Court File and Parties

COURT FILE NO.: 10-CV-414334

Heard: April 14, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Siddiqsons Tin Plate Ltd. v. Adler Steel Limited

BEFORE: Master Joan Haberman

COUNSEL: Chalmers, W.A. for the moving party Belmont, B. for the responding party

REASONS

(plaintiff’s motion regarding evidentiary issues)

Master Haberman:

[1] This 2010 action first came before me at a Status Hearing in December 2013. This motion arises in respect to the plaintiff’s “show cause” hearing, which has been scheduled and adjourned for a variety of reasons. There is currently no date scheduled as these evidentiary issues must be resolved first.

BACKSTORY

[2] This action was commenced by Statement of Claim, issued on November 15, 2010. The Statement of Defence and Counterclaim followed on May 19, 2011 and a Reply and Defence to Counterclaim was delivered on July 11, 2011.

[3] Adler then moved for security for costs, and after negotiations surrounding quantum fell through, the matter was heard on December 13, 2011 and the plaintiff was ordered to post security for costs.

[4] The court record is silent from that point until issuance of a Status Notice by the court on May 21, 2013. The plaintiff requested a Status Hearing, one of the options available to address a Rule 48.14 Status Notice, and one was convened before me for December 5, 2013. The parties were notified of the date on August 26, 2013.

[5] For the most part, Status Hearing Court had been a straightforward event in the years leading up to this case. The majority of cases were resolved in writing, with consent timetable orders submitted by counsel in advance of the hearing date. A few counsel arrived at the hearing with a consent timetable order, and only a handful needed some assistance from the court to sort out issues. For the first few years of this system, there were very few show cause hearings convened as few were requested.

[6] In the interim, a practice evolved in Status Hearing Court for dealing with cases when a show cause hearing was requested by the defendant. After completing the regular list, if any matters were opposed and a show cause hearing was sought either at or in advance of the Status Hearing, initial inquiries would be made at the initial attendance to assess if this was a serious request or if a timetable could be reached on consent. More often than not, these issues were resolved, after discussion with counsel, at the first attendance.

[7] If, after the initial discussion, it was a determined that a show cause hearing was required, the matter would be placed at the end of an upcoming Status Hearing Court, before the same master who had begun the process. This practice of putting the matter over to be heard was eventually endorsed by the Court of Appeal. This practice worked well, as it gave both parties an opportunity to put their materials together well in advance of the show cause hearing so all parties, as well as the court, knew in advance what was in issue.

[8] At that time, each master was assigned to sit in Status Hearing Court once per month or every second month. For the most part, finding time for opposed show cause hearings was not a problem as there were, initially, very few of them so they could be accommodated.

[9] At a certain point, some uncertainty in the law in this area was perceived. This led to more requests for plaintiffs to show cause and an increase in the number of hearings that had to be scheduled. The balance eventually tipped and the number of show cause hearings for several masters began to exceed the limited slots available for them. At the same time, the masters were actively discouraged from using Long Motions dates to schedule these events as those dates were also in short supply. As a result, some of these cases sat for a time until new Status Hearing Courts dates were assigned. The masters were therefore not always able to hear these contested matters as quickly as we would have preferred.

[10] In this case, each party filed some materials in advance of the initial attendance at Status Hearing Court, mostly in the form of correspondence and excerpts of transcripts. Neither filed a factum or brief of authorities. Preliminary discussions confirmed that this matter could not be resolved without a hearing and there was enough material filed to indicate that a show cause hearing would not be inappropriate. The standard practice of finding a new date for a full hearing was therefore followed.

[11] Accordingly, my endorsement following the December 2013 attendance was as follows:

Mr. Belmont (Adler counsel) has asked the plaintiff to show cause. As I have no available show cause dates in any of my upcoming Status Hearing Courts, we will not be able to schedule this matter until I get my dates for July(2014) or later. I will be in touch. If the matter is resolved in the interim, counsel are to advise me ASAP.

[12] Over the course of the next few months, I understand that my assistant was in touch with both counsel from time to time, and dates were offered as I was assigned to sit in upcoming Status Hearing Courts. Unfortunately, one counsel or the other was not available on any of the dates offered. This was followed by a dormant period of about 4 months, when my assistant, who I share with another master, was unexpectedly off on a leave of several months. No one was hired or transferred in to replace him and my work was offloaded onto another assistant who was already working with 2-3 other masters.

[13] No instructions had been left by my assistant as his departure was sudden. It seems no one was aware of how he managed the “bring forward” system for my on-going matters, so no one kept track of them during his absence. As a result, when new Status Hearing dates opened up (there were approximately 4 during that time and each ended up having a show cause hearing scheduled), there was no one to make the connection that counsel in this case were among those to whom the new dates should be offered. As well, neither counsel followed up with me during that time to inquire where things stood. Those counsel that did follow up were given dates.

[14] When my assistant returned he turned his attention to this matter again and finally, in late September 2014, both counsel advised that they were available for a hearing at my Status Hearing Court of January 21, 2015. My endorsement of September 30, 2014 indicated that the matter would proceed that day at 11:30 (after completion of my regular Status Hearing List), for 1.5 hours. This is the amount of hearing time I had allocated to previous show cause hearings and I was given no reason to doubt that it would be adequate for this hearing.

[15] I added the following to my scheduling endorsement:

I am to be advised ASAP if that date is in any way jeopardized.

[16] This portion of my order, coupled with the length of time it had taken to schedule this event ought to have made it clear to both sides that it was critical that both did everything in their power to ensure the hearing proceeded as scheduled. This is, after all, a hearing about alleged delay.

[17] My concern about getting this matter on was exacerbated by Rule changes. In view of rule amendments, effective January 2015, the Rule 48.14 deadline was extended and Rule 48.15 was abolished, so Status Hearing Court ceased in April of this year, at least for the time being. In view of the lengthier deadlines imposed by the new version of the Rule, it will be some time before any matter fail to meet the new deadline, so there is no need for this court at the present time. As and when the new deadlines are reached, these courts will resume or some other mechanism will presumably be introduced.

[18] In the months that followed, I heard nothing from either party, so it appeared this matter was on track to proceed as scheduled. Then, on January 15, 2015, Plaintiff’s counsel wrote to my assistant to advise that Adler had served his client’s affidavit (the Lal affidavit) that day and for the first time, he adduced evidence of prejudice. Counsel asked that the affidavit be disregarded or that the show cause be adjourned, so that the plaintiff could review it, deliver a responding affidavit and, if necessary, conduct cross-examinations. Counsel indicated he was available from 8:30 – 3:00 the following day, presumably to discuss the issue, although such a request was not actually made.

