SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: York University, Plaintiff

AND:

Michael Markicevic, Janet Fleming, Mima Veronica Markicevic, Aleeyah Apparel Inc. operating as A-Tech Construction and Design Inc., Aleeyah Inc., AFC Inc. operating as Arsenal Facility Consulting Inc., Toronto Engineering Company, Guga’s International, Canadian & American Concrete Renovation & Drain-Layer Ltd., Roman Ritacca, Luigi Lato, Phil Brown, Riaz Jadavji, Helen Saoulli, Guram Sekhniashvili, Gia Sekhniashvili, John Doe #1, John Doe #2, John Doe #3, Jane Doe #1, Jane Doe #2 and Jane Doe #3, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
D. Varah and B. Kolenda, for the Plaintiff

L. Caylor, for the Defendants, Michael Markicevic, Janet Fleming and Mima Veronica Markicevic

HEARD: November 29, 2013.

case conference memorandum no. 2

I. Request to vary a case management timetable

[1] The plaintiff and the Markicevic Defendants seek differing variations of the litigation timetable set out in Case Conference Memorandum No. 1 dated July 25, 2013.

II. The history of case management orders in this action

[2] Case management of this action started with the directions contained in my January 21, 2013 Reasons in which I asked the parties “to consult over the next few weeks to develop a plan for ‘next steps’ which would see this matter proceed to trial in a reasonably quick fashion”. I also directed the development of a formal e-discovery plan, and required the holding of a case conference in “late February or early March, 2013”.

[3] The latter did not happen. As matters transpired, the Markicevic Defendants came back to Court requesting the lifting of a certificate of pending litigation in order to access funds for their legal defence. As I wrote in my June 25 Reasons:

So, here the parties stand, five months after my decision on their first round of summary judgment and Mareva motions, no closer to trial, and with one defendant asking for access to her property in order to fund the defences of herself, her mother and her father.

[4] In those June 25 Reasons I discharged the CPL, but on terms, one of which required that “counsel of record for the Markicevics file an undertaking with this court that in the event proceeds are obtained from a financing or sale of the Vaughan Residence, they will remain as solicitors of record for their clients through to the end of the trial of this action.” No such undertaking has yet been filed, no doubt because of the appeal York University has taken from that order. I also directed that a case conference be held this past July, concluding as follows:

When the parties re-attend before me in July, I really would like to be in a position to impose a binding timetable for all pre-trial steps. Of course, my ability to do so will depend upon whether the conditions for accessing the equity in the Vaughan Property have been satisfied.

[5] That then led to the July 25 case conference at which I made the following case management order:

Counsel for the plaintiff and the Markicevic defendants have agreed on a framework for productions and discoveries:

(i) The parties will exchange productions by August 19, 2013;

(ii) Productions will be exchanged electronically in large part. York will provide access to its web-based document repository; York will post on its repository electronic copies of the Markicevic defendants’ productions;

(iii) The three computers – Mima, laptop; Janet, desktop; and Michael, laptop – have been preserved and some indexed. The computers will be placed in the hands of the ISS. It appears that there are less than 8,000 documents on the computers;

(iv) Counsel have not yet scheduled oral discoveries, but they will able to conclude them by the end of this year. If refusals issues arise, counsel should book a 9:30 appointment before me to discuss the issues and, if necessary, to arrange a motion date.

I also directed counsel to book the next case conference for the week of December 9, 2013.

III. The present status of this action

[6] Counsel advised that on October 29, 2013, the Divisional Court granted York University leave to appeal from my decision dated June 25, 2013. York University has not yet perfected its appeal, but intends to do so shortly. Counsel advised that the Divisional Court currently is setting dates for the hearing of appeals in March, 2014. Based on the information counsel have provided, it appears that the appeal may not be disposed of until about a year after the release of the June 25 Reasons.

[7] Notwithstanding the case management orders contained in Case Conference Memorandum No. 1, the parties have not exchanged productions or commenced examinations for discovery.

[8] The Markicevic Defendants intend to serve their affidavits of documents today; York University stated it would serve its next week.

