Court File and Parties

COURT FILE NO.: CV-14-496948 DATE: 20160412 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HYDROXYL ENVIRONMENTAL INC. Plaintiff – and – AIR DOCTORS INC., ANDRE KERN and JEFF MEPHAM Defendants

Counsel: Jerome R. Morse for the Plaintiff Jeffrey C. Silver, for the Defendant, Jeff Mepham Leo Klug, for the Defendants, Air Doctors Inc. and Andre Kern

HEARD: April 11, 2016

Endorsement

DIAMOND J.:

[1] This matter was referred to me by Justice McEwen to conduct a case conference pursuant to Rule 50.13 of the Rules of Civil Procedure. The plaintiff scheduled the case conference for the purpose of requesting an order that this proceeding be transferred into case management with myself appointed as the case management judge.

[2] The defendants opposed the plaintiff’s request. Submissions were made before me at a 9:00 a.m. chambers appointment.

[3] Pursuant to Rule 77.05(4), in considering whether to assign a proceeding for case management, I must have regard to “all the relevant circumstances”, including any or all the following:

1. the purpose set out in Rule 77.01(1),
2. the complexity of the issues of fact or law,
3. the importance to the public of the issues of fact or law,
4. the number and type of parties or prospective parties, and whether they are represented,
5. the number of proceedings involving the same or similar parties or causes of action,
6. the amount of intervention by the Court that the proceeding is likely to require,
7. the time required for discovery, if applicable, and for preparation for trial or hearing,
8. in the case of an action, the number of expert witnesses and other witnesses,
9. the time required for the trial or hearing, and
10. whether there has been substantial delay in the conduct of the proceeding.

[4] This action involves an alleged conspiracy between the defendants to misappropriate the plaintiff’s property. The statement of claim was issued on January 22, 2014. On June 10, 2014, Master Abrams heard a motion brought by the defendants seeking an order striking portions of the statement of claim and to provide further particulars and other documents.

[5] Master Abrams released her decision on September 8, 2014 which ordered the plaintiff to produce various documents and provide further particulars of certain paragraphs in the statement of claim. The defendants apparently appealed the portion of Master Abrams’ order which refused to strike out certain causes of action.

[6] The parties disagreed as to the form and content of one of the paragraphs of the draft order codifying Master Abrams’ decision. The clarification sought by the parties from Master Abrams was ultimately released on May 8, 2015.

[7] Shortly before the scheduled return date of the appeal, the defendants abandoned their appeal of Master Abrams’ order. Within several weeks, the plaintiff submitted a proposed discovery plan of the defendants. The defendants countered with their own proposed discovery plans of the plaintiffs. While the plaintiff was content with the discovery plan of the defendants, the parties could not and have not agreed upon a discovery plan for the plaintiff.

[8] The defendants Air Doctors Inc. (“Air”) and Andre Kern (“Kern”) have delivered sworn affidavits of documents. The plaintiff has delivered an unsworn affidavit of documents. The defendant Jeff Mepham (“Mepham”) has not delivered an affidavit of documents.

[9] The parties attempted to schedule examinations for discovery in February/March 2016, but those attempts failed as affidavits of documents have yet to be exchanged and a discovery plan (of the plaintiffs) has yet to be finalized. The parties appear to strongly disagree upon the extent and scope of inquiry into the plaintiff’s alleged damages.

[10] The plaintiff’s statement of claim has already been amended on one occasion. The plaintiff has now sought the consent of the defendants to a further amendment which addresses allegations of spoliation of evidence on the part of the defendants. While Air and Kern have apparently provided their consent to these further amendments, Mepham has not as he has requested particulars from the plaintiff as to when it discovered the material facts leading to these new allegations (presumably to assess the merits of a potential Limitations Act 2002 defence and whether or not to oppose the motion to amend).

[11] While this proceeding is over two years old, I do not find the presence of sufficient delay that qualifies as “substantial”. While a portion of the delay to date was caused by the abandoned appeal of Master Abrams’ order, since the date of the abandonment of the appeal, the plaintiff has yet to deliver a sworn affidavit of documents.

[12] It is unfortunate that the parties seem to be mired in exchanges of correspondence which consistently advocate their respective positions. However, the only motions contemplated at present relate to the scope of oral and documentary discovery. The plaintiff’s pending motion to amend should not substantively impact the parties’ ability to proceed with examinations for discovery.

[13] I do not find that the parties have demonstrated a need for this Court’s intervention at this time. While I dismiss the plaintiff’s request that this proceeding be case managed, the plaintiff (or the defendants) may submit this request in the future should the factual matrix change and the need arise.

[14] That said, pursuant to Rule 50.13(6), I order all parties to deliver their respective sworn affidavits of documents, together with all Schedule “A” productions, on or before April 22, 2016. If any of the parties take issue with the affidavit(s) of documents of any other party, they are to schedule a motion before a Master on the earliest available date so that such a motion can be determined forthwith and examinations for discovery thereafter proceed as soon as possible.

Diamond J. Released: April 12, 2016