COURT FILE NO.: 01-CV-18977
DATE: 2014/02/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PATRICK DEWAN, DOMICILE DEVELOPMENTS INC., 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC., 117490 CANADA LTD., THE ESTATE OF SHEILA EBERTS, 2201894 ONTARIO INC., BBG EQUITY MANAGEMENT CORPORATION AND POWELL GRIFFITHS, Plaintiffs
AND
CLAUDE-ALAIN BURDET, IN TRUST, JANET SUE BURDET, CLAUDE-ALAIN BURDET, 1457563 ONTARIO CORPORATION, CARLETON CONDOMINIUM CORPORATION 396, 1443957 ONTARIO INC., AND ENTREPRISE TED RUBAC ENTERPRISES INC., Defendants (the "Dewan Action")
BEFORE: Kane J.
COUNSEL: David Dwoskin and Jonathan P.M. Collings, counsel for the Plaintiffs in the Dewan Action Gary Boyd, counsel for the Administrator in the Dewan Action Claude-Alain Burdet, counsel for the Defendants in the Dewan Action
HEARD: February 4, 2014 (at Ottawa)
AND BETWEEN
COURT FILE NO.: 09-45430
RE: CARLETON CONDOMINIUM CORPORATION NO. 396, Plaintiff
AND
CLAUDE-ALAIN BURDET, CLAUDE-ALAIN BURDET IN TRUST, 1457563 ONTARIO CORPORATION, 1457563 ONTARIO CORPORATION IN TRUST, JANET SUE BURDET, NELSON STREET LAW OFFICES, L’ACADÉMIE CHRISTIANE SAUVÉ INC., AND INTERNATIONAL BEAUTY DEPOT, Defendants (the "CCC 396 Action")
BEFORE: Kane J.
COUNSEL: Fabrice Gouriou, counsel for the Plaintiff in the CCC 396 Action Claude-Alain Burdet, counsel for the Defendants in the CCC 396 Action
HEARD: February 12, 2014 (Case Conference)
ENDORSEMENT
DEWAN ACTION
Plaintiffs' Motion
[1] The plaintiffs today seek;
(a) An adjournment of the trial of this action scheduled for two weeks commencing March 24, 2014, to a date to be set after the completion of the ongoing trial in the CCC 396 Action which is scheduled for June 16, 2014.
(b) A declaration that all summons issued for the commencement of this trial on March 24, 2014 remain active and binding upon the witnesses to the new commencement date of this trial.
(c) Cost on a substantial indemnity basis.
[2] The plaintiffs have undertaken and intend to call Mr. Brazeau as their expert in the Dewan Action trial.
[3] Mr. Brazeau is an expert of Carleton Condominium Corporation 396 in the CCC 396 Action wherein his testimony has begun but was not yet completed. Cross-examination of this witness began but was then adjourned as the witness was unavailable due to other commitments. The parties therefore agreed and the defendants proceeded with their first witness who testified in-chief and in cross-examination and provided detailed accounting evidence. The trial, having consumed the allotted time in June, 2012, then adjourned for resumption at a later date. The court at that time ordered that Mr. Brazeau prepare a responding report and testify to accounting testimony led by the defendants to that point.
[4] On November 14, 2012, this court ordered the trial in the CCC 396 Action to resume on February 25, 2013 and the defendants' motion for summary judgment therein to proceed on November 21, 2012.
[5] On November 23, 2012, this court dismissed the defendants' motion for summary judgment and the dismissal of the CCC 396 Action.
[6] In approximately January, 2013, the office of counsel for the defendants advised that Mr. Burdet was unavailable to resume the trial in the CCC 396 Action on February 25, 2013 for health reasons.
[7] Plaintiffs' counsel and a representative of the defendants attended court on March 8, 2013. Defence counsel for health reasons continued to be unable to resume the trial in the CCC 396 Action. For that reason, resumption of that trial was re-scheduled to commence on June 3, 2013.
[8] On May 22, 2013 counsel for all parties attended court. Health reasons of defence counsel prevented resumption of the above trial in the CCC 396 Action on June 3, 2013. On consent, December 16, 2013 was scheduled for resumption of the CCC 396 Action, for five days.
