SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Bardhyl Qirjaku and Guahara Qirjaku, Plaintiffs

AND:

Toronto Transit Commission, Bruno Trim and Rogelio Donato, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
J. Lim, for the Moving Party Defendant, Rogelio Donato

A. Blott, Q.C., for the Plaintiffs

HEARD: March 3, 2014

REASONS FOR DECISION

Trial preparation directions following an unsuccessful summary judgment motion

[1] By Reasons dated February 24, 2014, I stated that I was adjourning the summary judgment motion brought by the defendant, Rogelio Donato, to a judicial mediation, which in fact took place today. I should more accurately have stated that I was dismissing the summary judgment motion and scheduling a judicial mediation, for in paragraph 8 of my February 24 Reasons I wrote:

Given the absence of admissible evidence from Donato and the TTC, I asked Donato’s counsel whether he would be able to establish his client’s case on the summary judgment motion relying on any admissions secured on the discoveries of the plaintiffs. He conceded that he could not. Thus endeth the motion.

[2] Having dismissed Donato’s summary judgment motion, the plaintiff may serve and file to my attention, through the Commercial List Office, written cost submissions, including a Bill of Costs, no later than March 14, 2014. Donato may serve and file responding written cost submissions no later than March 28, 2014. The costs submissions shall not exceed three pages in length, excluding the Bills of Costs.

[3] Turning to the judicial mediation held on March 3, it became apparent that the disclosure of further information would be required before meaningful settlement discussions could take place. As a result, the time was spent discussing what information the parties required in order to be ready for trial. Based on that discussion, I give the following directions pursuant to Rule 20.05(2):

(i) The plaintiffs shall serve and file a Trial Record no later than March 31, 2014;

(ii) The plaintiffs shall deliver to defendants’ counsel the settlement documentation from their SABS claims no later than March 31, 2014;

(iii) By the end of May the plaintiffs shall deliver to counsel for the defendants the particulars and supporting documentation for their claims for lost income, future cost of care and medical rehabilitation;

(iv) By the end of June the plaintiffs shall have submitted to the two defence medicals requested by the TTC;

(v) By the end of September the parties shall participate in a full-day mediation. The plaintiffs and the TTC previously had agreed upon Mr. Louie Reznick to act as a mediator; counsel for Donato wanted a roster mediator and was not prepared to accept a pro rata share of Mr. Reznick’s fees. A roster mediator is not mandatory. If Mr. Reznick is available, the parties are free to use him. In any event, the costs of the mediation shall be shared pro rata by the parties, one-third each.

[4] Prior to the filing of the Trial Record the parties shall consult with the Toronto Region Civil Trial Co-ordinator about available trial dates later this year or early in 2014 and shall consult amongst themselves about dates for the trial of this action. The parties shall communicate their preferred trial dates to the trial co-ordinator when the Trial Record is filed. Upon the filing of the Trial Record, I direct that this action be placed on the Toronto Region Civil Jury Trial List for trials requiring less than 10 days and I abridge the 60-day waiting period specified by Rule 48.06(1). This trial most likely will take seven to eight days.

[5] If this matter does not settle at the mediation, it would be advisable to schedule a trial management conference before the trial date.

[6] Donato’s counsel requested the ability to cross-examine the plaintiffs’ experts before trial out-of-court. I was surprised by such a request. No such general right exists. I see no circumstance in this case which would justify departing from that general rule.

D. M. Brown J.

Date: March 3, 2014