ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-347902
DATE: 20150720
BETWEEN:
KERSASP SHEKHDAR
Plaintiff
– and –
BEARD WINTER LLP and ROBERT HARASON
Defendants
Kersasp Shekhdar, self-represented
Rob Winterstein for the Defendants
HEARD: July 16, 2015
PERELL, J.
REASONS FOR DECISION
[1] Typical of the bizarre procedural history of this seven-year-old action between a client and his former lawyers, the immediate motion presents the procedurally rare-as-hen’s-teeth phenomena that, practically speaking, it ultimately does not much matter whether I grant or dismiss the motion. Regardless of whether I grant the motion or dismiss the motion, the genuinely important issue that underlies the immediate motion, which is a meta-motion, a motion about another motion, will remain to be determined. Practically speaking, the meta-motion is dysfunctional in the bringing of it and in the resisting of it.
[2] In other proceedings, which I understand have recently come to an end, the Defendant Beard Winter LLP sued the Plaintiff Kersasp Shekhdar to collect an outstanding account from a 2003 retainer. Mr. Shekhdar, who it shall be important to note resides in Pakistan, responded in 2008 with the solicitor’s negligence action now before the court against Beard Winter LLP and against Robert Harason of that firm.
[3] A series of case management masters and judges have stoically endeavored to manage the litigation, and it was in this context that on September 17, 2014, Master Short made Case Management Direction #4 that is the subject of the motion now before the court. Case Management Direction #4 was the result of a case conference that occurred a year ago on July 22, 2014, and the problematic part of the Master’s Direction, which is the subject of the immediate motion, is paragraphs 13-17, which state:
In terms of Examinations for Discovery, Mr. Shekhadar [sic], consistently with his previous position and my April 2, 2014 Endorsement, has maintained that he is waiving his right to examine Beard Winter LLP and Mr. Harason for discovery.
For his part, Mr. Tighe [Beard Winter LLP’s lawyer] indicated that he would like to examine Mr. Shekhdar for discovery but that Mr. Shekhdar must make himself available for any such examination in the Province of Ontario given that he is the plaintiff in the 08 Action commenced in Ontario.
Mr. Shekhdar has unequivocally and clearly indicated that his position is that he will not comply with any Notice of Examination that is served by Mr. Tighe and will not make himself available for examinations for discovery in Ontario unless his travel and accommodations are paid for by Beard Winter LLP and Robert Harason.
Rather that resolving the issue of Mr. Shekhdar’s examination for discovery on this case conference telephone call, I advised the parties that the issue could be dealt with by way of a motion on the September 29, 2014 date that I have set.
In order to expedite matters, for the purposes of any motion that may be brought on September 29, 2014, or at a later date, to deal with Mr. Shekhdar’s examination for discovery and given Mr. Shekhdar’s clear position in regards to attending in Ontario to be examined for discovery; I order that Mr. Shekhdar shall be
• deemed to have been served with a Notice for Examination for Discovery
• is deemed to have failed to comply with such Notice of Examination and
• that Beard Winter LLP and Robert Harason are deemed to have obtained a Certification of Non-Attendance with respect to Mr. Shekhdar’s aborted examination for discovery.
[4] Mr. Shekhdar says that the motion now before the court is: (1) for an extension of time to set aside paragraphs 13 to 17 of the Master’s Direction, and (2) if the extension is granted, for an order setting aside paragraphs 13 to 17 of the Master’s Direction based on numerous grounds of appeal. Beard Winter LLP and Mr. Harason say that the motion now before the court is just about whether Mr. Shekhdar should be granted an extension of time to appeal the Master’s Direction.
[5] Thus, the parties do agree, at least, that the issue about extending the time to appeal is before the court, and they also agree also about the test for granting an extension of time to appeal. However, they disagree about what should happen about the appeal itself, if an extension is granted.
[6] The overarching principle for granting an extension of time to appeal is whether the justice of the case requires that an extension be given: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15.
[7] In determining whether to grant an extension, the court should consider: (1) whether the moving party formed a bona fide intention to appeal within the relevant time period; (2) the length of, and explanation for, the delay in filing; (3) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (4) the merits of the proposed appeal: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5; Concerned Residents Association v. Preston Sand and Gravel, 2015 ONSC 2086; Rizzi v. Mavros, 2007 ONCA 350.
[8] In the case at bar, before deciding what issues are before the court, I note that whatever issues are now before the court, they are meta-issues; i.e. issues about another issue. The other issue, the genuinely important issue, is the matter of how Mr. Shekhdar’s examination for discovery is to be conducted. As I have already noted above, regardless of whether I grant or refuse the motion now before the court, the manner of Mr. Shekhdar’s examination remains to be determined. The matter of the manner of Mr. Shekhdar’s examination was not dealt with in September 2014, as Master Short encouraged the parties to do, but I was told the matter of the manner of Mr. Shekhdar’s examination for discovery is now scheduled to be dealt with by Master Haberman in September 2015.
[9] Turning to resolving the dispute about what is now before the court, Beard Winter LLP and Mr. Harason say that from what they were told in an e-mail from Justice Himel, who scheduled the current motion, they understood that it was only a motion about an extension of time, and they say that had they known that the appeal itself was going to be argued, then they would were have prepared for the motion differently. They submit that they will be prejudiced if this motion deals with more than the matter of the extension. Mr. Shekhdar counters that regardless of what the correspondence from Justice Himel says, which he interprets differently, Beard Winter LLP and Mr. Harason would have known from his factum that the appeal of the Master’s Direction would be before the court.