[9] On November 14, 2013, the court was advised that due to the unavailability of the plaintiffs and defendants' witnesses, resumption of the trial in CCC 396 Action on December 16, 2013 was not possible. The court was advised that discussions were being conducted between the parties. On consent, resumption of this trial was adjourned to a date to be agreed upon by counsel and set by the trial coordinator.
[10] Mr. Burdet, on February 4, 2014, advised that counsel in the CCC 396 Action had not agreed upon a resumption date. This court understood that action was to resume on June 4, 2014. Defence counsel advised that resumption of that trial may not be possible prior to November, 2014. Mr. Burdet was advised that counsel in the CCC 396 Action were to attend before Kane J. during the week of February 10, 2014, in order to schedule the resumption date of this trial.
[11] The defendants in the Dewan Action, oppose the adjournment request by the plaintiffs in this action and seek confirmation that the Dewan trial will commence on March 24, 2014.
ANALYSIS
[12] Given the repeated delays over the last 20 months to re-schedule the resumption of the trial in the CCC 396 Action, the necessity to complete the testimony of Mr. Brazeau in that action and the previous orders of this court in both of these proceedings; the scheduled commencement of the trial of the Dewan Action is adjourned to a date to be set by this court as dealt with below.
[13] I agree with the defendants' submissions, as articulated in paragraph 88 of this court's decision dated September 30, 2011, that delay in the trial of the Dewan Action operates to the benefit of the plaintiff's minority condominium units owners and to the detriment of the defendants and must be avoided.
[14] The delay in the resumption of the trial in the CCC 396 Action is not the fault of the Condominium Corporation. For health reasons, that delay is not the fault of defence counsel. That said, that action must now be completed as soon as possible.
[15] In prior orders, this court indicated that the trial in the CCC 396 Action was to proceed before the overdue reporting by the court appointed Administrator and the trial of the Dewan Action, because determination of the issues in the claim of CCC 396 would impact those proceedings and potentially shorten the same. The court is referring to its decisions in both actions dated January 11, 2012, paragraphs 29-30 and the Reasons for Judgment in the Dewan Action dated September 30, 2011, paragraph 137.
[16] It is preferable that the testimony of Mr. Brazeau in the CCC 396 Action be completed prior to the commencement of his testimony in the Dewan Action.
[17] It is in the interest of the parties and the administration of proceedings in this court that these two actions and the outstanding issues therein proceed to trial and determination as soon as possible.
[18] The adjournment of the Dewan Action and the continued validity of summons therein already served are granted. The served summons will remain valid until trial.
[19] There is merit to the position of each party on this motion and accordingly there shall be no order as to costs on this motion.
CASE CONFERENCE ENDORSEMENT IN THE CCC 396 ACTION AND DEWAN ACTION
[20] Counsel in the Dewan and CCC 396 Actions were requested to attend a case conference on February 12, 2014. Due to the above determination and for the purpose of the February 12 case conference, this court on February 6, 2014, provided counsel in both actions with several alternate trial dates and requested they attend a case conference today to select a trial date in each action.
[21] Mr. Burdet today requested that the trial in the Dewan Action proceed prior to the completion of the trial in the CCC 396 Action. That request was denied for the above reasons. Mr. Burdet will be hospitalized in late May or early June, 2014. After consulting with all counsel, the following trial dates were set:
(1) CCC 396 Trial Completion: May 12 to 16, 2014
(2) Trial of the Dewan Action: September 8 to 19, 2014 (before Kane J. or another judge)
[22] That concluded the case conference.
Kane J.
Release Date: February 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: PATRICK DEWAN, ET AL,
AND
CLAUDE-ALAIN BURDET, IN TRUST, ET AL,
AND BETWEEN
CARLETON CONDOMINIUM CORPORATION NO. 396
AND
CLAUDE-ALAIN BURDET, IN TRUST ET AL
BEFORE: Kane J.
ENDORSEMENT
Kane J.
Released: February 14, 2014