SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Bank of Montreal, Plaintiff

AND:

Mair Faibish et al., Defendants

BEFORE: D. M. Brown J.

COUNSEL:
M. Mohamed and J. Woycheshyn, for the Plaintiff

R. Quance, for the defendants, Taragh Bracken and Tarbrac Holdings Inc.

S. Erskine, for the defendants, Mair Faibish, and as agent for Renee Faibish and Libra Marketing Inc.

M. Cooper, for the defendant, Bektrom Foods Inc.

J. Polyzogopoulos and V. Ariman, for Brome Financial

H. Wright, for the defendant, Terry Mak

G. Chouest and A. MacDonald, for the defendant, BDO Canada Limited

Not attending:

J. Zibarras, for Giuseppe Gatti

J. Federico, for the defendants, Michael Falcone, Michael Falcone Professional Corporation and FalconeTurnerMoore LLP

HEARD: April 10, 2013

case conference memorandum no. 2

I. Bump in the road No. 1

[1] Counsel for BMO advised, and counsel for Brome Financial confirmed, that in September, 2012 Brome Financial commenced an action against the BMO relating to the same matters at issue in this action and Brome Financial did not serve the Statement of Claim until March, 2013, slightly before the expiry of the six month service period.

[2] Case Conference No. 2 in this matter was held on November 6, 2012, after the commencement of the Brome Action. The existence of that action was not disclosed at that case conference. Counsel for Brome Financial stated that they were prepared to “catch up” to the stage of preparation reached in this case. The BMO wants to bring a motion to stay the Brome Action; Brome wants to bring some sort of cross-motion.

[3] I am very displeased with this development.

[4] Let me re-iterate a few basic principles concerning case management.

[5] First, when parties participate in case management, whether voluntarily or at the direction of the Court, they must put all their procedural cards “on the table, face up”, in the words of a former senior litigator in this town. At first blush, Brome Financial did not do that when it failed to disclose the existence of the Brome Action at the November 6, 2012 case conference. I expect a full explanation from Brome Financial of its conduct.

[6] Second, in my lexicon “motion” is a four-letter word when it concerns process-related motions. I am no fan of the interlocutory motions fetish which infects the litigation culture of this town; it is a barrier to access to justice. One of the goals of the case management of complex cases, such as this one, is to minimize or eliminate the number of motions. The cost of interlocutory process-related motions in this town imposes an obligation on the judiciary to try to reduce their number to the absolute minimum necessary and, instead, attempt to resolve interlocutory process problems through case management.

[7] Accordingly, BMO and Brome Financial are directed to book a 9:30 appointment before me for the week of April 29, 2013. If senior counsel for Brome Financial still is at trial that week, the appointment can start as early as 7:30 a.m.; I’m flexible on the start time. At that appointment I want a full explanation from Brome Financial about why it did not disclose the Brome Action at the November case conference, as well as a concrete plan on how to deal with this new issue. Counsel should talk in advance of the case conference.

II. Third party claim against Brome Financial

[8] This claim has been settled.

III. Bump on the Road No. 2: Discoveries

[9] Although examinations for discoveries have more or less kept on schedule, for which I commend counsel, BMO and BDO stated that they each wanted to examine two additional representatives of the other, persons who would have personal knowledge of particular matters. Counsel are seeking instructions on the point. I would encourage them to reach an agreement. If they cannot, a 9:30 appointment should be scheduled quickly to address the issue.

[10] Scheduling commitments prevented Mr. Cooper from attending the examination of the BMO. Mr. Cooper shall send written interrogatories to BMO by May 9, and BMO should target responding by June 9.

[11] A dispute has arisen between BDO and BMO about the former’s examination of a representative of the latter. BMO takes the position that BDO exhausted its discovery rights; BDO takes the position that it legitimately adjourned further examination pending the determination of certain refusals made by BMO. I will attempt to deal with this dispute by way of written motion in accordance with the following schedule:

(i) BDO to deliver its motion materials: April 19

(ii) BMO to deliver its motion materials: April 29

(iii) BDO to deliver any reply materials: May 2

I will review the materials to determine whether I can decide the matter without oral argument. If oral argument is required, I will contact counsel.

IV. Mediation

[12] The parties have booked a mediation before the Honourable Ian Binnie for December 9 and 10, 2013.

V. Expert reports

[13] BMO intends to serve two expert reports on standard of care issues. BDO intends to serve expert reports on standard banking practices and the historical build-up of indebtedness. (The latter report may not technically contain opinion evidence, but may assist the judge in understanding the numbers.) Those reports must be served by October 15, and any responding expert report shall be served by November 30.

[14] BMO intends to serve a report from a forensic accounting expert. That report shall be served by September 1, and any reply shall be served by November 20.

[15] These timelines should ensure that prior to the mediation before Justice Binnie the parties shall have concluded the discovery phase of the litigation and exchanged expert reports.

VI. Next case conference

[16] The parties shall book a two hour case conference before me for one of the first two weeks of September, with the conference starting around 3 p.m. or so.

___________(original signed by)

D. M. Brown J.

Date: April 11, 2013