Court File and Parties

COURT FILE NO.: 02-CV-230552CM2 DATE: 20160919

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NEARCTIC NICKEL MINES INC. and UNGAVA MINERAL EXPLORATION INC. Plaintiffs – and – UNIVERSITY OF TORONTO and JAMES MUNGALL Defendants

COUNSEL: Lloyd Hoffer & Idan Erez, for the Plaintiffs Peter J. Henein & Caitlin Russell, for the Defendants, James Mungall and the University of Toronto Gary J. Marcuccio, for Laurentian University and C. Michael Lesher Sean Gosnell & Ladan Mehranvar, for the Proposed Defendants, Falconbridge Limited and Danielle Giovenazzo

HEARD: May 30-June 3, 2016

LEDERER J.:

INTRODUCTION

[1] These reasons consider five separate motions, each of which seeks the reinstatement of one of five actions. The five actions find their provenance in the same circumstance and background. Three of the motions are to set aside administrative dismissals and the other two to extend the time for filing or serving Statements of Claim.

BACKGROUND

[2] The plaintiffs in each of the five actions are related. Glen Erikson, the deponent of several, if not many, affidavits filed in support of the plaintiffs, has said that “since the inception in each case”, he has been “the principally involved individual and person instructing counsel on behalf of the plaintiffs of the related actions.” [1] Each plaintiff claims an interest in certain mining rights with respect to property located in the province of Québec. It is alleged that one of the defendants, James Mungall, a geologist employed by the defendant, the University of Toronto, proposed a research project utilizing a collection of samples from the property. It is said that James Mungall offered to share any resulting data in exchange for the permission he sought. Two of the plaintiffs, Ungava Minerals Corp. (subsequently, Nearctic Nickel Mines Inc.) and Ungava Mineral Exploration Inc., agreed. It is alleged that James Mungall and the University of Toronto did perform tests and determined that the property contained platinum group minerals. It is said that, contrary to the agreement that had been struck, they never advised the plaintiffs. Unaware of the presence of platinum group minerals, Ungava Minerals Corp. and Ungava Mineral Exploration Inc. entered into an option and joint venture agreement with a non-party, Canadian Royalties Inc. It is fundamental to the five actions, that in view of the presence of platinum group minerals, the option and joint venture agreement was, from the perspective of the plaintiffs, improvident. Pursuant to that agreement, Canadian Royalties Inc. obtained the right and option to acquire up to an 80% interest in the property. In the present proceedings, the plaintiffs, Nearctic Nickel Mines Inc. (formerly Ungava Minerals Corp.) and Ungava Mineral Exploration Inc., state that had they known of the presence of the platinum group minerals, they would have developed the property on their own or, alternatively, would have optioned an interest in the property on better terms than they did in the absence of that knowledge. The plaintiff, Gogama Gold Inc., makes a claim based on the same understanding. Its interest stems from the fact that it held a 1% net smelter returns royalty in connection with the property. Gogama Gold Inc. sold its interest to Canadian Royalties Inc. in conjunction with the option and joint venture agreement Canadian Royalties Inc. had entered into with Ungava Minerals Corp. and Ungava Mineral Exploration Inc. As Gogama Gold Inc. now sees it, this agreement was similarly ill-advised. Had James Mungall provided the information (the results of the testing program) as he was required to do, Gogama Gold Inc. alleges it would not have sold the royalty or would have done so on different terms.

[3] Later, it became apparent to the plaintiffs that, at a time that preceded the option and joint venture agreement, Reid Keays, Danielle Giovenazzo, with the assistance of Falconbridge Limited and in collaboration with C. Michael Lesher and Laurentian University, had entered upon and taken samples from the property. They were not entitled to be there; they were not entitled to take samples. The samples were taken to Laurentian University analyzed and evaluated without the knowledge or consent of the plaintiffs. Evaluation determined that a geo-chemical means of analysis, which would avoid the expense of diamond drilling, was applicable to the property. This information was reported to Falconbridge Limited but not disclosed to the plaintiffs. C. Michael Lesher collaborated with James Mungall in the work that the latter proposed and to which the plaintiffs agreed.

[4] In the various actions, it is alleged that the plaintiffs acted to their detriment in their dealings with Canadian Royalties Inc. due to lack of knowledge of the activities of, and information developed by, the defendants and others who were proposed to be included as defendants.

