COURT FILE NO.: CV-14-10414-00CL
DATE: 20140214
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harry Bieberstein, Plaintiff
- v. -
Gabriel Kirchberger, Susanne Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying on business as G.K. York Management Service, Defendants
BEFORE: J. Thorburn J.
COUNSEL: Morris Manning, Q.C. and Frederick J. Shuh for the Plaintiff
Jonathan L. Rosenstein, for the Defendants
HEARD: February 12, 2014
ENDORSEMENT
Relief Sought
[1] The trial in this matter was scheduled to begin for ten days on February 4, 2014. An Application was brought at the outset of trial for an Order that he “is entitled to enforce debt Acknowledgments against the Defendants to the same extent as if he had obtained judgment against the Defendant Gabriel Kirchberger in the amount of the liabilities assumed in the Acknowledgements.” He also sought an Order directing Kirchberger to pay him the amounts set out in the Acknowledgments.
[2] The Application was dismissed on the terms set out in my reasons dated February 7, 2014.
[3] Upon dismissal of the Application, the Plaintiff advised that he was filing a Notice of Appeal and was therefore seeking an Order that the trial must or should be stayed pending Appeal.
[4] The Plaintiff takes the position that Rule 63.01(1) of the Ontario Rules of Civil Procedure requires that the action be stayed pending disposition of the Appeal. In the alternative, he argues that Rule 63.02 (1) of the Rules of Civil Procedure provides that it is just that the trial be stayed pending the outcome of the Appeal of my February 7, 2014 Order.
The First Issue: Whether the Trial Must be Stayed Pending the Appeal of the February 7, 2014 Order
[5] Rule 63.01(1) provides as follows:
The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.
[6] A motion was brought by the Defendants before Wilton-Siegel J. in November 2012. The Defendants brought a motion for partial summary judgement on the basis that the applicable limitation period in respect of certain Acknowledgments for the payment of money had expired. Wilton-Siegel J. decided that the limitation period in respect of those Acknowledgments is 30 years and that the limitation period had therefore not expired. He dismissed the Defendants’ motion for summary judgment for this reason.
[7] The Plaintiff on the subsequent Application, sought an Order that the decision of Wilton-Siegel J. clearly and definitively determined that issues of
a) whether the Berlin Hypo Bank was the holder of all of the Acknowledgments,
b) whether the Acknowledgments were properly assigned to Bieberstein, and
c) the balance owing on the debts for which Kirchberger is liable under the Acknowledgments.
and the Defendants were therefore precluded from raising these issues at trial.
[8] The Application was dismissed on the grounds that these issues were not directly addressed by Wilton-Siegel J., they were not determined with certainty, and/or these points were not essential to the determination made by Wilton-Siegel J. As such the Defendants were not precluded from addressing these issues at trial.
[9] That Order is not an order for the payment of money and Rule 63.01(1) is therefore not applicable. It is not therefore necessary to stay the trial pending appeal.
The Second Issue: Whether the Trial Ought to be Adjourned
[10] Rule 63.02 (1) of the Rules of Civil Procedure provides as follows:
An interlocutory or final order may be stayed on such terms as are just,
(a) by an order of the court whose decision is to be appealed;
(b) by an order of a judge of the court to which a motion for leave to appeal has been made or an appeal has been taken.
[11] In order to determine whether it would be just to stay the proceeding, it is necessary to review the history of this proceeding as set out below:
January 12, 2010: The Statement of Claim was issued.
January 28, 2011: The Plaintiff set the action down for trial.
March 2011: The Defendants advised that they intended to bring a motion for partial summary judgment.
April 27, 2012: Cumming J. scheduled the motion for partial summary judgment by the defendants for November 14, 2012. This was to be before the same judge scheduled to take the trial as the evidence on the motion would be relevant to the issues at trial if the motion were unsuccessful.
November 19 and 20, 2012: The Defendants’ Motion for Partial Summary Judgment was heard. Wilton-Siegel J. dismissed the motion with reasons to follow.
November 29, 2012: The Plaintiff sought to adjourn the trial. Wilton-Siegel J. granted the adjournment without reasons, and ordered the Plaintiff to file a formal Application to adjourn.
December 20, 2012: Wilton-Siegel J. issued reasons on the motion for partial summary judgment and adjourned the trial to the first available date being December 16, 2013.
November 25, 2012: The Plaintiff asked the Defendants to agree that all 28 issues he identified regarding the Acknowledgments were agreed. The Defendants did not agree with any of them.
December 9, 2013: The parties attended before Morawetz J. The Plaintiff advised that he sought to adjourn the trial date set for December 16, 2014 as the Plaintiff now required 2 ½ weeks for trial rather than the one week scheduled, on the basis that all 28 points relating to the Acknowledgment would be argued. At the Plaintiff’s request, Morawetz J. agreed to adjourn the trial to February 4, 2014 for a 10 day trial.
February 7, 2014: The Plaintiff brought an Application to enforce judgment on the 8 Acknowledgments. The Application was denied and the Plaintiff advised that he was appealing the decision and that the trial would need to be stayed pending appeal.
[12] If the Plaintiff is successful in Appealing the Order, they would not have to satisfy the court on a balance of probabilities that,
i. the Berlin Hypo Bank was the holder of all of the Acknowledgments,
ii. the Acknowledgments were properly assigned to Bieberstein, and
iii. the balance owing on the debts for which Kirchberger is liable under the Acknowledgments.
[13] No doubt the Plaintiff will need some additional trial time to address these three issues. However, these are three discreet issues and the Plaintiff advised that the time required for trial, assuming all issues are disputed, is 10 days.
[14] Even if one assumes the Plaintiff’s appeal is successful, all evidence upon which a court can decide the outcome will have been adduced and there need not therefore be a retrial of the case.
[15] Moreover, the parties agree that there is a proposed real estate transaction between one of the numbered company Defendants and the City of Brantford that cannot proceed until the litigation is resolved.
[16] Most importantly, it is clear from the chronology of the case that the following factors would lead to the conclusion that it is in the interests of justice that the trial proceed:
a) the action is now over 4 years old;
b) the Plaintiff indicated his readiness for trial by setting the action down for trial over three years ago;
c) this is the third postponement sought by the Plaintiff (the first was sought on November 30, 2012, the second in December 2013 before Morawetz J.);
d) these issues were not raised until the outset of trial knowing the action was set down for a 10 day trial; and
e) to await the outcome of an Appeal where the Notice of Appeal has just been prepared, would mean another lengthy delay of the trial.
[17] For these reasons, I find that the benefits of proceeding far outweigh the prejudicial effects and it is therefore in the interests of justice that the trial proceed notwithstanding the Plaintiff’s decision to appeal the Order.
[18] For the above reasons the motion is dismissed.
Thorburn J.
DATE: February 14, 2014