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, T. McRae 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)

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

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

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

C. Freeman, Union Securities Limited (by teleconference)

Not participating

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

Ligia Ponciano, defendant

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

Vijay Paul, defendant

Greg Baker, defendant

HEARD: Case conference held June 9, 2014.

case management memorandum no. 4

[1] The plaintiff filed a status update by letter to the Court dated June 6, 2014. No other party filed any materials or provided any other written information.

I. Union Securities’s issues

[2] Union Securities shall serve the answers to its outstanding undertakings no later than June 24, 2014.

[3] As to the disclosure of the terms of the settlement reached between the plaintiff and certain former employees of Union Securities, counsel for Union Securities should contact Mr. Petker to ascertain whether his clients object to such disclosure. The plaintiff does not object.

II. Production of documents by Garcia defendants

[4] In the February 12, 2014 Case Conference Memorandum No. 3, I ordered the Garcia Defendants to produce to plaintiff’s counsel full copies of bank records. Some documents were only produced by the Garcia defendants a few hours before yesterday’s case conference. The conduct of the Garcia Defendants is leading me to conclude that they will not comply with their production obligations in a timely fashion. I would also note that those defendants failed to comply with paragraph 6 of Case Conference Memorandum No. 3 dealing with the preparation of a trial witness chart.

[5] Plaintiff’s counsel contended that the production of bank records was incomplete; counsel for the Garcia Defendants contended it was complete. I am surprised such a dispute exists. It is the obligation of counsel to work out these very simple (and obvious) production matters. I do not intend to spend time on this matter given the evident failure of counsel to communicate with each other. Case conferences are designed to facilitate informal resolutions of procedural problems, but they require willing and co-operative counsel to be effective.

[6] Accordingly, if counsel cannot resolve this issue, and if the plaintiff decides it intends to move on what it considers to be incomplete productions, then the plaintiff will have to bring a formal motion before a Master. If the plaintiff decides to do so, I order that the plaintiff book such a motion date no later than June 30, 2014. Presumably it will take several months for that motion to be heard.

III. Issues concerning the Duscios

[7] The plaintiff contends that the Duscios have not answered all outstanding undertakings; the Duscios disagree. Again, if counsel cannot resolve this issue, and if the plaintiff decides it intends to move on what it considers to be unanswered undertakings, then the plaintiff will have to bring a formal motion before a Master. If the plaintiff decides to do so, I order that the plaintiff book such a motion date no later than June 30, 2014.

[8] The parties agreed that the plaintiff could access the court documents for the following action: Catan Canada Inc. v. Columbus Capital Corp. (Kitchener, File No. C-1339-09). Counsel agreed that the parties would sign whatever consents were required to enable such access.

[9] Counsel indicated that there would be no problem in arranging a new date for the continued examinations of Leanne Duscio in the Mareva injunction motion pending before McEwen J.

IV. Genesis documents

[10] The plaintiff has requested the financial statements for the Genesis limited partnership. The Genesis defendants have consented; but the Garcia Defendants have refused to consent.

[11] If the plaintiff wishes to pursue the matter further, it may book a one-hour motion before me through a 9:30 appointment, with a copy of the proposed notice of motion to be filed with the request form.

[12] I do not know whether the plaintiff’s request is a reasonable one; I do not know whether the refusal by the Garcia Defendants is reasonable. I do know that if a formal motion is brought, the losing party should expect to risk paying full indemnity costs to the successful party. These sorts of production disputes should not be consuming court time. This Case Conference Memorandum gives the parties fair notice of how to approach formulating their reasonable expectations regarding costs if such a motion is brought.

V. Examinations of non-parties

[13] The plaintiff identified a number of Ontario resident and non-resident non-parties it wished to examine before trial. The plaintiff should book one date for such motions through a 9:30 appointment before me, and the plaintiff must attach copies of the proposed notices of motion to its request form. Since such motions usually turn on issues of relevance and the ability to otherwise secure the requested information – matters that in the ordinary course should be worked out amongst the parties – the losing party on any such motion should expect potential exposure to an elevated cost award.

[14] I am giving notice about possible awards of elevated costs on production/examination motions because such disputes should be resolved through the case management process. If a party or several parties refuses to participate constructively in case management on the Toronto Region Commercial List, I think it more than reasonable for such party/parties to expect significant adverse cost awards as the consequence of their failure to co-operate in seeing this dispute to a fair, timely and cost-effective determination on the merits.

[15] Counsel should schedule the next case conference for one of the last two weeks in September, 2014 through the Commercial List Office.

[16] In light of the number of production/discovery disputes which remain outstanding and the parties’ failure to begin the exchange of expert reports, as previously ordered, this case obviously will not go to trial in early 2015, as had been my expressed expectation.

(original signed by D. Brown J.)_____

D. M. Brown J.

Date: June 10, 2014