CITATION: Magnotta Winery et al. v. LCBO et al. 2015 ONSC 3973

COURT FILE NO.: CV-08-361217 DATE: 20150618

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

MAGNOTTA WINERY CORPORATION, MAGNOTTA VINTNERS LTD., MAGNOTTA VINEYARDS LTD., MAGNOTTA WINES LTD., MAGNOTTA WINERY ESTATES LTD. and MAGNOTTA CELLARS CORPORATION

Plaintiffs

-AND-

THE ALCOHOL AND GAMING COMMISSION OF ONTARIO, THE LIQUOR CONTROL BOARD OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

COURT FILE NO.: CV-08-357361

B E T W E E N:

MAGNOTTA WINERY CORPORATION, MAGNOTTA VINTNERS LTD., MAGNOTTA VINEYARDS LTD., MAGNOTTA WINES LTD., MAGNOTTA WINERY ESTATES LTD. and MAGNOTTA CELLARS CORPORATION

Plaintiffs

-AND-

THE ALCOHOL AND GAMING COMMISSION OF ONTARIO, and THE LIQUOR CONTROL BOARD OF ONTARIO

Defendants

BEFORE: F.L. Myers J.

COUNSEL: Ian Roher and Jennifer Pocock for the plaintiffs Jill Dougherty for the defendant LCBO Edmund Huang for the defendants AGCO and HMQ

HEARD: June 18, 2015

CASE CONFERENCE ENDORSEMENT

[1] These actions were referred to me for a Case Conference by Himel J. sitting in Civil Practice Court. She did not appoint me as Case Management Judge under Rule 77. Rather, as I understand it, Himel J. was of the view that the defendants’ outstanding motions to strike and for summary judgment required light touch case management as contemplated by the Toronto Region Pilot Practice Advisory – Civil Practice Court (Regional – October 14, 2014, in effect until July 1, 2015).

[2] Himel J. adjourned the dates set for the defendants’ motions in order to allow the parties to deal with issues concerning bringing of a cross-motion for summary judgment by the plaintiffs and the bringing of a motion to quash summonses to witness in aid of the motion that the plaintiffs have served and possibly others that the plaintiffs propose to serve. In addition, the defendant LCBO has been granted leave to appeal from the refusal of a sealing order that they sought regarding certain of the documents on which they rely for their motions. To make matters more complicated, the plaintiffs’ desire to bring a cross-motion and to utilize summonses to witness under Rule 39.03 is of fairly recent vintage although this motion has been ripening on the vine for approximately 10 months. Moreover, the plaintiffs have yet to deliver their proposed notice of cross-motion for judgment or to advise the defendants of the other witnesses whom they may propose to examine under summons.

[3] Mr. Roher helpfully organized the issues into 8 agenda items on which I heard submissions this morning. In my view, while the matter is not urgent, the parties are entitled to efficient scheduling as best as possible. That is, I will assist them move the matters forward resolutely and without logjams. At this time, some things have to happen before the parties and the court are in a position to decide on the efficient way to proceed with other aspects of the process. Therefore, I direct under Rule 1.05 and para. 70 of Hryniak v. Mauldin, 7 SCC 1 and pursuant to Rule 50.13(5)(d) that:

a. LCBO shall deliver its sworn affidavit of documents by July 2, 2015;

b. The plaintiffs will deliver their proposed notice of cross-motion for summary judgment by July 10, 2015. No new affidavits will be delivered by the plaintiffs for the cross-motion subject to their right to deliver proper reply evidence in the event that the defendants respond with evidence on the cross-motion;

c. In the event that production of documents issues cannot be agreed among counsel, the plaintiffs will deliver any motion that they wish to bring for a further and better list or affidavit of documents by July 10, 2015;

d. The plaintiffs will advise the defendants by July 10, 2015 of all of the witnesses whom the plaintiffs propose to examine under summons in response to the defendants’ motions to strike and for judgment;

e. The defendants’ motions to quash the plaintiffs’ summonses to witness will be scheduled as follows:

i. Defendants shall deliver their motions record(s) by July 31, 2015;

ii. Plaintiffs shall deliver their responding evidence by August 21, 2015;

iii. Cross-examinations, if any, to be conducted by September 21, 2015;

iv. Undertakings shall be fully answered within two weeks of the examination of the witness who gives each undertaking;

v. Counsel are advised under Rule 50.13(6) that I will resolve any refusals that arise on cross-examinations very summarily;

vi. The cross-examinations are to be conducted as if each witness and counsel consent under Rule 34.12(2). That is, with the sole exception of questions that are objected to on the basis of solicitor and client privilege, all questions are to be answered subject to ruling under Rule 34.12(3). My exclusion of settlement privilege from the exception to the application of Rule 34.12 is deliberate.

vii. In light of Crown counsel’s unavailability because of trial commitments in October, the hearing of the motion to quash has been booked for November 10, 2015 for three hours.

f. This Case Conference will continue on July 23, 2015 at 9:00 a.m. by conference call. My Assistant will circulate a call-in number for that call. At that time the defendants should be prepared to advise if they propose to deliver evidence by affidavit or under Rule 39.03 responding to the plaintiffs’ proposed cross-motion. If the defendants wish to do so, then they should be prepared to identify the affiants and witnesses proposed and to discuss the timing for delivery of any such evidence. During that call, there will be consideration of whether the plaintiffs’ proposed cross-motion should proceed and be heard together with or separately from the defendants’ outstanding motions. In addition, the call will deal with scheduling of the plaintiffs’ motion for a further and better list or affidavit of documents if one is brought. Any other issues that are on the agenda that can be dealt with at that time will be discussed.

[4] I am currently unable to schedule cross-examinations in the defendants’ main motions as the witnesses are not yet identified until (a) their names are disclosed (first by the plaintiffs and then by the defendants once they see the proposed notice of cross-motion), and (b) motions to quash are resolved. That is several more months away. Moreover, the defendants’ appeal of the denial of a sealing order may be heard in the fall. The timing of the appeal is not yet certain. Neither can it be known when the Divisional Court may decide that appeal. There is therefore an issue of whether the main motions can proceed under the interim sealing order made by Lederer J. when he granted leave to appeal. That issue may become moot if the main motions are not yet ready for hearing by the time that the Divisional Court decides the appeal. Accordingly, there is no need to resolve now the issue of whether or how to proceed in the event that the appeal is not yet resolved by the time the main motions are ready for hearing.

[5] The motions that I am asked to schedule are currently bound up in a complex procedural morass. It is apparent that the motions to quash and the proposed cross-motion threaten to delay significantly the hearing of the defendants’ outstanding motions. As I discussed with counsel, parties who wish an early hearing are ill-advised to insist on the strict enforcement of all of their procedural rights. This plays right into the hands of someone who may be less concerned about an early hearing. In considering procedural rights, “I can” does not mean “I should” especially where the schedule is important to a party.

[6] The court remains available to the parties to assist in resolving logjams if they arise. I may be contacted in accordance with Rule 1.09 by email to my Assistant. Any contact should be made only after communicating with all counsel and then all that should be proposed is an acceptable time for a conference call to discuss whatever the issue may be.

F.L. Myers J.

Date: June 18, 2015