[19] What plaintiff’s counsel neglected to mention in his e-mail was that he had only served his show cause record on January 14, 2015 - the day before the Lal affidavit was served.

[20] In that plaintiff’s counsel failed to advise me as to the sequence in which the materials were filed, I was not aware that he had waited until only one week (not even 7 clear days) before the scheduled hearing date to serve his materials.

[21] I was presiding in court on the day this news broke and scheduled to be in court daily up until this hearing. Though I am usually at my desk by 7:30 on court days, I use that time to read for court. I was therefore unable to convene a case conference to deal with this as my time was already committed. I was also unaware of when the plaintiff’s record had been delivered, so assumed the matter would be a straightforward one, involving an adjournment caused by a tardy defendant. Had I been made aware at the outset as to when the plaintiff’s materials had been delivered, I would have made time to talk with counsel before the hearing.

[22] I eventually had a moment to quickly scan the quantity of materials that had been filed for the hearing as a result of comments by my assistant, with whom briefs had been filed, and I was surprised by the volume. Based on that, I concluded that more than 1.5 hours would be needed to argue this matter, particularly with the evidentiary issue now raised by the plaintiff. I therefore instructed my assistant to advise counsel that we would use the January 21 date to deal with evidentiary issues and the hearing would take place on April 14, 2015. At that point, I was still not aware of when the plaintiff had served their materials. As I assumed the plaintiff had done nothing to contribute to this problem, “dealing with the evidentiary issues” in my mind was going to involve a discussion of whether or not the defendant could file their responding record so late in the day and, if so, the amount of time the plaintiff would need to catch up.

[23] The message was conveyed by my assistant on January 16, 2015, before I had an opportunity to review the materials in any depth and before I was aware of when the plaintiff had served their materials. It was only as I was reviewing the materials in preparation for the January 21 attendance that I discovered that the plaintiff’s materials had been delivered only one day before the Lal affidavit.

[24] By this point, I had already indicated that the show cause hearing on its merits would be adjourned to April 2015, as the amount of materials filed suggested that more time than what had been scheduled was going to be required. That was the sole basis for my having adjourned the matter. As a result, the plaintiff’s request for an adjournment was moot – I had already made my determination based on the amount of time that had been allotted.

[25] In view of when the plaintiff had delivered their record, I could not see on what basis they could seek to ask the court to exclude the Lal affidavit, one of the options they put forward. The focus of my deliberations on January 21, 2015 was therefore on whether or not the plaintiff should be permitted to file Reply materials and cross-examine Lal.

[26] Court was convened on January 21 and I immediately made it clear that I found it odd that the plaintiff had written to take issue with Adler having only served their evidence on the 15th, when theirs had been served the day before, odder still that counsel had neglected to mention, when he wrote to the court, when the plaintiff’s materials had been delivered.

[27] This matter had been on a back-burner since December 2013, yet the plaintiff, who bore the onus on a show cause hearing, had waited until only a week before a hearing that had been scheduled in September 2014 to serve their materials for a January 2015 hearing date. I began the hearing by pointing out that the plaintiff bore the onus. so obviously they had to lead off with their materials. Waiting until less than 7 clear days to deliver those materials was not reasonable and was the cause of the current problem.

[28] I also made it clear at the outset that the late delivery of the plaintiff’s record jeopardized this hearing date and was responsible for the need to adjourn. I noted that, had the parties exchanged materials earlier, they would have realised earlier that the hearing could not possibly be completed in 1.5 hours and, presumably, one or the other would have followed the request in my previous order to notify me that this date was in jeopardy. Had they done that earlier, I may have been able to clear the decks on the scheduled date to make enough time available to conduct the hearing for longer than the scheduled time.

[29] As 1.5 hours had been scheduled for the January 21, 2015 attendance, there was time available for comments and submissions from both counsel. It was open to both to raise issues if they wished to do so, assuming they could be dealt with within that time frame. Mr. Belmont, for Adler, did so. He was not happy about the matter being adjourned and he explained why. My response was that I had no choice in view of the quantity of materials (a three-volume record from the plaintiff) that had been filed and the amount of time that had been allocated for this hearing – I did not want to start it if I was unable to complete it in the allotted time and I had no further time for the matter that day, other than what had been scheduled.

[30] Mr. Chalmers also had an opportunity to address issues and he did so. He challenged my initial premise, noting that, as a result of his client’s counter claim, his client did not bear the onus. Rather, in his submission, the parties shared that onus. A discussion ensued thereafter about the fact that neither Adler nor the court was aware he planned to make this argument, as he had yet to deliver a factum or brief of authorities, although this was the day the hearing had been scheduled to proceed. This position also came as a surprise, in view of the fact that it was the defendant who had initially asked for the show cause, not the plaintiff/defendant by counterclaim, nor had the plaintiff indicated at any time that they, too, would be seeking to have the defendant/plaintiff by counterclaim show cause.

[31] Mr. Chalmers claimed he had been planning to deliver his factum but had decided against it when I moved the hearing date to April. The adjournment of the hearing date was not conveyed until January 16, 2015. That was a Friday, and the hearing was to have taken place the following Wednesday. It therefore appears that Mr. Chalmers had planned on leaving delivery of his factum to later that day or the following week, to a day or two before the scheduled hearing, though he planned to raise a novel issue which the defendant would likely have wanted an opportunity to address. Thus, even if I had not adjourned the January 21 hearing date as a result of the quantity of materials filed, this unusual strategy would likely have led to an adjournment in any event. This court does not conduct trials or hearings by ambush.

[32] Mr. Chalmers appeared to have nothing further to add. While he clearly did not appear to share my view, he ended his submissions. He is a counsel who has appeared before me on several occasions before and I have never considered him to be a counsel who simply backs down. At that time I was of the view that if he had more to say, he would certainly have said it. I remain of that view.

[33] It was clear to both parties when I left the courtroom that the Lal affidavit would be admitted into evidence. It was also clear that the hearing had been adjourned only because of the quantity of materials that had been filed. But for that, we would have proceeded with the hearing that day, as scheduled, and the Lal affidavit would have been included. That would have meant no cross-examination of Lal and no further materials being filed by the plaintiff. In that the late filing of the plaintiff’s materials led to the adjournment, I saw no reason for the plaintiff to benefit from their delay in delivery of materials by allowing them to take steps that would otherwise not have been available to them. I heard nothing from their counsel at that time to convince me otherwise.

