SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Elena Belovich and Alexandre Belovich, Plaintiffs

AND:

Elliot Steiner, Ellena Steiner, 1344272 Ontario Limited, O and L Developments Limited, Basis ‘A’ Development Corporation, 1460714 Ontario Limited, Elm Sheppard Inc., Elm Thornhill Woods Inc., 2079213 Ontario Limited, 14 Prince Arthur Avenue Limited, 3570 Brock Street North Limited, 1346046 Ontario Limited, 1346048 Ontario Limited, 1480031 Ontario Limited, Elm Davenport Residences Inc., Elm Ajax Residences Inc., Elm Ajax Plaza Inc., 1346181 Ontario Limited, 1460714 Ontario Limited, 1955 King Street Investments Limited, Elm Partners Rosedale Medical Hamilton Inc., Elm Capital Group Inc., Robert Cheung, Elm Kensington Residences Ltd., Larisa Goldovsky and Joseph Morano, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
E. Bisceglia, for the Plaintiffs

H. Gerson, for the Defendant, Robert Cheung

D. Moore and K. Jones, for the Steiner Defendants

CASE CONFERENCE DATE: June 24, 2013

case conference memorandum no. 3

[1] The parties have agreed to the Joint Litigation/Discovery Plan which is attached as Schedule “A”. From a case management perspective, the key goals of the examinations for discovery must be to identify with precision the issues in dispute and then establish the parties’ respective positions on each issue. Since the issues largely involve claims in respect of specific transactions and given the extensive independent accounting inquiries which have preceded the discoveries, the parties should be able to emerge from the examinations with a clear understanding of which transactions remain in dispute and the range of disputed values for each transaction.

[2] Following the discoveries an assessment will be made at the next Case Conference of the worth of conducting a mediation, as well as the potential length of the trial.

[3] The timetable contemplates potential motions for refusals and undertakings. There is no need for an undertakings motion. I order that all undertakings be answered within 60 days of the date of giving the undertaking.

[4] As to refusals motions, in my view they generally are a waste of time and add little value in terms of the evidence ultimately adduced at trial. Although I make no final determination on whether to schedule a refusals motion, I give fair notice to the parties that my general inclination is to avoid scheduling such motions and leave it to the parties to decide their own fates – i.e. if a party refuses to answer a question, and if at trial the judge determines the question was a proper one, then an adverse inference will be drawn against the refusing party in respect of the subject-matter of the question. Simply put, if one does not disclose, then one is taken to be hiding relevant information which would harm the party’s case. Of course, it is always open to the parties to avail themselves of Rule 34.12(2).

[5] The next case conference will be held on October 1, 2013 at 4 p.m. at 330 University Avenue, Toronto.

D. M. Brown J.

Date: June 25, 2013