Court File and Parties

CITATION: J. Jenkins & Son Landscaping v. SCS Consulting Group et al., 2015 ONSC 1922

COURT FILE NO.: CV-11-441425

DATE: 20150325

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J. Jenkins & Son Landscaping Contractors Limited, Plaintiff

AND:

SCS Consulting Group Ltd. and Blair Seeley, Defendants

BEFORE: F. L. Myers, J.

COUNSEL: Shane Murphy, for the Plaintiff

Ryan Hauk, for the Defendants

HEARD: March 20, 2015

Endorsement

[1] The plaintiff seeks an adjournment to allow it to move before a Master on refusals given at the examination of a non-party witness under rule 39.03. The plaintiff brought a motion before Himel J. seeking to move for refusals at the outset of this motion. Himel J. refused and also ordered that this motion was to proceed as booked. That is, while she did not purport to prevent me from adjourning, she declined to reschedule the main motion to give the plaintiff time to book a Master’s motion in the ordinary course. The inference is that she either expected the plaintiff to seek an urgent appointment with the Master so that rule 39.03 scheduling did not interfere with this motion (see Omega Digital, 1997 CarswellOnt 2903 at paragraph 21) or, she did not think much of the plaintiff’s proposed refusals motion.

[2] I have the discretion to adjourn to allow the plaintiff to move on refusals. I am not satisfied that doing so is appropriate for several reasons.

[3] First, the summary judgment motion was scheduled by Spence J. by order dated December 21, 2014 in Civil Practice Court. Under the Practice Advisory, all parties understand scheduled dates will not be adjourned absent exceptional circumstances. The parties filed a Case Information Form before Spence J. It plainly disclosed that Mr. DeGasperis’ evidence was not being adduced by the defendants. Yet the plaintiff represented to Spence J. in item B.2(11) of the Form that it was not proposing any rule 39.03 examinations. Had Spence J. been informed of the possibility of a hostile rule 39.03 examination being required, the motion may not have been booked in the 100 day window. Case management forms and scheduling orders matter. See UHA Research Society v. Canada, 2014 FCA 134.

[4] When the plaintiff decided to serve its summons, it did not move to amend the schedule as ordered. Yet it proposed and held a rule 39.03 examination after the date for its evidence to be filed. Rule 39.03 examinations are treated as part of a party’s case in chief. They must be done before cross-examinations. The plaintiff only issued the summons three days before its evidence deadline and it was returnable only after.

[5] Civil Practice Court and the Practice Advisory are a result of Hryniak v. Mauldin, 2014 SCC 7 and, in particular, the motion culture in Toronto that is contrary to the goals of efficiency, affordability, and proportionality in civil justice. It is not business as usual. Cases need to be resolved efficiently - not just quickly - but with less process and procedure as long as fairness and justice remain unalterable standards.

[6] Is it fair to deny the plaintiff another crack at Mr. DeGasperis? In my view it is. The document request delivered with the summons exceeded the production obligations on a party. The plaintiff gave no thought to proportionality or even the Sedona Principles in demanding electronic document production from a non-party/competitor. (See: Coburn v. Berber, 2010 CarswellOnt 3877 at paragraph 179.)

[7] Moreover, Mr. DeGasperis attended and denied the plaintiff’s allegation that the defendants had disclosed the plaintiff’s information to DeGasperis. (See: questions 194 to 196).

[8] The plaintiff makes allegations of misconduct in its statement of claim. Yet it has no evidence other than speculation to back-up its assertion that ConDrain received confidential information from the defendants. It has no probative evidence to lead to an inference that ConDrain was given the plaintiff’s confidential information by the defendants. Rather, it has suspicion and it wants to send its lawyers into ConDrain to rummage through its files hoping to run into a smoking gun. Absent evidence that Mr. DeGasperis is likely to have relevant evidence, especially in face of his and the defendants’ clear denials, there is no basis for summons to even issue (or be continued) at this stage. (See: Coburn, supra, at paragraphs 144 to 146). The plaintiff is on a pure fishing expedition in my view. That is not a valid basis to form “exceptional circumstances” under the Practice Advisory. Nor is it fair or just basis to exercise my residual discretion to adjourn.

[9] The “culture shift” must mean that cases are to be decided without longshot procedural steps. Digging through third-party electronic and hard files hoping to find a document with a semblance of relevancy is not an efficient, affordable, or proportionate step. The defendants are entitled to have their motion heard and it would be unfair to them to adjourn for the grounds argued by the plaintiff.

F. L. Myers, J.

Date: March 25, 2015