THE FIVE ACTIONS

[5] The first and central action concerns the agreement entered into between, on the one hand, Ungava Minerals Corp. (subsequently, Nearctic Nickel Mines Inc.) and Ungava Mineral Exploration Inc., the plaintiffs in the action, and, on the other hand, the University of Toronto and James Mungall, the defendants. [2] This action (hereinafter, the “2002 Action”) was commenced by a Statement of Claim, dated June 4, 2002. It alleged that the defendants breached the agreement causing damages to the plaintiffs demonstrated by the unfortunate option and joint venture agreement they would not have entered into had they known the results of the testing that had been undertaken. On November 3, 2010, the court issued an order dismissing the action for delay. This was the second such order, the first having been made on September 12, 2008 and set aside, on consent, on February 5, 2009. On May 13, 2011, a motion was served to set aside the dismissal order made on November 3, 2010. It was returnable May 26, 2011 but, on that day, was adjourned sine die (without a day).

[6] The second action was launched by Gogama Gold Inc., as plaintiff, against the same two defendants as in the 2002 Action. [3] The two plaintiffs are related corporations. Glen Erikson, in one of his affidavits, identified himself as a former officer and director of Nearctic Nickel Mines Inc. [4] In the same affidavit, he referred to Gogama Gold Inc. as “my personal holding company.” [5] In the second action (hereinafter, the “2007 Gogama Action”), Gogama Gold Inc. alleges that, arising out of its ownership of the 1% net smelter returns royalty, it had an interest in the subject of the sampling and testing agreement that is at the core of the 2002 Action. It sold its interest. Had the agreement not been breached, had Gogama Gold Inc. known of the information that would have been forthcoming if the agreement had been complied with, the interest never would have been sold or would have been sold on decidedly different terms. The Statement of Claim in the 2007 Gogama Action was issued on August 7, 2007 and served on February 6, 2008. On October 1, 2009, it was dismissed by the court as abandoned.

[7] In the third action, Gogama Gold Inc. is, again, a plaintiff. It is joined by 918463 Ontario Inc., identified as a nominee for Gogama Gold Inc., in connection with interests it held, in 1994, in the property that was the subject of the contract that was alleged, in the 2002 Action, to have been breached. This action (hereinafter, the “2008 Gogama Action”) introduces as defendants, Falconbridge Limited, Laurentian University, C. Michael Lesher, Reid Keays and Danielle Giovenazzo. [6] It is alleged that these defendants were complicit in or part of the actions which represent the breach of contract that is at issue in the 2002 Action. In the 2008 Gogama Action, the Statement of Claim was issued on June 9, 2008. On September 4, 2008, an affidavit of documents was served by the plaintiffs. Statements of Defence were delivered on July 14, 2008 (C. Michael Lesher and Laurentian University), on July 16, 2008 (Falconbridge Limited and Danielle Giovenazzo) and on August 25, 2008 (Reid Keays). Later, during September 2008, the defendants took the position that the action should not proceed until a motion in the 2002 Action seeking the addition of defendants and the amendment of the Statement of Claim had been decided. On November 3, 2010, the court issued an order dismissing the 2008 Gogama Action for delay. A motion was brought to set aside the dismissal. On May 26, 2011, it was adjourned, sine die, by order of the Master.

[8] The fourth action was brought by Ungava Minerals Corp. (subsequently, Nearctic Nickel Mines Inc.) and Ungava Mineral Exploration Inc., as plaintiffs, against the University of Toronto, James Mungall, Laurentian University, C. Michael Lesher, Falconridge Limited, Anthony Green and Normand Dupras, as defendants. [7] The latter two were not referred to in the preceding three actions. The action was later discontinued as against them. This action was commenced to avoid the effect of the expiry of a limitation period while awaiting the hearing and results of the motion seeking to add new defendants (those listed immediately above) and to amend the Statement of Claim in the 2002 Action. This fourth action (hereinafter, the “2008 Ungava Action”) was commenced by a Notice of Action issued on December 1, 2008. A Statement of Claim was prepared but never filed. A motion was brought to extend the time for filing. This motion was adjourned, sine die, by the Master on May 26, 2011.

[9] The fifth action names the same parties as the 2008 Ungava Action. [8] It was commenced to preserve the position of the plaintiffs in view of the failure to file the Statement of Claim in that action. On May 28, 2009, a Notice of Action was issued, a Statement of Claim was filed but not served. The allegations in this action (hereinafter, the “2009 Ungava Action”) were the same as those intended to have been advanced in the 2008 Ungava Action and are substantially the same as those advanced in the 2002 Action. A motion to extend time for service of the Statement of Claim was begun. The Notice of Motion is dated March 23, 2012. At a case conference on January 31, 2012, the Master ordered that this motion, and the others directed to setting aside dismissal orders or to extending time for filing or service, should proceed before any other relief was sought.

THE MOTIONS BEFORE THE COURT

[10] Motions to set aside the dismissal of the 2002 Action, the 2008 Gogama Action and the motion to extend the time for filing the Statement of Claim in the 2008 Ungava Action were set to be heard by Master Haberman on May 26, 2011. On that day, all three motions were adjourned on consent. Concerns were raised by counsel and by the Master. Affidavits in support of the motions contained, on information and belief, facts of which counsel for the plaintiff was the source.

