a.m. Since Mr. Shuh failed to attend today, I have set that date in his absence. That date is peremptory to the Plaintiff. If Mr. Shuh fails to attend I may stay this action.

[4] Yesterday Mr. Shuh wrote to me stating that the 11:30 a.m. case conference on the 20th would conflict with his planned departure from the Island Airport on a 1:30 p.m. flight to Manhattan. Mr. Shuh advised that “although I could make arrangements to have other counsel speak to this matter, I would prefer to attend in person rather than instruct counsel”. I would observe that no similar offer to send other counsel was made by Mr. Shuh in his email to the Court sent February 12, 2013 at 7:44 a.m. That day Mr. Shuh simply failed to attend the 9:30 appointment, thereby showing great disrespect for the Court.

B. The governing framework

[5] Since Mr. Shuh’s client started this action on the Toronto Region Commercial List, she and her counsel must abide by the practices and the culture of the Commercial List. Over the past few years the demographics of the Commercial List Bar have changed. For quite a while most counsel who appeared on Commercial List matters were “frequent fliers”, so to speak. That has changed in recent years, especially with the increase in the number of oppression applications being brought on the List. One consequence has been that a significant number of lawyers now appear on the Commercial List who lack an understanding of the “culture” of the List.

[6] I was appointed a judge of this Court upon the retirement of Mr. Justice Farley. The culture of the Commercial List evolved in large part through the firm, but common sense, efforts of Justice Farley. At the heart of the Commercial List culture lay, and still lie, the “3 C’s”. As put in section 5 of the Commercial List Practice Direction:

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

[7] One aspect of the first “C”, co-operation, concerns what happened in this proceeding. Proceedings on the Commercial List must move forward with reasonable dispatch. Delays should not be tolerated, at least in this judge’s view. For a proceeding to move ahead with dispatch, counsel must make themselves available, often on short notice, to address process-related disputes at 9:30 attendances. Commercial List-style “co-operation” requires counsel to make themselves available, in a reasonably timely fashion, for 9:30 appointments. It is not open to counsel to profess that he or she is booked solid for weeks ahead, thereby preventing an attendance at a 9:30 appointment. If counsel’s calendar truly is so inflexible – either because of other court commitments or the location of the lawyer’s office outside of Toronto - then it would be appropriate for counsel to find the client another lawyer who can act in a fashion consistent with the Commercial List’s culture.

[8] Nor is it open to counsel to refuse to schedule a 9:30 appointment until the other side meets pre-conditions he or she sets down. Mr. Shuh engaged in such conduct in this case. He insisted that Mr. Sherkin first go on the record for his clients who had been noted in default. I suspect, given the consequences of a noting in default, Mr. Sherkin would encounter some resistance at the filing counter if he had attempted to file a notice of appearance for clients who had been noted in default. Mr. Shuh’s pre-condition unilaterally erected an unreasonable obstruction to the booking of a 9:30 appointment. Where a party has been noted in default on the Commercial List, its counsel must arrange, through a 9:30 appointment, a date for a motion to set aside. That is what Mr. Sherkin tried to do; Mr. Shuh resisted that effort.

[9] Although lawyers are busy folks, those who practice frequently on the Commercial List always seem to be able to find the time to attend 9:30 appointments scheduled on not all that much notice because they are aware of the expectations of the Commercial List culture and understand the long-term benefits which flow to clients from ensuring quick access to judges to deal with process-related issues. Such flexibility in accommodating personal calendars to the culture of the Commercial List also must be shown by lawyers who appear less often on the Commercial List. Counsel cannot use their calendars as an excuse not to move a matter along in a timely fashion on the Commercial List.

C. The solution

[10] In the present case, I will accommodate Mr. Shuh’s February 20 calendar to the extent of re-scheduling the start of the case conference to 9:00 a.m. Mr. Shuh has to be in Toronto on that day in any event in order to catch his flight. A 9:00 a.m. start will permit Mr. Shuh to catch his flight later that afternoon. I repeat what I wrote in my February 12 endorsement that the February 20 case conference is peremptory to the plaintiff and if plaintiff’s counsel fails to attend, I may well stay this action. I expect both counsel to consult before the case conference on next steps. If the plaintiff intends to insist on a motion by the defendants to set aside the noting in default, counsel should canvass available dates with one of the two Commercial List Masters/Registrars.

(original signed by)_________

D. M. Brown J.

Date: February 14, 2012