SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Bank of Montreal, Plaintiff v. Mair Faibish et al., Defendants

AND:

RE: Brome Financial Corporation Inc., Plaintiff v. Bank of Montreal, Defendants

BEFORE: D. M. Brown J.

PRESENT:
M. Mohamed and J. Woycheshyn, for the Plaintiff, Bank of Montreal

A. MacDonald, for the defendant, BDO Canada Limited

L. Brzezinski and J. Polyzogopoulos, for Brome Financial Corporation Inc.

R. Quance, for the defendants, Taragh Bracken and Tarbrac Holdings Inc.

M. Cooper, for the defendant, Bektrom Foods Inc.

NOT PRESENT:

S. Erskine, for the defendants, Mair Faibish, and as agent for Renee Faibish and Libra Marketing Inc.

S. Clements, for the defendants, Michael Falcone, Michael Falcone Professional Corporation and FalconeTurnerMoore LLP

H. Wright, for the defendant, Terry Mak

J. Zibarras, for Giuseppe Gatti

HEARD: April 4, 2014

case conference memorandum no. 7

I. Mandated E-Trial for both actions

[1] In the last Case Conference Memorandum I asked counsel to consult as to whether the October 6, 2014 trial should be conducted as an e-trial. Some counsel (I will not indicate whom) communicated a desire to work in paper. BMO’s counsel indicated that the “paper” version of this trial would result in 10 binders of documents. At the same time BMO would be prepared to circulate a Summation-style database of relevant documents which could also be used at trial by those who so desired.

[2] Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems. While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service. As a service it must be alive to the way in which the community it serves handles and communicates information.

[3] Our community has undergone radical changes in the way it handles and communicates information. Take music, as an example. As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts. A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird. Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.

[4] Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

[5] Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials. More than enough time exists before the October 6 start date to organize the trial materials electronically. I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

II. Examinations for discovery

[6] Examinations for discovery have been completed, save for the one-day examinations of additional representatives of BMO and Brome which the parties have now agreed upon and have scheduled for around April 28 and 29, 2014. As a result of the agreement on this issue, I vacate the scheduled April 28 motion date.

III. Settlements

[7] BMO has settled with the Falcone and Mak defendants and has circulated a proposed amended Statement of Claim reflecting that settlement and the related Perringer agreement.

IV. Proposed BMO summary judgment motion

[8] BMO submitted that it wished to bring a summary judgment motion to dismiss the Brome Action on the basis of admissions it contended were given on the examination for discovery of the Brome representative. Brome stated it would file in response the large volume of evidence it intended to adduce at trial to establish the context in which those admissions would have to be understood. Brome also stated that it would not make sense to bring such a motion before it had the opportunity to examine Mr. Dupuis, a former BMO employee, later in April. I expressed the view that in light of those positions it was difficult to see the benefit of a summary judgment motion in terms of the overall costs of the proceeding. Counsel for BMO did not pursue the request, but I stated I would record BMO’s making of the request in this memorandum.

V. Trial preparation conference and trial calendar

[9] The next case conference will be held on June 26, 2014. In addition to receiving a status report on the preparation of these actions for trial, I would ask counsel to report on (i) the e-trial plan for these actions and (ii) the preparation of a trial calendar showing the proposed sequencing of witnesses over the course of the six week trial. Some parties play a more minor role in these proceedings, and their counsel have made the quite reasonable request that a trial calendar be prepared so that they can limit their attendances only to those days which affect their clients’ legal interests.

D. M. Brown J.

Date: April 5, 2014