[34] I retired to chambers and wrote the following endorsement:

This matter is adjourned for 3 hours to April 14, 2015. It is unfortunate that the plaintiff waited until January 14, 2015 to serve their 3-volume record, then complained about receiving the defendant’s materials(all of them) the following day – the plaintiff has yet to deliver their factum and brief of authorities for this significant event. Had materials been exchanged earlier, counsel would have been able to determine that the time set aside for this matter was not adequate and arrangements could have been made for me to have made more time available today. The costs of today are therefore deferred to the next attendance. This includes costs thrown away for preparation as well as 15 minutes spent in court.

On the basis of the foregoing, it is also imperative that I see Mr. Chalmer’s position with respect to the law before the hearing. In view of the nature of the event, I would have thought that he would have realized a factum and brief of authorities were essential elements for the court’s deliberations, to be reviewed in advance if a decision from the Bench was expected. Both shall be served and filed by January 20, 2015- these materials are to be filed directly with Stan Chan. No further evidence shall be filed by the plaintiff or defence, but I do expect to see the law Mr. Chalmers relies on with respect to his comments today about both parties bearing the onus in view of the counterclaim. If this is something he plans to raise as a legal argument, all the more reason for him to have delivered these materials well in advance.

[35] This was faxed it out later that afternoon.

[36] While the details of what was discussed at the hearing involving the “evidentiary issue” are not set out in the endorsement, I had articulated my views during the course of our time together on January 21, along with the basis for those views. Counsel had an opportunity to and did respond. Because I was not aware of the plaintiff’s role in the late delivery of the Lal affidavit, using the date scheduled to discuss “the evidentiary issues” meant, to me, whether or not the Lal affidavit would be admitted into evidence and, if so, on what basis. The scope of that hearing expanded later, after I had reviewed the plaintiff’s materials and discovered that they had been delivered late. To the extent that there was a misunderstanding, it was the result of how the plaintiff initially presented their concerns to me – I was not told that they had only delivered their materials a day earlier when they wrote to take issue with the timing of delivery of the Lal affidavit. I was not aware that they were the catalyst for what followed.

[37] I made it clear during and after the hearing in my endorsement that the matter was being adjourned, not because of the plaintiff’s request but because an inadequate amount of time had been booked for the motion. That was a problem triggered by the plaintiff’s late in the day delivery of their show cause materials. Had they served and filed earlier, we would have been alerted to the problem earlier and may have been able to resolve it by finding additional time on the date scheduled.

[38] On January 23, 2015, Mr. Chalmer’s wrote to me directly, though he did not have Mr. Belmont’s consent nor leave of the court to raise further issues in this manner. I was not in chambers on the 23rd so I did not see the letter until the 26th.

[39] The salient parts of this letter are as follows:

Upon return to the office after our attendance before you on January 21, 2015 I was able to communicate with a representative of my client and to take instructions regarding the directions you gave in Court. I received instruction to cross-examine Mr. Vinay Lal on his affidavit served on January 15, 2015. Accordingly, at 1:10 pm on January 21st, I sent the enclosed e-mail to Mr. Belmont in which I advise him of my intention to cross-examine and I suggested a date for examination.

At 1:49 pm on January 21 I received your endorsement (see enclosed email notification of delivered facsimile), in which you state no further evidence is to be filed by either the Plaintiff or the Defendant. I do not believe the question of further evidence was raised or addressed in Court on January 21.

My client would like to exercise its right to cross-examine Mr. Lal…..I send this letter in the event that your decision regarding no further evidence may be impacted by my client’s intention to cross-examine, a matter not addressed prior to the release of our endorsement.

[40] The “question of further evidence” was certainly on the table, as Mr. Chalmers had raised it in his initial letter to me. It was therefore up to him to address it at the hearing. He did not. Apparently, it also appears that Mr. Chalmers did not have instructions by January 21, 2015, to conduct this cross-examination. Those were only obtained after he got back to his office after the hearing. As a result, though he alluded to the fact that he may want to cross examine Lal in his e-mail of January 15, 2015, he also failed to raise the issue at that hearing, presumably as he did not yet have instructions to pursue this course of action. As he did not raise it, I did not deal with it directly in my January 21 endorsement, though the tenor of what I did write ought to have conveyed that I was troubled by problems caused by late delivery of the plaintiff’s materials.

[41] I had made it clear both before and during the hearing that the adjournment was being granted only because insufficient time had been booked for it. In view of the fact that the plaintiff delivered a 3-volume record only one week before a hearing that had been scheduled several months earlier, the need for additional time only became apparent late in the day. In his e-mail of January 20, 2015, my assistant advised counsel that the Master has seen enough to adjourn because this matter needs far more than the 1.5 hours booked.

[42] In view of the above and my comments in court, it is difficult to understand why Mr. Chalmers believed that I would be amenable to granting his requests, after he/his clients had caused these problems but had presented the issue to the court as one caused by Adler. As I have never received a satisfactory explanation for the delayed delivery of the show cause record, as well as the non-delivery of the factum and brief of authorities up to that point, I am left to infer that this was a strategic move on the part of the plaintiff.

[43] The fact that Mr. Chalmers took it upon himself to write to me with neither consent nor leave led to Mr. Belmont doing likewise. The plaintiff’s timing for delivery of their show cause record led to a stream of e-mails to my assistant, for my review, when I had virtually no time to deal with this matter. Our courts are frequent and our lists are heavy. When correspondence comes in from counsel, we are dealing with it on the fly, on a break from court, or late in the day. Counsel were therefore told by my assistant to read and abide by Rule 1.09 and to stop writing to me.

[44] I responded to Mr. Chalmers’ letter of January 23, 2015 by endorsement when I saw it on January 26, 2015, the relevant paragraph of which read as follows:

2. This matter was initially before me on December 5, 2013-more than a year ago- so there was plenty of time for the plaintiff to serve and file their materials;

3. The fact that the plaintiff waited until so late in the day to serve their materials led to the adjournment as the time booked turned out to be inadequate;

4. in the circumstances, I see no basis to deviate from my “no further evidence” order. This hearing will proceeds as now scheduled, for only the amount of time scheduled, on the basis of the materials filed;

5. cross-examination in not an automatic right in any event. The materials were served on January 14, 2015 and the plaintiff waited until more than a week to raise the issue, simply assuming it was a given. It is not…..

