SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

CV-13-10138-00CL

RE: CGI Information Systems and Management Consultants Inc., Applicant

AND:

eHealth Ontario, Respondent

CV-13-10150-00CL

RE: eHealth Ontario, Applicant

AND:

CGI Information Systems and Management Consultants Inc., Respondent

BEFORE: D. M. Brown J.

COUNSEL: F. Paul Morrison, Christopher Hubbard and Melissa Atkin, for CGI Information Systems and Management Consultants Inc.

J. Richler and Robin Linley, for eHealth Ontario

HEARD: October 1, 2013

REASONS FOR DECISION

[1] In December, 2011, eHealth Ontario contracted with CGI Information Systems and Management Consultants to design and build a Diabetes Registry (the “Agreement”). On September 18, 2012, eHealth gave notice that it was terminating the Agreement. CGI seeks payments of amounts it contends are due to it under the Agreement; eHealth takes the position that it was justified in terminating the Agreement.

[2] Schedule 19 to the Agreement contained a detailed dispute resolution mechanism. Nevertheless, a dispute arose between the parties as to whether their disagreements should be adjudicated by way of arbitration or by way of litigation. Two competing applications came before me today: CGI sought an order appointing an arbitrator; eHealth sought an order that the contractual dispute be dealt with by way of litigation in this Court and consolidated with a defamation action commenced in this Court by CGI against eHealth and certain media defendants (CV-12-470093). CGI commenced another defamation against Her Majesty the Queen in Right of Ontario (CV-12-470961).

[3] Before hearing the applications, I offered the parties several procedural options for the adjudication of their disputes. Counsel consulted with their instructing solicitors who were present in Court and advised that their clients were amenable to the option which would see the dispute proceed in this Court, subject to case management and the scheduling of a trial for early next Fall. I appreciate the constructive approach which the parties brought to the issue of “where to fight”. I will case manage this proceeding until trial.

[4] I adjourned the two applications to a case conference in these proceedings which will be held on Monday, October 28, 2013, at 3:30 p.m., for up to two hours, in order to put in place a litigation plan for this dispute. I would ask the parties to consult in advance of the case conference to try to come up with a common litigation plan which addresses the following matters:

(i) The framing of the issues in dispute. I am open to the means by which the parties wish to frame their dispute, whether by formal pleadings or by statements of issue. Whichever means the parties prefer, the means must provide the trial judge with a clear understanding of each party’s position in the dispute;

(ii) The scope of documentary production. While I have no doubt that the relationship between the two parties generated significant documentation, I would ask the parties to focus their production discussions on those documents which are material to the issues for trial. The parties also might wish to consider whether they deliver with their pleadings or statements of issue those material documents upon which they intend to rely at trial in support of their claims or defences, a process which might narrow the scope of any necessary further production;

(iii) The timing of examinations for discovery and the identities of the persons to be examined. I would think that discoveries would need to be finished in the March, April or May, 2014 time frame;

(iv) Whether any evidence for trial could go in by way of affidavit – for example, uncontested background information or narrative;

(v) Whether the parties intend to call any expert evidence at trial. If they do, on what issues and how many experts? The parties should also discuss the timing for the delivery of expert reports;

(vi) What, if any, pre-trial motions the parties might intend to bring. As I mentioned in court, I am not a big fan of interlocutory motions, and I think the parties must view any potential motions from the perspective of whether those motions would be necessary to ensure a fair trial of the issues. As to possible refusals on examinations for discovery, recently in Bank of Montreal v. Faibish, 2013 ONSC 5848, I offered the parties a choice on how to deal with any remaining refusals. I wrote:

Option A: I am prepared to write an endorsement which states that the parties have agreed to refrain from bringing refusals motions, but on the clear understanding that by so doing they will not be faced at trial with the submission by an opposite party that their failure to move on refusals should work against them. Under this scenario, if, at trial, an issue arises about a question refused, then the trial judge can consider the matter. If the trial judge concludes that the refusal was proper, so be it. If the trial judge concludes that the refusal was improper, then an adverse inference would be drawn against the refusing party for failing to disclose material evidence; or,

Option B: Alternatively, if the parties cannot agree on that approach, they should let me about the volume and the nature of the refusals on which they wish to move. I will consider whether or how to schedule a refusals motion. I should observe that in light of the offer of Option A, if the parties insist on a refusals motion, they risk cost consequences if their positions turn out to be incorrect.

The parties in that case chose Option A. I would ask the parties in the present case to consider adopting a similar approach.

(vii) The anticipated length of the trial, as well as available blocks of time for a Fall, 2014 trial.

Following the case conference I will confer with Morawetz J. to set a trial date for the dispute.

[5] If the parties are unable to agree on a common litigation plan, I would ask that they send me their respective proposals no later than Friday, October 25, 2013.

[6] As to the defamation actions, I hereby transfer them both to the Commercial List, where they will be case managed with the contract dispute action. Whether any steps in those proceedings should be held in abeyance pending the determination of the contract dispute and/or whether the defamation actions should be tried after the contract dispute are matters which counsel should discuss before the case conference. I would ask counsel for CGI to send a copy of these Reasons to all counsel for the media defendants in the CV-12-470093 defamation action.

[7] I understand that the Crown has scheduled a motion to strike in the CV-12-470961 defamation action for April, 2014 on the Civil List. I vacate that motion date. If at the case conference the Crown indicates that it wishes to proceed with that motion, I will hear it on a date to be set for the week of December 9, 2013.

D. M. Brown J.

Date: October 1, 2013