SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: The Wish Group Inc. and Frank Cianciulli, Plaintiffs

AND:

Robert De Vrij and Interactive Brokers Canada Inc., Defendants

BEFORE: D. M. Brown J.

COUNSEL:
A. Di Domenico, for the Plaintiffs

N. Kluge, for the Defendant, Interactive Brokers Canada Inc.

R. deVrij, in person

HEARD: June 13, 2013

9:30 appointment endorsement

I. To litigate or not to litigate? A question not really open to parties who have transferred their case onto the Toronto Region Commercial List

[1] This September, 2011 action was transferred to the Commercial List on January 17, 2012. On March 14, 2012, the defendant, Interactive Brokers Canada Inc. (“Interactive”), obtained an order scheduling its motion for summary judgment for hearing on October 3 and 4, 2012. At that time Spence J. approved a detailed timetable which would have seen all materials filed with the court by September 21, 2012.

[2] That did not happen.

[3] On September 19, 2012, Morawetz J. re-scheduled the motion to a February 20 and 21, 2013 hearing because the parties were not ready, and he approved a timetable which would have seen examinations completed by November 9, 2012. All factums were to be filed by the end of January, 2013.

[4] That did not happen.

[5] By the time the matter came before me on February 1, 2013 on a 9:30 appointment for “scheduling”, the parties had not filed a completed summary judgment record with the court, nor any factums. So, between March 14, 2012 and February 1, 2013 the parties twice had received two-day hearing dates for the proposed summary judgment motion. They failed to meet either date.

[6] I would pause at this point to observe that such loose treatment of assigned court time no doubt reflects the fact that, as our court presently operates, judicial time is made available to parties at virtually no cost. One wonders whether parties would be so loose and free with court time if they had to pay hefty cancellation fees, as is the case when they resort to arbitration.

II. Directing a hybrid trial

[7] On February 1, 2013, I directed the parties to appear before me on February 12 to explain “why this matter should not go to trial. Read George Weston and be ready to explain”. I vacated the February 20/21 hearing dates.

[8] A brief attendance was held on February 12, 2013, and the parties came back before me on February 20, 2013 with a timetable for a hybrid trial. I appreciate the co-operation shown by counsel in developing that plan.

[9] Mr. DeVrij showed up at the end of that appointment, and I heard from him. I approved the timetable for a hybrid trial. The timetable would see all cross-examinations of fact witnesses completed by April 30, 2013, the examination of experts at the trial, and the completion of all motions by June 30, 2013. After hearing from Mr. DeVrij, I directed him to file, by the end of March, an affidavit containing his story which would serve as his evidence-in-chief at trial; his cross-examination would take place before the trial judge. I ordered Mr. DeVrij to serve his Statement of Defence on the parties that morning.

[10] I have listened to the DRD recording of the February 20 hearing. After describing the two key issues, counsel stated that their clients could go to trial even if Mr. DeVrij did not participate. The two issues they described were: (i) an allegation that fraudulent or inaccurate client statements had been sent to the plaintiffs, and (ii) Interactive had failed to properly supervise Mr. DeVrij whom, it is alleged, was not licensed to sell securities. Counsel stated that there was no dispute that the trades in question had been done by Mr. DeVrij.

[11] Not having seen Mr. DeVrij’s Statement of Defence, counsel expressed concern that they did not know what allegations he might make against the other two parties. To address that concern I concluded my endorsement by writing: “If after reviewing the S/Defence counsel wish to address any new matter, they can book a 9:30 before me”.

III. May 10, 2013

[12] I heard nothing further from the parties until they appeared before me on a 9:30 appointment on May 10, about three months later. Under the timetable which I had approved on February 20, by that point of time all examinations of fact witnesses should have taken place.

[13] Counsel informed me that Mr. DeVrij had served a Statement of Defence, but it consisted of one paragraph: “The defendant Robert de Vrij (“de Vrij”) denies the allegations in the statement of claim”.

[14] Pithy, in its own way, but wholly deficient under our Rules of Civil Procedure.

[15] Taken literally, the defence denied paragraph 5 of the Amended Amended Statement of Claim which pleaded that Mr. DeVrij resided in Toronto, a fact he had admitted by recording a Toronto service address on his Statement of Defence.

[16] In addition, counsel told me that Mr. DeVrij had not delivered his affidavit for use at the trial. That affidavit had been due March 30; the parties waited over a month to come before me to complain. I made an endorsement that Mr. DeVrij deliver his affidavit by May 30, 2013 and the parties re-appear before me during the second week of June.