[45] The plaintiff appealed both my Rulings of January 21 and 26, 2015 and by order of Spence J., dated March 17, 2015, the matter was returned to me as follows:

The show cause hearing that is now on course is respect of this matter is a matter for the Master and the exercise of the jurisdiction of the Master including the discretion of the Master. Accordingly, the matters of the hearing of the evidentiary issue and the other matters pertaining to this show cause hearing are to be heard by a Master. Based on the material before me, I would not order that the matters should be heard by a different Master but I do not make any order one way or the other in that regard.

THE CURRENT MOTION and the EVIDENCE

[46] This brings us to the motion before this court at this time.

[47] The April 14, 2015 date that had been scheduled as the new hearing date on January 21, 2015, was used, instead, to deal with the “evidentiary issues”, as per the order of Spence J. Counsel were advised that is what would be done - as we all had the date scheduled, it made sense to use it to keep this matter moving forward.

[48] On April 10, 2015, after I had received and had had an opportunity to review Spence J’s Reasons, my assistant wrote to both counsel to make it clear that the rehearing would take place on the April, 14, the datewe had hoped to use for the merits. There was therefore no need to debate or discuss whether there would be a rehearing or when it would take place. The fact that the rehearing was required had already been determined by Spence J. and the obvious date was one we had all had on hold since January 21, 2015.

[49] This date in April was also my last scheduled Status Hearing Court date. None of the masters have any future Status Hearing scheduled. There had been no request from either party to adjourn this matter further nor did I see any utility in doing so. Both counsel should have been free and ready to proceed on a date scheduled three months earlier, and a further adjournment would have led to even longer delays of this 2010 action, compounded by the end of Status Hearing Courts for the foreseeable future. It made sense to use a date we had all been holding clear to keep this matter moving forward.

[50] Despite the fact that it was clear from Spence J’s reasons how this would unfold, the plaintiff moved, on April 14, for an adjournment of the show cause hearing until after a rehearing of the evidentiary issues and, at that time, he asked that a new date be set for this evidentiary hearing. Clearly, both of these aspects of the motion had already been granted before the return of this motion so a new date was not needed - that was how the April 14, 2015 could and should have been used. I remain puzzled by the fact that Mr. Chalmers filed a thick motion record with about 47 tabs to make a point that had already been accepted.

[51] I was also puzzled by the fact that Mr. Chalmers attended personally to argue the motion. One of the supporting affidavits was sworn by his assistant, Deborah Abbott, who indicated that to the extent that she did not have direct knowledge of a particular fact or event, she obtained it from Mr. Chalmers.

[52] It is trite law that counsel cannot argue based on his own evidence. Interposing an assistant as the conduit for that evidence in no way remedies the problem – this, too, is trite law. As a result, to the extent that anything conveyed by Ms. Abbott based on what she learned from Mr. Chalmers is contentious, it must be disregarded.

[53] This problem was evidenced early on in Ms. Abbott’s affidavit. At paragraph 17, she described what transpired at the initial Status Hearing Court attendance on December 5, 2013. She does not say that she accompanied Mr. Chalmers so presumably she is describing what he told her. She makes her first error right out of the gate, when she swears that the event took place in courtroom 803. That is not correct. I have never sat on the 8th floor and have been sitting only in courtroom 603 for at least the last 14 of 16+ years.

[54] Ms. Abbot then proceeded to discuss the fact that the defendant failed to raise the issue of prejudice from the delay in progress of the action, presumably either in their brief or at the hearing. As we were simply trying to set a hearing date at the first hearing, it is not surprising that prejudice was not mentioned. That first attendance was never intended as the forum for the show cause hearing. All the defendant had to do at that point was convince the court that a show cause hearing should be convened. It remains unclear what the basis for Ms. Abbott’s information is to support these contentions, as she does not say she accompanied Mr. Chalmers to court that day. It therefore appears that this is, in fact, his evidence on the point.

[55] Ms. Abbott notes that, on January 14, 2014, the plaintiff served an affidavit in her name in response to the three-volumes of materials served by the defendant at the original Status Hearing. The following day, they received the Lal affidavit, which raises the issue of prejudice. This, too, is problematic. As they act for the plaintiff who bears the onus on this show cause hearing, their materials were to have led the process off, not simply responded to materials filed at the first attendance. It was Lal who was to have responded to their materials, not the other way around. There seems to have been a lack of appreciation as to how this process works.

[56] Ms. Abbott goes on to discuss more of the chronology. At paragraph 34, she states that counsel appeared before me on January 21, 2015, that I was critical of the plaintiff for the timing of delivery of its materials and that I simply adjourned the show cause hearing to April 14, 2015. She adds that the attendance lasted less than 15 minutes. Again, as Ms. Abott does not state that she was present, it appears Ms. Abbott was informed by Mr. Chalmers and again, her evidence is less than accurate.

[57] The hearing lasted 15, not less, than 15 minutes and ended when counsel had completed their submissions on the issues before the court at that time. As Mr. Chalmers had raised a desire to file responding materials and to cross-examine Lal in his initial correspondence to the court, it was up to him to then make his submissions on those points if he wished to pursue them. As he failed to do so. I was entitled to assume he thought better of it after having heard my initial comments. I was not critical of the plaintiff – I was critical of their timing for delivery of their materials. I know nothing of the merits of the delay issue at this time.

[58] Ms. Abbott’s evidence on this point is selective. As set out above, there was more to the hearing than she discloses. Presumably this was the nature of the evidence placed before Spence J. that led to this rehearing, although that is not clear as he refers only to the plaintiff’s factum. He does note in his reasons that counsel for the defence set out a different version of what transpired. Neither my memory nor my notes coincide with Ms. Abbott’s evidence about how this hearing transpired.

[59] Aside from the above brief reference, nowhere in Ms. Abbott’s evidence is there any mention of the timing for delivery of the plaintiff’s materials, let alone an explanation for it. Nor was there any reference to Mr. Chalmer’s position, as articulated before the court in December 2013, to the effect there was a shared onus at the show cause hearing in view of his client’s counterclaim. Neither point was mentioned in oral submissions.

[60] Mr. Chalmers is with a large firm. If he thought it critical to have this evidence before the court, he ought to have sworn this affidavit and had a colleague argue the motion. Ms. Abbott’s evidence is largely hearsay and, in far too many respects, it is not accurate. I find it to be of minimal assistance.