[9] The parties differ on what should happen on the examination for discovery front. The Bennett Jones firm now represents Mr. Markicevic, his wife, Janet Fleming, and his daughter, Mima Markecevic. Counsel for those Markicevic Defendants proposes proceeding with the examinations for discovery of Fleming and Mima, but extending the time for conducting the examinations of Markicevic and York University until the Divisional Court deals with the appeal. As put by counsel his letter to the Court dated November 26, 2013:

Given that the subject of York’s appeal affects the ability of our fees to be paid in this matter, we are respectfully requesting this limited extension until such time as York’s appeal is resolved and our ability to be paid for our services as they relate to Michael Markicevic is thereby determined.

At today’s case conference counsel for the Markicevic Defendants stated that the examinations of Fleming and Mima should not take very long and both those defendants would like to put behind them the understandable anxiety associated with discoveries before the coming holiday season.

[10] York University, on its part, wants to put all examinations for discovery on hold and not proceed with a first round of examinations of Fleming and Mima:

In our view, this will result in time and money being wasted in preparing for two sets of discoveries…Counsel will have to review these documents and prepare twice, particularly as the discoveries will likely proceed several months apart.

Ultimately, any trial in this matter will have to await discovery of Mr. Markicevic and the York representative. If those are to be delayed, in our respectful submission, all discoveries should be similarly delayed.

IV. Analysis and directions

[11] York University commenced this action on January 26, 2012; it served Michael Markicevic and his family with the Statement of Claim on June 9 and 11, 2012, when it served its motion seeking injunctive relief.

[12] In reasons released at the beginning of this year I asked the parties to work towards ensuring that this action “proceed to trial in a reasonably quick fashion”. Looking at where the action stands today, 1.5 years after service of the statement of claim, the parties are no closer to readiness for trial than they were at the start of 2013. In addition, the plaintiff has exercised pre-trial rights of appeal which it enjoys under the Rules of Civil Procedure, the practical effect of which will be to delay major trial preparation steps in this action until at least the Spring of 2014.

[13] Our Rules of Civil Procedure contemplate that actions will be listed for trial within two years following the filing of a statement of defence (Rule 48.14(1)), and as a case management judge I continue to hold the view, perhaps somewhat naively, that the purpose of case management is to shepherd a civil action through the Superior Court of Justice of Ontario in about 2.5 years from start to finish. (I increasingly recognize that my view stands as a minority one.) From the information provided by counsel, it appears that it will be another half year before the critical issue of the availability of funding for some of the defendants will be decided. A trial of this case within 2.5 years from its commencement therefore appears completely unrealistic.

[14] Many arbitrators offer adjudication services in which interim orders cannot be appealed, thereby ensuring the timely movement of the case from beginning to its final disposition. Perhaps at some point in the future our Court will develop a similar service with equivalent rules. At present, our Court does not offer such an option to litigants seeking a quick adjudication of their dispute, and the case management of actions in our Court consequently operates subject to delays which may arise when a party exercises appeal rights under the Rules of Civil Procedure.

[15] Given that reality, for two reasons I see little point in making any further case management orders in this action directing the timing of discoveries until the Divisional Court renders its appeal decision. First, no party has adhered to the timelines ordered in Case Management Memorandum No. 1. Second, my June 25 Order sought to bring a cost-proportionate solution to the conduct of this fraud action. To authorize a first round of discoveries over the next few weeks, then have counsel down discovery pens for several months and then ramp back up for Round 2 of discoveries would not be a direction consistent with the principle of proportionality. It would add to, not reduce, the overall costs of this proceeding.

[16] I do order that the parties are to re-attend at a further case conference before me within three (3) weeks following the release of the Divisional Court decision. By that point of time, about two years will have passed since the service of originating process on the defendants. In light of that passage of time, I query whether further “open-ended” case management of this action would make any sense. Instead, I most likely will engage in “close-ended” case management by discussing with the parties the fixing of a peremptory trial date for this action, and the parties simply will have work to complete all pre-trial steps prior to that trial date. Frankly, I see no other way to move this action forward to trial in something less than three or four years.

D. M. Brown J.

Date: November 29, 2013