[11] As a result, the plaintiff determined to change counsel. The initial meeting between Glen Erikson and the counsel now representing the plaintiffs took place on June 27, 2011. There was a substantial amount of material to be reviewed. On October 12, 2011, counsel agreed to become the solicitor of record. The requirements of his retainer were completed on November 25, 2011 and by letter, dated November 29, 2011, he notified other counsel that he was assuming carriage of the proceedings on behalf of the plaintiffs.

[12] March 9, 2012 was set for the initial return of the two motions that were not before Master Haberman on May 26, 2011, being the setting aside of the dismissal of the 2007 Gogama Action and extending the time for service of the Statement of Claim in the 2009 Ungava Action. The sole relief sought, on that initial return, was to have those actions (and a third action later discontinued and, therefore, no longer relevant) transferred to case management in order that all five motions would be dealt with simultaneously by one case management Master. The applicable Notices of Motion were served by letters, dated December 19, 2011. By letter, dated December 20, 2011, sent to the “Registrar to Master Haberman”, counsel requested a case conference with the Master. In a case conference endorsement, dated January 31, 2012, Master Haberman considered the motions scheduled to be before the court on March 9, 2012 to be premature and ordered they be removed from the list. With a letter, dated March 30, 2012, counsel for the defendants were served with motion records for each of the five motions. It is these motions that were heard by me, beginning four years later, on May 30, 2016. I will make some comment with respect to what happened over the course of the intervening time later in these reasons.

WHO SHOULD HAVE HEARD THIS MOTION?

[13] I confess to some concern as to why these motions have come before a judge of the Superior Court rather than a Master. The Rules of Civil Procedure make clear that where a rule prescribes that a motion is to be heard by a judge, then it must be heard by one, but where a motion is to be dealt with by the court, it may be heard by a Master or by a judge (r. 37.02(2)(a)). In this case, be it to set aside an administrative dismissal (r. 37.14 (1)(c) and (2)) or to extend the time for service or filing of a Statement of Claim (r. 3.02 (1)), each of the five motions is to be considered by the court.

[14] In this case, the amount of material filed was daunting for what, at their root, are procedural motions. Quite apart from the motion records that were said to have been served on March 30, 2012, the plaintiffs filed Second, Third, Fourth and Fifth Supplementary Records. On behalf of the defendants, the University of Toronto and James Mungall, a two-volume Motion Record (dated October 9, 2015) was filed joining a five-volume Responding Motion Record of Proposed Defendants (dated October 19, 20012), a Supplementary Responding Motion Record of Proposed Defendants (dated December 20, 2012) and a two-volume Second Supplementary Motion Record of Proposed Defendants (dated June 13, 2013). In addition to all of this, there was also a six-volume Joint Supplementary Motion Record (dated March 30, 2016) filed on behalf of all parties. Each of the four counsel produced a compendium, presumably to simplify matters. From the plaintiffs, there was another six volumes; from the University of Toronto and James Mungall, there were three volumes; from Falconbridge and Danielle Giovenazzo, there were four volumes; and, from C. Michael Lesher and Laurentian University, there was one volume. I exclude from this list the motion records filed before March 30, 2012, which was before the present counsel of the plaintiffs served his five records for the five motions.

[15] These proceedings, or at least one of them, had been case-managed by Master Haberman. The record indicates that, initially, dates were set on the understanding that the motions would be heard by her. She had a history and an understanding of what had transpired. I cannot help but observe that it could have been better use of the court’s time if these motions had been heard by the Master rather than asking a judge to start again at the beginning. It is clear that the proceedings stretched the patience of the Master to the breaking point. All that does is confirm the problem the case presents. It has been going on for too long with little progress to show for it.

CONTEXT

[16] Over the course of the last years, a general concern has been expressed for the access to justice.

[17] Has coming to court become too complicated, too protracted and, in the end, too expensive for too many of those resident in Canada and subject to the jurisdiction of our courts? This issue has been the subject of a report undertaken, at the behest of the Chief Justice of Canada, by the “Action Committee on Access to Justice in Civil and Family Matters” under the leadership of Mr. Justice Cromwell. [9] The report established what was referred to as six guiding principles, the fourth of which was to simplify the process, make it coherent, proportional and sustainable:

Our current formal procedures seem to grow ever more complicated and disproportionate to the needs of the litigants and the matters involved. Everyday legal problems need everyday solutions that are timely, fair and cost-effective. Procedures must be simple and proportional for the entire system to be sustainable. To improve the system, we need a new way of thinking that concentrates on simplicity, coherence, proportionality and sustainability at every stage of the process. [10]