[61] The plaintiff also relies on the evidence of Naeem Ul Hasnain, the plaintiff’s CEO. While his evidence is helpful on the points to be addressed at this hearing, he strayed beyond those issues and ventured into a discussion of aspects of the merits in order to bolder his position. For example, he stated that he believed it was self- evident that Adler was responsible for the fact that this action was not ready to be set down for trial within two years after it was commenced, and that this conclusion was apparent from a review of Ms. Abbott’s affidavit. This is something he may believe, but ultimately it will be for the court to decide, after a hearing on the merits. As a result, it is not a “fact” at this stage, merely an assertion.

[62] He also claims he believed there would be no question of prejudice to Adler because they caused the delay. As he states: this was going to be Siddiqson’s position on the question of whether Adler had suffered any prejudice from Siddiqson’s delay in the progression of the action, namely that Siddiqsons did not cause any delay, so therefore there cannot be any prejudice to Adler resulting from Siddiqson’s delay.

[63] Presumably, this was going to be their position at the hearing. If that is the case, I query why it was not articulated in their evidence. It was always open and, in fact, appropriate for the plaintiff to advance this position in their original materials. It is a position that other plaintiffs have advanced before. If this is their position, one expects a statement in the supporting evidence on the merits to the effect that, while the Adler may claim they would be prejudiced if the matter is permitted to proceed, in that they caused the delay, they were the authors of their own misfortune.

[64] As I have indicated, I have not yet reviewed the materials submitted for the hearing on the merits. Nor did counsel take me to those materials so I don’t know if or how they covered the issue. It may be that the plaintiff’s beliefs are accurate and that, to the extent there has been delay, it has all or primarily been caused by Adler. If that is the case, we have all spent a lot of time dealing with extraneous issues, adding further to that delay.

[65] It was surprising that no reference was made to the materials filed for the hearing on the merits. The purpose of this hearing for the plaintiff was to convince the court that they were unaware of and taken by surprise by Lal’s evidence regarding prejudice, so they now need to respond to it and cross-examine on it. I would have thought that a starting point for those submission would have been to demonstrate to the court that there is a gap in their materials with respect to the issue of prejudice, in view of their position with respect to that issue.

[66] Ul Hasnain acknowledges that as the plaintiff believed the question of fault for the delay would be resolved in their favour, it was their position there was no need to address prejudice as Adler could not have suffered prejudice occasioned by delay caused by the plaintiff.

[67] If Ul Hasnain is correct, and if the court ultimately accepts that it was Adler that caused the delay and the plaintiff was blameless, nothing changes with respect to prejudice – the plaintiff is still at liberty to claim that no delay, to the extent that any exists, was caused by the plaintiff. It appears his was how they initially planned to present their case and there is no reason why the Lal evidence should divert them from that path.

[68] It is therefore unclear why the plaintiff now feels compelled to address the issue of prejudice in their evidence when they did not do so before. All that has changed is that particulars of alleged prejudice have now been provided by Adler. That has no bearing on who caused the delay of the alleged ensuing prejudice. As a result, Siddiqson’s position about who caused the delay, and hence the prejudice, carries the same weight at it did before Lal’s evidence was filed.

[69] Ul Hasnain then notes that he was shocked to see the Lal affidavit and the discussion about prejudice, particularly as Lal had been asked when examined for discovery on July 3, 2012 to advise of the names and addresses of those reasonably expected to have knowledge of the transactions or occurrences in issue in the action, as per Rule 31.06(2), and his counsel has simply responded that he would comply with his obligations under the Rules. This materials was not among the responses given when Adler complied with its undertakings.

[70] Now Lal speaks of 12 witnesses, claiming they are no longer available. Ul Hasnain states that Siddiqsons would like an opportunity to review the list of 12 people whom Mr. Lal states will be witnesses and who are no longer available and to investigate the assertions made by Mr. Lal in that regard.

[71] This is really the crux of the issue. Since Ul Hasnain’s affidavit was sworn on April 2, 2015, he has now had time to review the list of 12 people. He has also had time to investigate Lal’s assertions.

THE NATURE OF A SHOW CAUSE HEARING

[72] The starting point is Rule 48.14, as it was before it was amended in January 2015. Rule 48.14(1) read at that time:

Unless the court orders otherwise, in an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed, the registrar shall serve on the parties a status notice in Firm 48C.1 that the action will be dismissed for delay unless, within 90 days after service of the notice, the action is set down for trial or terminated, or documents are filed in accordance with subrule (10) (for a consent hearing in writing).

[73] Once the status notice has been served on the parties, the registrar is required to dismiss the action for delay unless one of the options set out under Rule 48.14(4) is exercised:

The registrar shall dismiss the action for delay, with costs, 90 days after service of the status notice, unless:

a) The action has been set down for trial or restored to a trial list, as the case may be;

b) The action has been terminated by any means;

c) The documents have been filed in accordance with subrule (10); or

d) The judge or case management master presiding at a status hearing has ordered otherwise.

[74] Rule 48.14(13) then deals with options available to the court after having convened a status hearing. It begins with the following:

At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay…..

[75] It is therefore clear that it is for the plaintiff to show cause for allowing the action to proceed notwithstanding the expiry of the 2-year period set out in this Rule.

[76] As I have stated previously in Dawson v. Wein, 2015 ONSC 1973, 2015 ONSC1973:

Case law has interpreted this phrase to consist of two requisites for the plaintiff to demonstrate:

1. That there is an acceptable explanation for the delay; and

2. That, if allowed to proceed, the respondent would suffer no non-compensable prejudice.

This approach has been upheld by the Court of Appeal in Khan v. Sun Life Co. of Canada 2011 ONCA 650, [2011] OJ No. 4590 and in 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544, [2012] OJ No. 3877.

Delay is assumed if the timelines set by the Rule have not been met, hence the onus is on the plaintiff with respect to having to provide an acceptable explanation for that delay. Prejudice is also assumed (see Wellwood v. OPP, 2010 ONCA 386), if the applicable limitation period has expired, inevitable in almost all of these cases, so again, the plaintiff has the onus of explaining why there will not be prejudice that cannot be compensated for. If the plaintiff accomplishes that, the onus shifts back to the defendant to provide evidence of actual perceived prejudice.

Though the test is conjunctive, in applying any tests articulated or reiterated by the Court of Appeal that deal with timelines pertaining to looming or actual administrative dismissals, the court should refrain from adhering to a rigid set of rules. Instead, a more contextual approach is called for, such that all relevant factors are to be considered in the mix when the court assesses whether the explanation for the delay that is provided is acceptable. Unexpected or unusual contingencies must therefore inform that part of the test.

