SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-12-467344
DATE: 20130806
RE: SARNIA BIOFUELS INC.
Plaintiff
AND:
QUAD OCEAN GROUP LIMITED (UNITED KINGDOM, NO. 16646773), QUAD OCEAN GROUP LIMITED (CANADA, NO. 7715064) ROBERT ING. LUCIA ING, KEYSPACE CONSULTORIA E GESTAO, S.A., DOUG BROWN LAW, DOUGLAS BROWN, PLOUTOS CAPITAL INC., PETER PLATIS, PLOUTOS SECURITIES LTD., JOHN DOE, JANE DOE and DOE CORPORATIONS
Defendants
BEFORE: JUSTICE CHAPNIK
COUNSEL:
J. Thompson
N. Groot
for the Defendants (Moving Party) for the Plaintiff (Respondent)
HEARD: JULY 31, 2013
ENDORSEMENT (orally)
[1] The plaintiff’s claim against the defendants was issued on November 7, 2012. It asserts various allegations of wrongful conduct by the defendants relating to an investment instrument or Bond, and is a complex matter involving potentially several millions of dollars.
[2] The plaintiff has brought a number of motions to compel the defendants to disclose the location of the Bond and provide an accounting for it. That is not an issue now before me.
[3] The defendants bring this motion pursuant to rules 30 and 31 of the Rules of Civil Procedure for a further and better affidavit of documents and production from the plaintiff. They ask for various information that, they say, is necessary in order for them to properly defend the action.
[4] On May 21, 2013, the plaintiff brought a motion before a master to compel the defendants to comply with a discovery plan; and at that time, Master Abrams set out a timetable, as follows:
The plaintiff’s supplementary affidavit of documents to be served by June 15, 2013.
The defendants’ motion to be heard July 31, 2013 (today).
The corporate defendants’ sworn affidavits of documents by July 15, 2013.
Costs of the motion in the sum of $5,000 in favour of the plaintiff payable by July 15, 2013.
Discoveries to be set by August 2, 2013 and held by September 30, 2013.
[5] To date, item no. 1 has been complied with and the plaintiff has served and filed a comprehensive list of Key Documents in preparation for the examinations for discovery. However, numbers 3 and 4 have not been satisfied by the defendants who say they are working on the matters but have not yet been in a position to obtain the sworn corporate affidavits which, they say, mirror those of the personal defendants, in any event; or to raise sufficient funds to pay the costs ordered by Master Abrams.
[6] Both parties agreed to extend the date for examinations for discovery from September 30, 2013 to October 31, 2013 and the timetable is amended accordingly.
[7] The plaintiff seeks a dismissal of the motion or a stay for 30 days and an order striking the Statement of Defence after 30 days if the defendants fail to comply with the costs and production orders issued by Master Abrams on May 21, 2013.
[8] I am aware of rule 60.12 of the Rules of Civil Procedure dealing with the failure to comply with interlocutory orders of the Court; and the need to comply with court orders and move matters along in an efficient manner. However, this matter appears to be quite complex. Moreover, it is clear from her endorsement, first, that Master Abrams knew about this motion when she made her order on May 21, 2013; and second, that she contemplated that this motion would be brought before a Master. In my view, that would be a more appropriate forum to decide the issues raised by the parties today.
[9] Accordingly, this motion is dismissed without prejudice for the defendants to bring their motion if so advised, on an expedited basis, if possible, before a master. The parties agree that Master Abrams is not seized.
[10] Given the confusion as to the proper forum to bring the motion, the apparent complexity of the matters, and the fact that the court on May 2, 2013 was aware of the motion to be brought today when it made the orders it did, I decline to deal either with the defendants’ motion for further production or with the matters raised by the plaintiff except to change the date for discoveries on consent to October 31, 2013. Otherwise, the orders made by Master Abrams stand unless varied on consent or by further court order.
[11] In all the circumstances, given that I entertained no submissions nor made any findings on the merits, I make no order as to costs.
CHAPNIK J.
DATE OF REASONS FOR JUDGMENT: July 31, 2013
DATE OF RELEASE: August 6, 2013