SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2130

Applicant

-AND-

YORK BREMNER DEVELOPMENTS LIMITED, THE CADILLAC FAIRVIEW CORPORATION LIMITED and YORK BREMNER HOTEL LEASEHOLDS LIMITED

Respondents

BEFORE: F.L. Myers J.

COUNSEL: Richard Macklin for the applicant

Catherine Francis and A. Irvin Schein for the respondents

READ: October 14, 2015

case conference ENDORSEMENT #5

[1] On September 28, 2015 counsel attended for a Case Conference. I have been case managing the defendant’s multiple motions for various forms of summary determination of many of the claims of the plaintiff in a number of pieces of related litigation. While the goal of narrowing the issues has not been advanced significantly, the parties are moving forward in the motion process with cross-examinations now imminent.

[2] At the last Case Conference, a helpful written agenda was utilized. Among the issues raised, the agenda purported to record the consent of counsel to four orders dismissing several enumerated claims in the various pieces of the litigation. I signed two orders on consent at the Case Conference. However, counsel for the plaintiff advised that he wanted to confirm his instructions with his client on the remaining two consent orders dealing with items 5, 8, 13, 19 and 20 in Schedule “A” to each of the statements of claim in the two 2013 actions against YBDL (Action Nos. CV-13-481057 and CV-13-00489723). I wrote that:

If the plaintiff consents to the dismissal orders, then they may be sent to me by email for signing. If Mr. Macklin is not able to obtain confirmation by October 5, 2015 that the listed claims [in the agenda] are those referred to as “resolved” in the plaintiff’s engineering expert’s report(s), then Ms Francis is at liberty to send me the relevant pages of the plaintiff’s expert reports and copies of the relevant schedules from the statements of claim and I will compare them and rule accordingly.

[3] The plaintiff has now confirmed that all of the listed claims are to be dismissed on consent with the exception of claim #19. I have confirmed that claim #19 is sworn to have been “resolved” in the affidavit of the plaintiff’s representative and in its expert’s report. The plaintiff now says however that it wishes to proceed with that claim. The time for filing material has long passed. The plaintiff says that it should be free to obtain evidence about the claim in the upcoming cross-examinations of the defendants’ witnesses.

[4] The plaintiff is correct that on a motion for which evidence is admissible, a party may rely on evidence obtained by cross-examination of an opposing party’s witnesses. See Rule 39.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. But, in my view, that is not the sole consideration in this matter. As I have noted to the parties since my first endorsement in this process, this litigation has been outstanding for several years and is noteworthy for the tactics at play rather than for its progress toward resolution.

[5] A plaintiff who sues is required to plead the basic factual allegations that it is making against the defendant. See Rule 25.06(1). If there are thousands of little particulars, there is time to start the claim and collate the details. See Rule 25.11. But that time too passed long ago.

[6] Here both parties are playing chess but they are stuck in a process of moving their pieces around and around the board in response to each other’s moves rather than moving forward with a strategy to get to the end game. Justice Farley used to say that every case should have a strategy; but tactics are unwelcome. Here, there are multiple claims and placeholder claims and court allegations that overlap with arbitration proceedings and arbitration proceedings that overlap with court proceedings. Viewed individually, each step is perfectly clever and defensible from a viewpoint of ensuring that no possible option is ever foreclosed and that no risk is ever taken that the other side might get a leg up on an issue. But at some point, the issues are supposed to be joined and resolved. Is not the whole purpose of the process to take what is in issue and determine who is correct and who has to pay? If so, then what are the issues? The corollary question is: what is not in issue?

[7] The defendant has moved for judgment dismissing many of the plaintiff’s claims on a number of bases. There is no burden on the defendant to lead evidence. It is perfectly appropriate for a defendant to say that there is no genuine issue requiring a trial on one or more points and leave it to the plaintiff to respond to establish that a claim exists. The defendant who moves and leads no evidence will be deemed at the motion to have led all evidence that it has on the issue (i.e. none). 2313103 Ontario Inc. et al. v JM Food Services Ltd. et al., 2015 ONSC 4029 at para. 40. The plaintiff will then have an evidentiary burden to show that a claim exists. In response to the defendant’s motion, the plaintiff may not rest on its pleadings and must lead evidence to establish a claim. See Rule 20.02(2). If there are facts in issue or a legal issue raised, the moving party will bear the ultimate burden of establishing that there is no serious issue requiring a trial under Rule 20.04(1).

