SUPERIOR COURT OF JUSTICE - ONTARIO

Parties

RE:
FABRIS IRON WORKS INC.

Plaintiff

-AND-

DANIELS HR CORPORATION

Defendant

BEFORE: F.L. Myers J.

COUNSEL:
A. Spiegel, for the plaintiff

M. Cohen, for the defendant

HEARD: November 21 and November 25, 2014

Endorsement

1This matter came before me in Civil Practice Court for scheduling of a summary judgment motion. It quickly became apparent that the parties were mired in a considerable degree of procedural disagreement. I could not grasp the issues and do fairness to the positions in the few minutes available so I adjourned the matter for three days to a case conference. In the interim, I invited counsel to provide me with the relevant pleadings which they did. I also referred the parties to Hryniak v Mauldin, 2014 SCC 7 and Bosworth v. Coleman, 2014 ONSC 6135 to focus counsel on the need for communication and cooperation in scheduling matters so as to promote the most efficient, affordable and proportionate outcome for all of parties.

2Reviewing the pleadings makes it clear that there is a disagreement between the parties as to whether the issues in this action are bound up with the issues raised in a separate action between them (or affiliates) under Court File No. CV-14-503398 (the “High Park Action”). One party says the issues are intertwined and the other disagrees. I make no determination today of course. However, it is obvious that for a court to make such a determination, the motion for judgment that is proposed in this case should be heard by the same judge on the same day as the motion for judgment that has already been scheduled by Archibald J. in the High Park Action for March 26, 2015. In that way, the judge hearing both matters will be in a position to hear both sides’ arguments and resolve the issue one way or the other.

3On November 25, 2014 counsel attended and were near agreement on all scheduling matters. The court appreciated their efforts as they were able to cut through several issues of concern fairly and in a manner that promoted the efficient hearing of both matters.

4Counsel for the defendant raised an overriding concern that the motions for judgment will involve a number of witnesses and examinations. He argues that the effort and cost being put into the motions might be most efficiently used by simply holding a trial or a summary trial rather than having an intervening motion day. As these matters are complicated procedurally and may involve the need for ongoing supervision to remain on track, I determined that I would case manage the motion process. By doing so, among other things, I can build-in a motion for directions after evidence has been exchanged (See Hryniak, supra, at para. 70). At the motion for directions the parties will be able to consider with the court whether an alternative hearing process would be most efficient once the evidence is better articulated and the issues are joined.

5Under the existing schedule for the motion for judgment implemented by Archibald J. in the High Park Action, the parties are to complete their cross-examinations by December 12, 2014. Counsel for the defendant has asked the plaintiff to produce accounting information to allow the defendant to assess and cross-examine effectively on the loss of profits component of that claim. Counsel of the plaintiff has agreed to produce tax returns for the past 5 years but has declined to produce the vast swath of documents sought by the defendants to back up all manner of financial calculations. The plaintiff will not succumb to a fishing expedition. However, one can also sympathize with the defendant’s counsel who is operating in the dark and asking for anything that can help illuminate the issues.

6There is no specific right to production in advance of cross-examination provided in the Rules of Civil Procedure. Once again however, cooperation among the parties who are both interested in early and cost effective hearings can help. Counsel agreed that the plaintiff will produce its tax returns forthwith (hopefully today). The defendant’s counsel will review the tax returns with their accounting expert and respond with a narrower list of document requests focusing on the real issues. If the parties cannot resolve the scope of production consensually, there will be a telephone case conference at 5:00 pm on December 11, 2014 at which the court will do so. In this way the parties can avoid inefficiently bifurcating the cross-examinations. The parties may deliver lists of documents sought or offered in advance of that case conference. No written submissions are required.

7In order to implement this cooperative document review and production process it is necessary to amend the schedule established by Archibald J. so that the cross-examinations can be deferred briefly to allow documents to be produced and reviewed before the examinations. Accordingly, the cross-examinations will take place on December 22 and 23, 2014 in the High Park Action summary judgment motion.

8The following schedule will apply to the motion for summary judgment in this case:

• plaintiff’s motion record to be served by January 8, 2015;

• defendant’s responding materials to be served by January 22, 2015;

• plaintiff’s reply, if any, to be served by January 29, 2015;

• cross-examinations to be held on February 11 and 12, 2015;

• undertakings to be fulfilled by March 6, 2015;

• refusals to be dealt with under Rule 34.12 or, if necessary, a case conference will be held to consider the most efficient manner to deal with refusals summarily;

• motion for directions to be heard as a case conference on March 2, 2015 at 4:00 p.m. at 361 University Avenue, Room 170;

• the parties will exchange factums simultaneously on March 23, 2015;

• the motion has been scheduled for March 26, 2015 with the motion in the High Park Action (subject to any directions on March 2, 2015 of course).

9Civil Practice Court is a new process in Toronto. Counsel and judges are looking to implement case management techniques in civil matters as part of the culture shift mandated by the Supreme Court of Canada in Hryniak. There will be some time required for best practices to emerge and for consensus to develop. In the interim, I want to thank counsel for their distinct efforts to discuss their disagreements so as to focus on the actual issues. With the issues fairly on the table, counsel and the court were able to accommodate the underlying concerns by building-in process steps that allow for the fair assessment of the issues in an efficient manner.

10As is my practice, I make the following general case management directions:

11I may be contacted by email to schedule a hearing. Counsel should have communicated in advance to discuss dates and procedural issues to accommodate the hearing being requested regardless of whether their clients oppose the matter being brought. Requests should include a proposed timetable and a minimal description of the matter in issue or relief sought without argument. Email communication should follow rule 1.09 and should generally be treated as if the content were being filed with the court. Although circumstances may call for some back-and-forth, all participants are cautioned to resist the temptation to be too familiar in emails.

12Subject to any specified exceptions, all documents to be delivered to me in this matter should be sent to the court as attachments to emails or on memory keys/sticks. The documents should be in searchable pdf format. Reference to case law should be by hyperlinks to .org or another online source if necessary. If counsel need assistance with format, resort may be had to http://www.ontariocourts.ca/scj/practice/practice-directions/edelivery-scj.

13If memory keys are being delivered to the court, they should not be filed with the registrar, but should be delivered to my attention in care of Judges’ Administration, Room 170, 361 University Avenue.

14I am only seized of the scheduling and pre-motion procedures. Accordingly, all documents for use on the main motions should be filed with the registrar in the ordinary course.

________________________________ F.L. Myers J.