TIMING FOR SERVICE OF MATERIALS

[77] Rather than addressing the late timing for delivery of the plaintiff’s materials, the plaintiff has taken the position that the Rules that apply to delivery times for of motion materials do not apply in the context of a status hearing and that as the court made no order for delivery of materials in this case, the court cannot now find fault with the timing of the plaintiff’s delivery of their show cause record.

[78] At the same time, plaintiff’s counsel is also highly critical of Adler, asserting that they waited until the last possible day to bring up the issue of prejudice. This statement is telling. It displays a lack of understanding that there is no onus on the defendant to ‘bring up prejudice” at any time. The issue of prejudice is an element imported by case law and the two-part test. Both aspects of the test are for the plaintiff to establish.

[79] In that Adler, as defendant, was in the position of responding to the plaintiff’s evidence for this show cause hearing, the fact that they delivered their materials one day after having been served with the plaintiff’s record is not, in my view, problematic, in and itself. What was problematic was the plaintiff’s timing.

[80] In his evidence Ul Hassain notes that there is a 9-hour time difference between Toronto and Karachi, presumably where he resides, which has made it very difficult for him to communicate with counsel. He does not provide his normal working hours nor say that he doesn’t have a phone at home. It is unclear to me why he and counsel are unable to arrange to speak between 8:00 -10:00 am Toronto time, which I believe would be 5:00 – 7:00 pm Karachi time. We live in a world of voice mails, e-mails, smart phones, fax machines, scanners and Skype. Ul Hassain does not say these things are not available modes of communication where he is situated. While he may not be able to pick up the phone and call his counsel at 2:00 pm his time if something occurs to him, I am unclear why he can’t send an e-mail or leave a voice mail with what he wants to ask or convey.

[81] This also fails to explain why the plaintiff, having had several months of lead time after the scheduling of the hearing date, added to the time they waited for a date to be assigned, was only able to get their materials delivered 7 days before the hearing, thus failing to meet even the bare minimum for delivery of motions materials.

[82] Although the plaintiff says nothing specific about the delay in delivering their materials, I assume that is what this evidence about a time difference was intended to address. I note, however, that the dots between the two have not been connected and no submissions were made to this effect.

[83] As a result, based on this evidence, I unable to say if the cause of the delay in delivering materials lies at the feet of counsel or if the plaintiff is responsible - if this was a strategic move or if it was caused by real communication problems. Counsel has suggested that I have been “very critical of his client” through the course of the hearing. That is not the case. I am critical of the timing, as it resulted in a lost hearing date and added delay to a case where delay has already been raised as an issue. At this stage, I still have no idea who is responsible for that delay as it has not been explained.

[84] While asserting that the timing for delivery of motions materials has no application here, the plaintiff relies on Rule 39.02(3) later on, claiming that his client has a right to cross- examine Lal on his affidavit, as he would if the affidavit had been delivered with respect to motions. In other words, where it works to their advantage, the plaintiff wants to rely of the Rules as they apply to motions, but where it is disadvantageous to their position, they declare that those Rules have no application here.

[85] In my view, both Rules should apply by analogy, as adapted to the particular exigencies of this particular event.

[86] The timing for delivery of a motion record is dictated by Rule 37.10(1):

Where a motion is made on notice, the moving party shall, unless the court orders otherwise before or at the hearing of the motion, serve a motion record on every other party to the motion and file it, with proof of service, in the court office where the motion is to be heard, at least seven days before the hearing….

[87] Rule 3.01(1)(b) then states that, in the computation of time under the Rules, where a period of seven days or less is prescribed, holidays shall not be counted.

[88] Rule 1.03(1) defines “holiday” to include any Saturday or Sunday.

[89] The Rules are silent with respect to the time line for delivery of a show cause record. It is clear, however, that the plaintiff bears the burden of showing cause, thus that record is akin to a motion record.

[90] I believe it is safe to conclude that a show cause record must be delivered within a reasonable period of time before a scheduled hearing date. In assessing what constitutes a reasonable timeframe in that context, having regard to the Rule dealing with delivery of motion records appears to make the most sense, and has been used as the minimum period of time in other show cause hearing I have dealt with. If the plaintiff was unclear about this or wanted to deviate from it, that ought to have been raised with me.

[91] Accordingly, I find that the plaintiff was late with their materials, having delivered them only one week - not 7 clear days - before the scheduled hearing date.

[92] These time frames, established in the context of motions, are meant to reflect the minimum amount of time for delivery of materials. As I set out above, a show cause hearing is not like a motion that simply appears on a list along with a dozen others. It is more in the nature of a Long Motion by way of special appointment, scheduled to take place on a specific date that works for the parties and that the court is holding for their matter. Timely delivery of materials was therefore all the more important in this case. The fact that I asked to be notified if anything arose to jeopardize that date should have highlighted that fact,

[93] Further: (a) at this time, as there were few status hearing slots remaining for contested show cause hearings; (b) as there will be no further status hearing court dates after April of this year; and (c) as there had been tremendous difficulty getting a date for this matter that worked for all involved, keeping that date was critical.

[94] Similarly, Rule 37.10(6) requires that, on a motion, the moving party’s factum must be delivered at least 7 clear days of the hearing date. Again, it seems to me that this Rule should apply by analogy to those applicable to motions. Parties should have the opportunity to see one another’s arguments before the matter reaches the hearing. In this case, the plaintiff, who bore the onus on the show cause, did not have a factum before the court on January 21, 2015, nor by January 16 when they were advised the matter would be adjourned.

[95] Throughout their oral and written submissions, plaintiff’s counsel spoke of their materials having been “responding materials” as they responded to what Adler had submitted for the purpose of the December 2013 hearing. It was clear to this court that the materials filed at that time were preliminary, only, and not intended to be the final word. Obviously, the plaintiff shared that view – that is why they filed a three-volume record for the hearing. They recognized that they had the onus of proof.

[96] Remarkably, Adler responded, and they did so only a day after they were served, so well within the 4-clear day time line that the Rules create for responding materials on motions. Further, Adler also delivered their factum at that time.

[97] The timing of delivery of the plaintiff’s show cause record and the failure to include a factum in their materials are factors I must consider in the balance when reviewing these issues.

THE PLAINTIFF’S TWO REQUESTS

[98] The plaintiff relies on Perell J.’s decision in Ariston Realty Corp. v. Elcarim Inc. 2007 CanLII 13360 (ON SC), [2007] OJ 1497, where he discusses the operation of:

a. Rule 1.04(1), which promotes a liberal interpretation of the Rules to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits; and

b. Rule 2.03, which allows the court to dispense with compliance with any rule at any time.