[10] In my opinion, both substantively and pragmatically what is before the court is both the motion for an extension of time to appeal and also the appeal. Further, in my opinion, Beard Winter LLP and Mr. Harason will suffer no prejudice by my deciding both issues. The substantive part of the issues overlap because, as noted above, one of the main factors, if not the main factor to consider in deciding whether to grant an extension of time is the merits of the appeal.
[11] In the case at bar, Beard Winter LLP and Mr. Harason make a fulsome and robust defence of what Master Short decided, and they made an equally robust argument that there is no merit to Mr. Shekhdar’s appeal.
[12] In the bizarre procedural world of this litigation, if I grant the motion for an extension, the parties’ robust arguments of the merits of the appeal from a Master’s Order about meta-issues will just be wasted arguments and, for no good reason, these robustly made arguments about the meta-issues would just have to be repeated another day before a judge before September 2015, when - one can only pray - the genuinely important issue of the manner of Mr. Shekhdar’s discovery is to be decided.
[13] I, therefore, decide that the issues before me are: (1) the issue of the extension of time for appeal; and (2) if the extension is granted, the merits of the appeal.
[14] Dealing with the issue about granting an extension, in my opinion, the extension should be granted largely because the justice of the case demands it. The merits factor of the test for an extension overshadows the largely factual issues about when Mr. Shekhdar formed the intention to appeal and about his explanation for the delay in appealing. In my opinion, those factors are satisfied as is the absence of prejudice to Beard Winter LLP factor if the extension is granted. The predominant factor, however, is the merits of the appeal and the injustice of not hearing the appeal.
[15] Events have demonstrated that the expressed purposes of the Master’s Order; i.e., of expediting the resolution of the issue of the manner of Mr. Shekhdar’s examination for discovery, have miserably failed, but much more to the point, the Master did not have the jurisdiction to impose the terms in his Direction and those terms are procedurally unfair and unjust.
[16] During the argument of the motion, I asked counsel for Beard Winter LLP and Mr. Harason what was the source of the Master’s jurisdiction to make the orders he made in paragraphs 13-17 of his Direction, and I was told that the jurisdiction was found in rule 77.04, which states:
Case Management Powers
77.04 (1) A judge or case management master may,
(a) extend or abridge a time prescribed by an order or the rules;
(b) adjourn a case conference;
(c) set aside an order made by the registrar;
(d) establish or amend a timetable; and
(e) make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule
[17] If this source of jurisdiction is the one relied on, then pursuant to rule 77.04 (1)(e), in the case at bar, for the purpose of expediting a motion yet to be heard to determine the manner of Mr. Shekhdar’s examination, the Master imposed a term that Mr. Shekhdar be deemed to have anticipatorily breached a fictional obligation to attend an examination for discovery. With respect to the Master, this cannot be a correct application of rule 77.04. Apart from the fact that Mr. Shekhdar was, in effect, convicted of a breach of the rules that normally exposes a litigant to serious consequences, including contempt proceedings or having his or her action struck, and apart from the fact that Mr. Shekhdar was being convicted for taking a position, which litigants are normally free to change, and apart from the fact that litigants are typically given a chance to comply with the rules, the effect of the deeming provisions was to establish an unfair procedural playing field for the motion to determine the manner of Mr. Shekhdar’s examination for discovery.
[18] None of this can be said to be necessary to carry out the purposes of the case management rules, and none of this is consistent with the general principle found in rule 1.04 (1) that: the “rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[19] It may be that the Master, who has had considerable experience with these litigants and this litigation and who is commendably a champion for proportionality in civil procedure, was attempting to give Mr. Shekhdar a fair warning that his declared position; i.e. that he would not attend in Ontario unless the arrangements for a trip from Pakistan were made at his former lawyer’s expense, might prove to be a serious problem for Mr. Shekhdar, but, in my opinion, whatever the Master’s intentions, which I have no doubt were good, he went too far in how he gave this warning and in how he implemented those good intentions.
[20] The result was procedurally unfair. The Master erred in principle, and thus: the appeal should be granted; paragraphs 13-17 of his Direction should be struck; and a level procedural playing field for the pending motion about Mr. Shekhdar’s discovery should be restored.
[21] For the above reasons, I grant the motion for an extension of time to appeal and I grant the appeal, which apart from deciding the meta-issues has in truth decided very little, because the genuine issue about the manner of Mr. Shekhdar’s discovery remains to be determined.
[22] Nothing in these reasons should be taken as expressing an opinion about how the pending motion should be determined.
[23] If the parties cannot agree about the costs of this motion, which was conducted by long distance telephone conference call, they may make submissions in writing, beginning with Mr. Shekhdar’s submissions within 20 days of the release of these Reasons for Decision followed by Beard Winter LLP’s and Mr. Harason’s submissions within a further 20 days.
Perell, J.
Released: July 20, 2015
COURT FILE NO.: 08-CV-347902
DATE: 20150720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KERSASP SHEKHDAR
Plaintiff
– and –
BEARD WINTER LLP and ROBERT HARASON
Defendants
REASONS FOR DECISION
PERELL J.
Released: July 20, 2015