Court File and Parties

Court File No.: CV-14-516561 Date: 20160722 Superior Court of Justice - Ontario

Re: Continental Casualty Company, Plaintiff – AND – Robert Symons, as successor in interest to G. Gordon Symons also known as Gerald Gordon Symons and as Trustee of the Estate of Gerald Gordon Symons, Alan G. Symons, The Estate of Gerald Gordon Symons, Symons International Group, Inc., IGF Holdings, Inc., Granite Reinsurance Company, Ltd. and Goran Capital Inc., Defendants

Before: Justice E.M. Morgan

Counsel: Lou Brzezinski and Varoujan Arman, for the Plaintiff Sean Zeitz, for the Defendants

Heard: June 27, 2016, supplementary submissions in writing

Supplementary Endorsement

[1] On July 11, 2016 I released my endorsement in this matter vacating the interim interim stay of enforcement that had been ordered on October 13, 2015, appointing an investigative receiver over the Estate of Gerald Gordon Symons, and awarding the Plaintiff its costs of the motion and of the previous motion (which had been deferred to me): Continental Casualty Co. v Symons, 2016 ONSC 4555. A week later I received a message from counsel indicating that the two sides were having difficulty settling the terms of the formal Order. Given the logistical difficulty of scheduling another appearance in the immediate future, I invited counsel to make short written submissions.

[2] I have now received written submissions from both counsel, as well as a copy of Plaintiff’s counsel’s draft Order. Apparently, Defendants’ counsel would not approve Plaintiff’s counsel’s draft in form and content because of several concerns he had, which he has now set out in writing.

[3] Defendants’ counsel’s objections to the draft Order are as follows: a) paragraph 10 of the draft Order, reflecting paragraph 30 of my endorsement, requires the Defendant, Robert Symons, to have access to all places where the relevant information and records of the Symons Estate are kept. Defendants’ counsel is concerned that Robert Symons may not have access or authority to grant such access; b) paragraph 21 of the draft Order, reflecting paragraph 35 of my endorsement, makes costs in the amount of $60,000 payable by the Defendants to the Plaintiff. Defendants’ counsel submits that this is too much, and that roughly half of this amount should not have been awarded against the Defendants as they were successful on the previous motion. Defendants’ counsel also submits that the costs should be awarded against the Defendant, Robert Symons, alone, and not against the other Defendants, and has indicated that the other Defendants who are members of the Symons family are sensitive to the suggestion in my endorsement that they were found complicit in the fraud which Gerald Gordon Symons was found to have perpetrated;

[4] None of Defendants’ counsel’s objections are actually related to the form of Order. Rather, they address the Defendants’ unhappiness with the substance of my ruling. I specifically turned my mind to each of the issues that they raise, and the draft Order produced by Plaintiffs’ counsel accurately reflects the terms of the endorsement.

[5] Plaintiffs’ responding submissions accurately point out that I specifically required Robert Symons to make available all records and information that he has in his possession or control and can provide. Likewise, I specifically turned my mind to the issue of costs in both the motion before me and the previous one, and indicated that I was exercising my discretion in accordance with Rule 57.01(1)(0.b) of the Rules of Civil Procedure to award costs of both motions to the Plaintiff. Moreover, the Defendants were all represented by the same counsel and argued as one in the motion before me, never distinguishing one from the other in terms of who was arguing the motion and who would be responsible for costs.

[6] Defense counsel had several procedural routes available to him following issuance of my endorsement. If he felt there were one or more factual errors he could move under Rule 59.06 of the Rules of Civil Procedure for a correction; and if he felt there were one or more legal errors, he could appeal my ruling. Moreover, if he felt that a miscarriage of justice would occur if the ruling remained in place, he could have moved for reconsideration as the petitioner did in Schmuck v Reynolds-Schmuck (2000), 46 OR (3d) 702, at para 25 (SCJ).

[7] He has done none of these. Instead, counsel for the Defendants has couched this as an objection to the form of Order, and has held up the Plaintiff’s ability to take out a formal Order and get the investigative receiver appointed and working. This has imposed an unwarranted burden on the Plaintiff, and is the kind of approach that makes civil litigation less timely and more expensive than it already is. In Chrysler Credit Canada Ltd. v 734925 Ontario Ltd. (1991), 5 OR (3d) 65, Master Peppiatt observed that counsel have an obligation to the court and to opposing counsel to approve an Order to which there is no valid objection.

[8] I have signed the Order as drafted by Plaintiff’s counsel, and it can be retrieved from the court along with this Supplementary Endorsement.

[9] In my view, the Plaintiff deserves its costs of having to engage in this supplementary exercise.

[10] I invite both counsel to make written submissions as to the appropriate quantum of costs. I would ask that Plaintiff’s counsel provide those submissions to me within one week of today, and that Defendant’s counsel provide responding submissions to me within one week thereafter.

Morgan J. Date: July 22, 2016