[99] What his Honour has to say about the operation of these two Rules is helpful in the current circumstances. He states:

Underlying these rules and interpretive principles are some fundamental principles associated with the administration of justice and civil procedure. These principles include but are not limited to the imperative of deciding disputes on their substantive merits, of ensuring that justice not only be done but seen to be done, and of ensuring that the procedure is just and fair, which is to say that the civil proceedings accord with the principles of natural justice.

[100] Obviously, any procedure imposed or applied must be fair and just to all parties. In this case, the plaintiff relies on this quote to support their contention that they did not have a proper hearing in first instance. While I do not agree that was the case, I am bound by Spence J’s decision, apparently made on the basis of conflicting evidence and possibly, Ms. Abbott’s evidence, with which I have already noted the problems.

[101] The plaintiff has now had the benefit of a full-blown hearing on this issue, complete with evidence directed towards it and case law. The issue of natural justice is therefore off the table. What we are left with is the need for the court to act in a manner that is fair and just to all parties that come before it.

[102] It is on that basis that I approach this motion.

Submission of further evidence

[103] This hearing rests primarily on Ul Hasnain’s evidence and why he claims he needs to submit further evidence. He says that he wants an opportunity to consider the 12 witnesses referred to by Lal and to investigate their circumstances. He points out that only some of them were referred to during Lal’s examination for discovery and that, despite his requests, he has never been told who Adler’s witnesses will be. Essentially, the plaintiff claims they were taken by surprise by Lal’s evidence regarding prejudice and now must respond.

[104] Plaintiff’s counsel submitted as follows: my client’s position was that it not responsible for the delay so it can’t be called on to address the question of prejudice arising from the delay.

[105] Therefore, the purpose of Ul Hasnain’s responding affidavit would be to refute Adler’s allegation of prejudice caused by delay. He indicates that he wants to file an affidavit outlining what he learns from his investigation and he assured the court that he is prepared to come to Toronto to be cross-examined if requested. His counsel takes the position that it is his right to respond to the Lal affidavit.

[106] Had the plaintiff delivered their materials in accordance with the 7-clear day period prescribed by the Rules for motions, I may have agreed with this position. Even then, waiting until such a short time before a matter scheduled for only 1.5 hours to deliver such a lengthy record was obviously going to be problematic. The plaintiff ought to have anticipated that this could lead to an adjournment, as it did. At no time was I advised that the date scheduled was in jeopardy or that additional time might be needed to deliver materials. At no time was an adjournment sought.

[107] The fact that the matter was handled in this manner is all the more surprising in the context of two things: 1) how difficult it was to find a mutually convenient date for the hearing and; 2) that this is a hearing about alleged delay. The purpose of Rule 48.14 is to reduce delay. The fact that the action has not been set down for trial within two years of delivery of the first defence – whoever caused this - has now been compounded.

[108] The plaintiff now asserts that they had no idea that Adler would make these allegations about prejudice and that if they are not permitted to respond now, they will be unable to explain their side of the story. The plaintiff relies on case law that speaks of the need for a full evidentiary record to be placed before the court before a contested status hearing (a show cause) takes place. They rely on the Court of Appeal’s decision in Bolohan v. Hull 2012 ONCA 121, [2012] OJ No, 749, where the court pointed out that:

…the usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the hearing forms the view, on the basis of the oral submission, that the action is vulnerable (to) dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence.

[109] In this case, in addition to oral submissions, I had the benefit of some evidence from both counsel at the initial attendance at Status Hearing Court. On the basis of what I read and what I heard, I concluded that a full hearing was appropriate and I so ordered. I full hearing for 1.5 hours was eventually scheduled for January 21, 2015. The plaintiff had more than a year to contemplate how to approach the hearing and ample opportunity to file whatever they wanted within the intervening period between scheduling of this date and the hearing. For some unexplained reason, they chose to wait until only one week before the hearing date to deliver their record. It was not accompanied by a factum, and according to their counsel, they have not addressed the issue of prejudice.

[110] I am therefore unclear how Bolohan and the cases that follow it are meant to assist the plaintiff. I followed the practice outlined by the Court of Appeal. As neither counsel asked for a timetable for exchange of materials, I was entitled to assume that, as two adult professionals, they could work this out and, if not, would either default to the Rules that apply for motions, as that would reflect, at the very least, what the court would view as constituting a “reasonable” time frame. Alternatively, either party could have sought further assistance from the court if they could not come up with a reasonable proposal for exchange of materials on their own.

[111] This issue has to also be examined from another perspective. The law is clear that there is a two-pronged conjunctive test that the court is directed to apply at show cause hearings, and that the onus is on the plaintiff regarding both aspects of that test. As stated in Bolohan, supra, the plaintiff bears the burden of demonstrating that:

1. there is an acceptable explanation for the litigation delay; and

2. that is the action is allowed to proceed, the defendant will suffer no non-compensable prejudice.

[112] As the test is conjunctive, it is expected that the plaintiff will address both aspects of it.

[113] In this instance, the plaintiff claims they ignored prejudice in their three-volume record because in their view it was self-evident that the delay was caused entirely by the defendant. As a result, they say they could not address prejudice caused by their own delay as, in their view, they were not responsible for any delay.

[114] I have not reviewed this matter on its merits as yet so have no view as to whether the plaintiff’s assertion will or will not be found to be accurate. What I can say is that they are involved in litigation. What they believe or even feel strongly about at this point is nothing more than an assertion, which is being challenged by another party. This has been the case for some time now. That is why the matter is proceeding to a show cause hearing – their version of events is apparently going to be contested as and when we get to the merits of the issue. It will then be up to the court to decide if all of the delay is, in fact, attributable to the defendant, as the plaintiff believes.

[115] If the plaintiff totally ignored the issue of prejudice (as I have yet to review the materials for the main motion, I do not know if this is, in fact, the case) – one of the two components of the test – they must have been exceedingly confident with respect to their position regarding delay. They did so, however, at their own risk, as the law has been clear in this area for several years. They say they did so because in their view, it is self-evident that they caused none of it. There is no evidence before the court to indicate that they have waivered from that view. The sole basis put before the court for their need to file reply materials is Lal’s reference to witnesses and the issue of prejudice.