IV. June 13, 2013

[17] Yesterday the parties re-attended. Mr. DeVrij ultimately showed up, but again was late. Counsel reported that Mr. DeVrij still had not filed an affidavit. Mr. DeVrij said he would do so by 1 p.m. on Monday, June 17. Given his previous failures to comply with my orders, I put little stock in that representation.

[18] I inquired of the parties where the other examinations stood. To my surprise, counsel informed me that they had not conducted the examinations of the fact witnesses set out in the approved trial plan. One counsel suggested that back on February 20 the discussion about scheduling had contemplated that those examinations would not occur until Mr. DeVrij had delivered his affidavit. My endorsement of February 20 did not make any such linkage, nor could I hear any discussion to that effect on the recording of the February 20 hearing. To the contrary, as I set out above, at that hearing I specifically asked counsel if they could proceed in the event that Mr. DeVrij did not participate in the action, and both confirmed they could. Perhaps there was some misunderstanding.

[19] Counsel requested that I make a further order against Mr. DeVrij. I do not see the point. First, Mr. DeVrij has failed to comply with two procedural orders; I see no point in making another order which may not be obeyed. Second, the parties have taken no steps to conduct the other examinations; I did not inquire about the status of the experts’ reports. Third, under the hybrid trial plan, if Mr. DeVrij does file an affidavit, then the parties can cross-examine him at trial as contemplated by my February 20, 2013 endorsement. If he does not, then Mr. DeVrij will have failed to put any evidence before the trial judge in support of his blanket denial defence, and no doubt legal consequences will flow from that decision. If the other parties want to secure his evidence at trial, I think some sub-rule in Rule 53 has something to say about that.

[20] Where to go from here? There are two options: Option A and Option B.

[21] Option A: As matters now stand, I have ordered a hybrid trial of this action. If the parties want to go to that trial, it is now up to them to do some work on this file. I see no need to make any further orders regarding the preparation for a hybrid trial. The parties know what they have to do to get this case ready for such a trial. If the parties want to go to such a trial, then once they have completed all pre-trial examinations, they may attend before me at a further 9:30 appointment to finalize the case for trial. If I am satisfied that the case is ready for trial, I will refer them to Morawetz J. to set a trial date. If the parties start to take this action seriously and complete the examinations over the next two months, we may be able to give them a date for a hybrid trial for the end of this year.

[22] Option B: If, however, the parties now wish to know Mr. DeVrij’s evidence before they conduct other examinations and go to trial – and given his pithy Statement of Defence, there is every prospect that Mr. DeVrij may file an equally “pithy” affidavit – then they can resort to the standard devices under the Rules of Civil Procedure to seek discovery of Mr. DeVrij. That is not the basis upon which the February 20 discussion took place. It would represent a change in direction for the prosecution of this action. However, if that is now what the parties want, I will not interfere with their ability to go down that (new) road. But, if they do so, I will remove this matter from the Commercial List and transfer it to the Civil List.

[23] To use the vernacular, if parties seek to come onto the Commercial List to play, then they must play by the Commercial List rules, which include: (i) moving a case from the start to the finish with due dispatch, (ii) few, if any, process-related motions, and (iii) compliance with orders given by case management judges. On February 20 I made an order which, if followed, would have seen this action go to trial this fall. No party has complied with that order.

[24] Counsel shall send me a joint letter by June 21, 2013, advising whether their clients choose Option A or Option B. That letter should be copied to Mr. DeVrij, but given his approach to date to this litigation, his prior concurrence to one of the options is not required; he has equal rights under either option.

[25] If counsel advise that their clients have chosen Option A, then my comments in paragraph 21 apply. Further, the parties may not bring any motions in this matter before that re-attendance before me, save that the parties may seek a 9:30 appointment before me, following the cross-examination of Mr. Bennett, to deal with the issue of the production of records about third parties which they raised at the February 20 attendance, if that issue remains outstanding. I should give the parties a head’s up that in the event affiants refuse to answer proper questions on their cross-examinations, I may decline to schedule a refusals motion and simply leave it to the trial judge to draw an adverse inference from any refusal of a proper question.

[26] If counsel advise that their clients have chosen Option B, then I will transfer this action back to the Civil List.

D. M. Brown J.

Date: June 14, 2013