SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-CV-433491
MOTION HEARD: May 30, 2013

RE: 11-CV-433491
1603705 Ontario Inc. v. Misir et al

BEFORE: Master Joan Haberman

COUNSEL:
Wagman, C. for the moving parties
Singh, K. for the responding parties

ENDORSEMENT

Master Haberman:

[1] At some time in 2008, Ivan Terziev, an office and director of the plaintiff, 1802656 Ontario Inc., entered into an arrangement with Dev Misir on behalf of the plaintiff corporations. The nature and scope of that arrangement and whether Misir has honoured his obligations pursuant to it is are at the core of this action and, therefore, these issues dictate what is and what is not relevant for the purpose of written and oral discoveries. This is an important starting point, in the context of a motion that involves an affidavit of documents that is alleged to be deficient.

[2] Although the primary relief sought in the notice of motion is a dismissal of the action, the matter was argued as a motion for a further and better affidavit of documents from the Misir defendants as well as a fixed date for Misir to present himself for discoveries. I therefore approached the relief ordered on the basis of how the motion was argued.

[3] My order was given at the end of oral argument, with Reasons to follow.

PRELIMINARY ISSUES

Respondents’ request to file supplementary affidavit

[4] The first preliminary issue involved Mr. Singh’s request to file a supplementary affidavit from Mr. Misir, 5-pages in length.

[5] This motion date was booked in January 2013 and the motion record was served on April 9, 2013.

[6] The responding materials were filed within the time frame contemplated by the Rules, on May 23rd, for a May 30th return date. Though technically in compliance with the Rules, on a motion where cross-examinations would have assisted in sorting out the factual discrepancies in the parties’ materials, delivery of responding materials so close to the return date can be problematic and it has been here.

[7] As a result, had Mr. Wagman sought to adjourn the motion to cross-examine Mr. Misir, I would have been amenable to such a request. While this is the path he would have chosen had time permitted, Mr. Wagman advised that he was content to proceed on the materials, as filed, in the interests of getting on with this matter, as this was a motion he felt compelled to bring because of what he views of the defendants’ delays. Adjourning at this stage would only serve to compound that delay.

[8] It was against that backdrop that I was compelled to deal with Mr. Singh’s request to file this further affidavit from Mr. Misir, only served a day or two earlier. Mr. Wagman strenuously objected to allowing more evidence in at this late date, as he did not wish to adjourn but felt he would be compelled to do so if the new evidence was admitted.

[9] In response, Mr. Singh made two contradictory submissions: on the one hand, he asked that he be permitted to file this new material as it contained crucial evidence. When asked how it was that he had neglected to file this crucial material at the outset, he explained that this evidence had been omitted “by oversight.” Mr. Singh was unable to reconcile how his failure to provide critical evidence was an oversight or to provide any good reason for the court to accept his materials at such a late date in the face of Mr. Wagman’s objections. Essentially, all the court was told was that the responding parties had somehow left out the most important part of their story, not because of newly discovered facts or documents – but because they simply forgot.

[10] Regardless of the state of the law or the facts surrounding the events giving rise to a motion, a party’s chance of success is only as good as the evidence he puts before the court. It is therefore necessary for counsel to do their research before they draft their motion material, so they understand the legal tests they must address and re able to do so in their written materials, including the evidence they put before the court.

[11] Preparing written materials for a motion is not a perfunctory task and involves far more than simply setting out a chronology of events. Counsel must carefully consider the issues that will likely arise, be aware of the weaknesses in their position and consider how best to address them.

[12] This is an easier task for a respondent than for the moving party, as the respondent has the benefit of having already received and reviewed the moving party’s materials when they begin to draft their own. As they know precisely what issues the moving party plans to put before the court, regardless of what they may wish to also raise, they know where the court’s initial focus is likely to be.

[13] It is therefore very difficult to understand how a law firm, acting on its own behalf, neglected to file the evidence that I am now told is “crucial”. It is also difficult to understand why they were of the view that they could simply walk this evidence into court more than 6 weeks after having been served with the moving parties’ motion record and on the brink of their matter being heard. This is not a case of a client who failed to appreciate the significance of certain events so neglected to ad vise their counsel of it – Misir is the client, as well as counsel. It is also not a case where they were taken by surprise by Reply materials.

[14] The Rules regarding service and filing of motions materials were amended in January 2010 with a purpose. The goal of setting these staggered timeline for the exchange of materials was, in part, to ensure that all parties had sufficient time to prepare so that hearing dates set with the court would be used. An adjournment of a scheduled event means court time that was set aside for that event is wasted and lost forever. Having Rules that govern who must do what and when they must do it safeguards court time, a valuable and ever- dwindling resource.

[15] On the basis of all of the foregoing, I refused to accept the additional responding materials in court.

[16] This, however, did not end the matter.

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