[116] The plaintiff was confident at the outset that they did not cause or contribute to the delay, hence could not be held responsible for any prejudice flowing from delay. The Defendant’s evidence, which I am told is about the delay, rather than its cause, does not change that. The plaintiff has not been deprived of an opportunity to address the issue of prejudice – they actively chose not to, as in their view, they are not responsible for any of it. It is the client’s affidavit that makes this point. It therefore remains unclear why the plaintiff now feels the need to refute the allegations of prejudice if they didn’t before when the issue of its cause remains unchanged.

[117] It is common, in these cases, for plaintiff to make a general assertion to the effect that the defendant would suffer no prejudice if the matter proceeds to trial. If they do so, they have to be prepared to learn that their assumption may not be correct. In the ordinary course, they would then file reply materials to try to counteract the damage done by the response.

[118] Of course, all of this “back and forth” takes time. If a plaintiff waits until late in the day to initiate the process, it is not surprising that they will be taken by surprise. However, if the plaintiff remains of the view that they caused none of the delay, as their counsel asserted repeatedly during his submissions, how can any of this affect them?

[119] Counsel advised the court that at this hearing he did not even have a Reply affidavit with him to file that day, as that it was not possible to get it from his client in Pakistan that quickly. Yet, knowing the difficulties he was apparently having communicating with the plaintiff, he waited until only one week before the scheduled hearing date to serve his materials, leaving very little time for responding materials and virtually none for reply materials, without an adjournment.

[120] If, on the other hand, the actual reason for wanting to deal with prejudice now is because it was omitted in error in first instance that is a very different matter and raises very different issues. There is no evidence before the court that makes it clear which is the operative scenario so there is no need for me to address a hypothetical. I am left with the plaintiff’s certainty of their position regarding delay, coupled with the fact that it was never mentioned before, as the reasons they did not address prejudice.

[121] Both submissions ignore the fact that the plaintiff bears the onus on this motion wither respect to both elements of the test. The defendant had minimal opportunity to mention it earlier. All they were required to put before the Status Hearing court in first instance was enough grist to demonstrate that a show cause hearing should be convened. They were not required to argue their case in any detail. Generally, at that stage, it is common for defendants to deal exclusively with the issue of delay.

[122] The plaintiff, on the other hand, should have thought seriously about covering all their bases. It seems that this is what they did, concluding that did not have to address prejudice as they caused no delay that could have led to it.

[123] In the ordinary course, if an issue such as this arises in the context of a motion, I would not allow further evidence. Following this hearing, I am less certain as to whether it is client or counsel who is responsible for this dilatory approach to delivery of materials. In that the life of this action hangs in the balance, I am prepared to give the plaintiff the benefit of the doubt.

[124] As Mr. Chalmers noted, I at liberty to impose a cost sanction his client on the plaintiff for their tardiness. I agree that this would be appropriate, as, in my view, it was the timing of their materials that has now led to three hearings to deal with evidentiary issues.

[125] Having considered counsel’s submission in that regard, I have concluded that the appropriate balance at this time is to allow the plaintiff to file their Reply record, subject to paying costs of this and the January 21, 2015 hearings, with all that entails. In view of what is at stake at a Show Cause Hearing and the lack of clarity as to who was responsible for the late delivery of materials, this, in my view, is the order that is just.

[126] I will therefore allow the plaintiff to deliver a Reply Record, to be delivered, no later than AUGUST 14, 2015 and restricted to the issue of prejudice, as that is the basis on which this request was made and argued.

Cross-Examination of Lal

[127] This request raises different issues.

[128] The case law is clear that, though there is a prima facie right to cross-examination on affidavits filed in respect of motions and applications, the court retains discretion to disallow it in certain circumstances (see Ferguson and Imax Corp. et al 1984 CanLII 2021 (ON SC), 47 OR (2d) 225).

[129] The parties appear to agree that the cases that address cross-examination in the context of a motion or application apply by analogy where the affidavit was delivered in respect of a show cause hearing. Although Rule 39.02(1) expressly applies to affidavits served in the context of a motion or application, it is reasonable to apply the same process here, in the absence of a Rule that dictates otherwise, as was done in Speciale v. Giardino [2010] OJ No. 732. I adopted a similar approach (applying the relevant sections of the Rules of Practice), where there was a perceived legislative gap, with respect the timing for delivery of materials.

[130] In Ferguson, the court discussed the court’s inherent power to control its own process, such that it could refuse to allow cross-examination entirely or restrict its scope. The cases where this has been done usually involved situations of urgency so that time did not permit this step, or where the party seeking to cross examine did not act with dispatch. There is nothing in the case law to suggest that the categories for refusing or restricting cross examination are limited to those two circumstances. I have refused it where the subject on which a party sought to cross-examine was shown not to be relevant to either the affidavit filed or to any issues raised by the motion.

[131] In view of my comments above, I am hard pressed to understand what the plaintiff hopes to achieve at the end of the day by conducting this cross-examination. If it is self-evident, as their deponent asserts, that they are not responsible for any of the delay regarding this matter, whether or not the plaintiff will suffer prejudice if the matter is permitted to proceed would not be a material factor for the court’s deliberations as they would not have caused or contributed to it. Thus, more or less details as to what the prejudice consists of – as distinct from its cause- can add nothing to the outcome of this show cause hearing if matters are resolved as the plaintiff suggest they will be.

[132] Of course, parties on either side of a dispute are often confident that their position is the one that will prevail, and, in the end, only one can win the day Bearing that in mind, and after having received Mr. Chalmers’ submission to the effect that he expects his client can be penalized in costs for all that has transpired as a result of the timing of their materials, I will allow cross-examination of Lal, to be completed by the end of September, 2015, and restricted to the issue of prejudice, in view of how this motion has been presented and argued. If Adler also now wishes to cross-examine the plaintiff’s deponent, they, too shall restrict their cross- examination to the issue of prejudice and shall complete their examination within the same time frame. As this is an indulgence of the court, I am not prepared to condone a free for all cross-examination at this stage of the proceeding by either party.

[133] The plaintiff is reminded of his obligation under Rule 39.02(4) regarding costs.

[134] As and when these steps are completed, Mr. Chalmers shall advise me so that we can conduct a conference call for the purpose of scheduling this hearing. I will have to seek permission to conduct it on a Long Motions date. I also understand that Adler will want time to bring a motion for further security for costs before the next hearing date.

[135] Before we speak, counsel should consider carefully how much time they believe we will need for the hearing on the merits.

[136] The issue of the costs associated with the two evidentiary hearings will be dealt with at the conclusion of the hearing on the merits, either at the same time, or, if time does not permit, added to a regular motions list for two hours or less.

Master Joan M. Haberman

Released: June 26, 2015