[8] In the ordinary course, it might well be that in response to a motion for summary judgment, a plaintiff can choose to lead no evidence and try to make its case in the cross-examination of the defendant. While that would seem to be an unusual tactic, it is one allowed by a technical reading of the Rules. But here, the plaintiff has led some evidence. Its evidence is that the issue has been resolved. It did not put into evidence its side of the story or have its expert opine on the issue. Counsel was going back to his client merely to confirm that the issues listed as resolved in the evidence were the claims listed in the agenda (i.e that issue #19 is listed as “resolved” in the client’s affidavit and expert’s report). The plaintiff’s position now as expressed by its counsel is as follows:

It appears that amidst the 41 deficiencies in Schedule "A", which are themselves drawn from the 1,000 deficiencies that led to the dispute, we overlooked, in Ms. Davidson's affidavit, the corollary losses that flowed from the deficiency in item 13.

Our client's position, in addition to arguments already made, is that it wishes to cross-examine on this issue at the upcoming examinations. Our client submits that there is no prejudice to either party in proceeding in this fashion. The other side can re-visit its motion to dismiss following the examination on this narrow issue and the answers to undertakings.

[9] I disagree with the argument that there is no prejudice caused by a little fishing expedition in cross-examination. While again readily understandable as a tactical maneuver, it is not acceptable for a plaintiff that does not have a positive case on a point at this late date to simply want to explore the point before the defendant re-visits its motion to dismiss. It is well past time to fish. Now is the time to cut bait. Sue for the wrongs that you know have been committed. Focus on the important points and yield on the points for which there is still no evidence developed years into the case. A case cannot be resolved where the parties will not join issue. Interminable delay and massive costs caused by incessant tactical jousting by both sides has to end. There is indeed prejudice caused by the parties declining to agree to what is in issue and what is not.

Delay and the distress that it brings to litigants do matter. Procedural gamesmanship, incessant delay, and discovery without end have brought the civil justice system to the brink of a crisis. There are real people behind lawsuits – even claims involving sophisticated corporations. These people are entitled to timely justice. Because the civil justice system does not deliver timely, affordable and proportionate justice, people are looking elsewhere for dispute resolution to the detriment of the public and the common law. Fixing the civil justice system requires a culture shift on the part of the players in the system.[^1]

[10] Issue #19 is not in issue. A desire to fish for evidence is not a basis to sue and certainly not a basis to keep a claim alive at this stage.

[11] There has to be an end to these cases. They will be resolved by the parties or by the court. Resolution has to be as efficient, affordable, and proportionate as possible. Both parties seem to be unwilling to move forward by narrowing the issues so that an early and efficient resolution can occur. Yet, they are neighbours. They have to live with each other for years to come so that the idea of arriving at a modus vivendi and ending the legal blood-letting must represent the win-win outcome. But they are sophisticated parties and they have determined that an all-out legal war is a better strategy than a consensual resolution. Perhaps it is because they are neighbours and have to live together for years to come that each wants to win the war now in the hope of avoiding future battles. In any event, it is the parties’ right to choose to litigate. But it is incumbent on the court and counsel for that matter to get the war ended as efficiently as possible despite the parties’ strategies and tactics. If nothing else, these parties are not entitled to the free use of a disproportionate amount of court time to hammer away at each other in their private war of attrition. Neither will the court abide tactical steps that may make perfect sense to clever tacticians, but serve to impede the goals of timely and efficient resolution on which the civil justice system is based.

[12] It is well past the time to keep issues open where a party does not have evidence to support a claim just in case something good (or bad) pops up on cross-examination. That ship has sailed. There is no prejudice to dismissing claims that are not claims years into the fray with all the defining of issues and interlocutory processes that has been incurred in this case (these cases).

[13] I am satisfied that the claim listed in the agenda as #19 is indeed noted as resolved in the plaintiff’s evidence and in its expert’s report. That was the open question from the Case Conference. Therefore, orders will issue dismissing the claims asserted in items 5, 8, 13, 19 and 20 in Schedule “A” to each of the statements of claim in Action Nos. CV-13-481057 and CV-13-00489723.

________________________________ F.L. Myers J.

Date: October 15, 2015

[^1]: Letang v. Hertz Canada Limited, 2015 ONSC 72, discussing Hryniak v. Mauldin, 2014 SCC 7