CITATION: Lo, Primeau and Wong v. CIBC, 2015 ONSC 1206

COURT FILE NO.: CV-13-481837, CV-13-483003 and CV-13-481840

DATE: 20150224

COURT FILE NO.: CV-13-481837

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

LO v. CIBC

COURT FILE NO.: CV-13-483003

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

PRIMEAU v. CIBC

COURT FILE NO.: CV-13-481840

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

WONG v. CIBC

BEFORE: F.L. Myers J.

COUNSEL: Jason Beitchman for the plaintiff in each action Elisha Jamieson-Davies, for CIBC

HEARD: February 23, 2015

ENDORSEMENT conference memo #1

[1] This matter came before me originally at Civil Practice Court for scheduling of a summary judgment motion in each of three actions. A partial schedule was implemented and I required counsel to attend a Case Conference to discuss scheduling issues for the three matters.

[2] All three cases involve allegations of wrongful dismissal. The defence advanced in each case is the same – that the plaintiff was required to clock-in and clock-out and each allegedly had others either sign them in earlier than they actually had arrived or sign them out later than they actually had left.

[3] CIBC says that the cases are the same. The plaintiffs worked in the same area and had the same manager. It seeks to consolidate all three lawsuits so as to limit the plaintiffs to one examination for discovery rather than three. CIBC says that in every action for wrongful dismissal, plaintiffs can point to a number of people with relevant evidence. There is still only one examination for discovery and evidence from others is obtained by way of undertaking. That is the efficient, affordable, and proportional way for a lawsuit to move forward.

[4] The plaintiffs are bringing motions for summary judgment. Two motions have been delivered; the third will come this week. The defendant fears that the plaintiffs are using the motions to get around its effort to consolidate the lawsuits. It says that there are many individualized credibility issues that make summary judgment inappropriate in these cases including, for example, claims of discrimination, condonation, and bad faith investigation. CIBC fears that the plaintiffs are just going to examine a number of witnesses in a case that is not a proper one for summary judgment.

[5] The last motion record by the plaintiffs will be delivered before the close of business on February 27, 2015. The defendant’s responding material will be delivered by March 27, 2015. By the end of the day on April 6, 2015, the plaintiffs’ counsel will advise the defendant’s counsel of all of the cross-examinations and summonses that the plaintiffs propose to deliver for the motions. The parties will then attend a Case Conference with me during the week of April 13 or 20, 2015. I give notice under Rule 50.13 that at that case conference I will schedule the motions or discoveries to move the action forward. I may therefore be resolving the issue of consolidation/hearing together and/or the examinations allowed on the motions for judgment. Counsel should be prepared with whatever arguments they may wish to make.

[6] I observe that the motions practice in these actions may be obscuring the real issue. The plaintiffs say that they each worked for the bank for up to a decade and did not have the same manager throughout. One plaintiff was only assigned to the “common” manager two weeks prior to being dismissed. The defendant says that all the actions are the same but then points to credibility and differing issues in each case that it says makes these cases poor fits for summary judgment. Perhaps both sides might be aided to focus on moving the lawsuits forward most efficiently if they simply addressed the underlying dispute of whether one or more specific issues might require some additional discovery.

[7] I am generally in favour of summary judgment being used if it can help resolve a case more efficiently and affordably, even if just to access the informal case management features that arise on the dismissal of a motion for summary judgment as required by the Supreme Court of Canada in Hryniak v Mauldin, 2104 SCC 7. But where motions are brought in what might be questionable cases to increase discovery that is being resisted by the party opposite, then is not the most efficient outcome a discussion on the real discovery issues?

[8] If the plaintiffs had three different lawyers, there would be three discoveries. The deemed undertaking would inhibit some sharing of information and costs would be tripled.

[9] By contrast, running three full, overlapping, repetitive discoveries where the plaintiffs are represented by the same counsel would be less than optimal as well. However, fighting motions for consolidating and cross-motions for summary judgment in a case with a number of factual issues is also not an optimal response viewed in terms of efficiency and affordability. The plaintiffs’ counsel will sharpen his pencil and propose a reasonable examination schedule that does not propose duplication or overlap and includes the minimum number of witnesses identified by issues where possible. If both sides are reasonable and focus on the merits and efficiency, I suspect that they may be able to resolve or defer the motions until agreed upon discoveries have been held on consent. If the parties cannot agree, I will hear all arguments and decide the process issues at the next Case Conference.

[10] My Assistant may be contacted by email to schedule the next Case Conference. Counsel should have communicated in advance to agree on dates and process. 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.

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. No copies of case law should be provided to the court. Reference to case law should be by hyperlinks to 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/

[11] If hard copies or 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.

________________________________ F.L. Myers J.

Date: February 24, 2015