SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-0103-00 and CV-14-1168 and CV-14-1169-00
DATE: 2014 08 25

RE: PAUL JANZA, VLADO ZUPANEC and NAHANNI STEEL PRODCUTS INC. carrying on business as “JANCOX STAMPING”

v.

JOSEPH NICHOLSON, BRIM HOLDING CORP., BRIM ROOFING INC., BRIM SUPPLY INC. and BRIM IPCO INC.

AND

JOSEPH NICHOLSON, BRIM HOLDING CORP., BRIM IPCO INC., BRIM SUPPLY INC., and BRIM ROOFING INC.

v.

PAUL JANZA, VLADO ZUPANEC, SEBASTIJAN ZUPANEC, NAHANNI STEEL PRODUCTS INC. (d.b.a. JANCOX STAMPINGS), STEPHEN HORBATIUK, RICHARD MYERS, CORINNE MYERS (a.k.a. CORI PRATT), FACILITATOR XTREME CORP., JASON LAGADIN, ROCH BEAULIEU, BOBBI JO BEAULIEU, R. BEAULIEU ROOFING LTD., RVP ROOFING SYSTEMS INC.

AND

JOSEPH NICHOLSON, BRIM HOLDING CORP., BRIM IPCO INC., BRIM SUPPLY INC. and BRIM ROOFING INC.

v.

PAUL JANZA, VLADO ZUPANEC, SEBASTIJAN ZUPANEC, NAHANNI STEEL PRODUCTS INC. (d.b.a. JANCOX STAMPINGS), STEPHEN HORBATIUK, RICHARD MYERS, CORINNE MYERS (aka Cori Pratt), BOBBI JO BEAULIEU, R. BEAULIEU ROOFING LTD., RVP ROOFING SYSTEMS INC.

BEFORE: EMERY J

COUNSEL:
E.J. Battiston and Harold Rosenberg, for Janza, Zupanec, Nahanni Steel & RVP Roofing

Andrey Pinsky, for Nicholson and Brim

Tibor Sarai, for Horbatiuk

HEARD: August 11, 2014

RULING ON PRODUCTION ISSUES AND TERMS OF ADJOURNMENT BEFORE THE COURT

ON AUGUST 11, 2014

[1] Counsel for the parties in the three proceedings appeared before me on August 11, 2014 to address the motions scheduled for hearing that day pursuant to my Endorsement dated July 10, 2014. Under that Endorsement, the motions to be heard on August 11, 2014 were confined to all conflict motions in any of the three proceedings where a party was moving for an order to disqualify or remove the lawyer of record for any other party. That day was also reserved for submissions on the terms of adjournment for any status quo motion served to date.

[2] Mr. Pinsky requested an adjournment of all motions to disqualify other counsel he had brought on behalf of his clients Joseph Nicholson, BRIM Holding Corp., BRIM IPCO Inc., BRIM Supply Inc., and BRIM Roofing Inc. (collectively the “Nicholson Group”). The Nicholson Group are the plaintiffs in actions commenced under court file numbers CV014-1168 and CV-14-1169. The Nicholson Group are also named as Respondents in an application commenced under court file number CV-14-0103 by Paul Janza, Vlado Zupanec and Nahanni Steel Products Inc. doing business as “Jancox Stampings” (the “Janza Group”).

[3] In support of his request for an adjournment, Mr. Pinsky made submissions that Mr. Battiston and Mr. Rosenberg had not responded to an Notice of Examination he had served on them to appear and be cross-examined as the sources of information and belief stated in the affidavit of Sandra Belisamo. That affidavit had been filed by the Janza Group in response to Mr. Pinsky’s written argument that his client was entitled to production of documents in advance of cross-examinations.

[4] Despite the service of a Notice of Examination to examine certain witnesses on the conflict motions under Rule 39.03, counsel for the Nicholson Group was not permitted to examine those witnesses. Two cross-examinations on affiants had been scheduled or started since the last case management conference, but little progress was made on either of those examinations and they were left until the parties obtained further directions from me.

[5] For reasons endorsed on the record that day, I granted the request made by counsel for the Nicholson Group to adjourn the conflict motions. In those reasons, I indicated that once I released my decision on the advance production of documents issue before any examinations on those motions, counsel would have until October 17, 2014 to complete those examinations, including all cross-examinations. In my endorsement read out to counsel in court on August 11, 2014 I addressed the issues raised to streamline the examination process.

[6] In this Endorsement, I propose to make my ruling on the preliminary issue of whether the Nicholson Group is entitled to the production of documents in advance of examinations under Rule 39.03 and cross-examinations on affidavits (generally referred to as “cross-examinations”) even though pleadings are not closed in either of the two actions. I propose to make this ruling in the form of a direction under the authority I am given under Rule 37.15(1.2).

[7] Various parties have also brought motions for interlocutory relief of an injunctive nature against other parties to preserve rights, information or property pending trial. These motions have been referred until now as the “status quo” motions. Since I determined in the Endorsement dated July 10, 2014 that the status quo motions could not proceed before the issues on the conflict motions are determined, I indicated all status quo motions would have to be adjourned. I propose to deal with those terms of adjournment at the end of these reasons under the authority give to me by Section 101 of the Courts of Justice Act and Rule 40 of the (Ontario) Rules of Civil Procedure relating to interlocutory injunctions and mandatory orders.

(Full text continues exactly as in the judgment…)

Emery J

DATE: September 25, 2014