SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Caja Paraguaya de Jubiliaciones y Pensiones del Personal de Itaipu Binacional, Plaintiff

AND:

Eduardo Garcia Obregon a.k.a. Eduardo Garcia a.k.a. Eddie Obregon, Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a. Claudia Patricia de Garcia a.k.a. Claudia Santisteban, Ligia Ponciano, Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094), Genesis (LA), Corp. (Alberta Corporate Access Number 2013145921), FC Int, Corp., First Canadian Int, Corp., Union Securities Limited, Scott Colwell, Marty Hibbs, Hibbs Enterprises Ltd., Columbus Capital Corporation, Antonio Duscio, Leanne Duscio, Leanne Duscio carrying on business as The Queen St. Conservatory, Catan Canada Inc., Vijay Paul, Greg Baker, Bradley F. Breen, Lou Maraj, 2138003 Ontario Inc., Mackie Research Capital Corporation, First Canadian Capital Markets Ltd., First Canadian Capital Corp., FC Financial Private Wealth Group Inc., Jason C. Monaco, Daniel Boase, Paolo Abate, Nikolaos Sylianos Tsimidis, Genesis Land Development Corporation, Limited Partnership Land Pool (2007), and GP LPLP 2007 Inc., Defendants

AND BETWEEN:

Eduardo Garcia, FC Int, Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094) and Patricia Garcia, Plaintiffs by Counterclaim

AND

Upper Canada Explorations Limited, Parkside Resources Corporation, Global Sport Technologies Corp., and Caja Paraguaya de Jubiliaciones y Pensiones del Personal de Itaipu Binacional, Defendants by Counterclaim

BEFORE: D. M. Brown J.

COUNSEL:
J. King and J. De Vellis, for the Plaintiff

R. Craigen, for the Defendants, Eduardo Garcia, Patricia Garcia, Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094), Genesis (LA), Corp. (Alberta Corporate Access Number 2013145921), FC Int, Corp. and First Canadian Int, Corp. (conference call only)

A. Rose and D. Spence, First Canadian Markets Ltd., First Canadian Capital Corp., FC Financial Private Wealth Group Inc., Jason C. Monaco, Daniel Boase, Paolo Abate and Nikolaos Sylianos Tsimidis

A. Vivolo, Genesis Land Development Corporation, Limited Partnership Land Pool (2007) and GP LPLP 2007 Inc.

Not participating

G. Watt, Union Securities Limited

E. Sherkin, for the Third Party, Parkside Resources Corporation

Ligia Ponciano, defendant

G. Petker, for Scott Colwell, Marty Hibbs and Hibbs Enterprises Ltd.

K. Sherkin, for Antonio Duscio, Leanne Duscio, Leanne Duscio carrying on business as The Queen St. Conservatory and Catan Canada Inc.

Vijay Paul, defendant

Greg Baker, defendant

HEARD: Case conference held December 9, 2013.

case management memorandum no. 2

I. Genesis Land Development settlement motion

[1] Genesis Land Development recently served its motion for the approval of a settlement which would see the deposit into court of certain units. From the discussion with counsel, the motion may resolve. I would ask counsel to let me know by January 8, 2014, whether the motion will proceed on consent, unopposed or opposed. If a motion date will be required, counsel shall provide me with some suggested dates.

II. The “Fogler Cajubi Documents” Motion

[2] Counsel previously advised that this issue has been resolved without the need for a motion.

III. Status of the examinations for discovery

[3] Significant progress has been made on the examination for discovery front. If the Genesis Land Development settlement is not resolved or approved, examinations of its representative will be required. Two more days of examination of Mr. Garcia are needed – one by the plaintiff and one by the First Canadian defendants. Mr. Garcia has requested banking records from financial institutions. Mr. Craigen intends to direct the financial institutions to send his client’s banking records to him to deal with outstanding undertakings given by Mr. Garcia. Once those records have been produced, the examinations of Mr. Garcia can continue. In my view, the examinations of Mr. Garcia should be completed by the end of February, 2014.

IV. Undertakings

[4] I order that all parties provide answers to their undertakings no later than 60 days following receipt of the transcript of their examination for discovery.

V. Refusals

[5] On the issue of refusals I offer the parties the following options:

a. 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;

b. Option B: The parties may deliver, to my attention, motion records for refusals motions in writing no later February 28, 2014. They shall deliver responding motion records or materials, to my attention, no later than March 14, 2014. I shall deal with the refusals motions as motions in writing. However, as indicated at the case conference, I wish to give the parties a “heads-up” that if they proceed by way of motion, I shall approach the costs of that motion on an “amount per refusal” basis, specifically $1,500.00 per refusal, payable within 30 days. That is to say, if the defendants move on 8 refusals, but succeed only on two, they may risk adverse cost consequences of up to $6,000 (i.e. success on 2 refusals (+$3,000) less failure on 6 refusals (-$9,000), or a “net” adverse cost award of $6,000). By communicating my approach to costs to the parties in advance of them bringing a refusals motion, I wish to afford them an opportunity to a take a sober look at exactly how many refusals are material for a fair determination of the issues at trial and therefore require adjudication by this Court;

c. Option C: The parties can identify those refusals in respect of which they wish to use Option A and those in respect of which they wish to proceed with a motion under Option B. I offer this third option recognizing that in some actions important, proper questions may well be wrongfully refused on an examination and that fairness requires an adjudication of those refusals in advance of the trial so that the actual disclosure of specific information occurs before trial, rather than simply relying on the drawing of an adverse inference. The number of such material refusals in any action usually is quite small, based upon my review over the years of transcripts filed by parties in other cases. The cost consequences outlined in Option B should operate to confine the number of argued refusals only to very material issues.

I would ask counsel to write me a joint letter no later than Friday, January 24, 2014, advising which of the Options their clients have selected.

VI. Potential summary judgment motion

[6] The plaintiffs have prepared a summary judgment motion against some of the First Canadian defendants: FC Financial Private Wealth Group Inc., Jason C. Monaco, Daniel Boase, Paolo Abate and Nikolaos Sylianos Tsimidis. The scheduling of any summary judgment motion will be held in abeyance until the completion of the examinations of Mr. Garcia by the end of next February.

VII. Expert witnesses

[7] I direct that target dates for the delivery of reports-in-chief by any expert shall be May 1, 2014, with responding expert reports to be delivered by August 4, 2014.

VIII. Next case management conference

[8] The next case management conference shall be held before me no later than March 28, 2014. Counsel shall consult about a date convenient to the greatest number and book that date no later than February 15, 2014. Items to be discussed at the next case management conference will include: (i) reviewing the status of examinations for discovery and related issues; (ii) scheduling any summary judgment motion; (iii) any issues regarding securing the evidence of any trial witness out-of-court in advance of the trial; (iv) any issues regarding securing documents from third parties, either those in Canada or those outside of Canada; and, (v) tentative trial dates - I would like to target fixing a trial date for this action for early 2015. Finally, I would ask counsel to prepare a preliminary chart which identifies every witness who will be called at trial and estimates of the lengths of their examinations-in-chief and cross-examinations.

D. M. Brown J.

Date: December 10, 2013