[18] Inherent in this direction is the requirement that the courts are to be more efficient. Efforts in this direction had been undertaken even before the report was issued. Some of these can be found in changes to the Rules of Civil Procedure [11] which became effective on January 1, 2010. These changes, among others, allow for more limited production and discovery, trials only if there is an issue requiring one, with additional powers to judges (such as evaluating credibility on summary judgment motions) to determine if there is such an issue. The court is to make orders and give directions that are proportionate to the importance and complexity of the issues and the amount involved. [12]

[19] This desire for efficiency is joined by the realization and acceptance that the courts are not an inexhaustible resource. The service they offer is to be used judiciously, thoughtfully, wisely and with prudence. The availability of the process the court offers is not open-ended:

There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it... [13]

[20] This case reflects on the concerns raised by the general direction towards greater efficiency, the appropriate use of the process of the courts and the values that affect its implementation.

THE ISSUE

[21] It is now fourteen years since the 2002 Action was commenced. Virtually no progress has been made in moving these proceedings to trial or any other form of resolution.

[22] The issue is whether, given the history and status of these actions, we have reached the point where the process of the court has been exhausted and is no longer available for the resolution of the issues raised. Have we reached the point where the delay is so “inordinate” and “inexplicable” that it can no longer be tolerated? In the stark words of the Court of Appeal, have we reached the point where “enough is enough” (see para. [19], above)?

[23] Suffice it to say, both sides blame the other for the circumstances in which these proceedings are now to be found. The plaintiffs, to their credit, acknowledge that there were errors made of which, at least part of, the delay was the product; however, their counsel is at pains to minimize their impact. It is the view of counsel for the plaintiffs that the defendants and those who are proposed to be defendants now seek to take advantage of the oversights of the plaintiffs’ prior counsel, as well as the defendants’ and proposed defendants’ own tactical conduct to prevent the merits from being heard. [14] For their part, the defendants blame the plaintiffs. It is their view that, among other things, the plaintiffs have failed to take any steps that would demonstrate an intention for any of the five actions to proceed to trial. [15]

THE HISTORY

(a) The arbitrations

[24] It is fundamental to the position of the plaintiffs that the presence of platinum group minerals was known to some or all of the defendants and proposed defendants prior to the option and joint venture agreement being entered into and that each of the defendants or proposed defendants was under an obligation to reveal the presence of valuable minerals to the plaintiffs. The defendants and proposed defendants deny that this is so. The defendants, the University of Toronto and James Mungall, deny the substance of the agreement alleged by the plaintiffs to have been entered into between them and those defendants. The testing to be undertaken was entirely for academic purposes and there was no understanding that the results were to be shared. The proposed defendants, Falconbridge Limited and Danielle Giovenazzo, deny all of the allegations made against them, rely on certain legal defences (expiry of the applicable limitation period) and complain about the lack of particularity in the Statement of Claim made against them. The defendants, Laurentian University and C. Michael Lesher, repeat much of what is said by the other defendants. [16]

[25] Canadian Royalties Inc. was the beneficiary of the option and joint venture agreement. In exchange for expenditures on mining exploration and the achievement of certain milestones, it received the option to acquire the 80% interest in the property. It was not made a party to any of the five actions. In the factum relied on by Falconbridge Limited and Danielle Giovenazzo, the following statement is made:

Soon after the [Joint Venture Agreement], [Canadian Royalties Inc.] conducted exploration which led to the discovery of valuable mineral deposits that had eluded the plaintiffs. [17]

[26] There is no attribution provided in support of this statement. Presumably, that would have to come from a representative of Canadian Royalties Inc. The question of what Canadian Royalties Inc. knew concerning the mineral resources on the property and when it obtained this information was dealt with in an arbitration between Ungava Minerals Corp. and Ungava Exploration Inc. as claimants and Canadian Royalties Inc. as the defendant. This arbitration was commenced on April 7, 2002, which is to say, two months before the 2002 Action. The arbitrator rendered his award on October 31, 2002. He dismissed the claim. Among other things, he found that Canadian Royalties Inc. did not have the information concerning the presence of a valuable mineral resource in its possession prior to the signing of the option and joint venture agreement. The award was homologated [18] by the Superior Court of Québec on December 3, 2002. By this order, the arbitration award is given full effect. [19] It became a judgment of the court.

[27] On February 18, 2003, Canadian Royalties Inc. commenced an action in Ontario to enforce the judgment so that the costs awards made in respect of the arbitration would be enforceable there. A Statement of Defence and Counterclaim, dated March 31, 2003, was filed in response. The counterclaim was directed, not only against Canadian Royalties Inc., but also a number of other individuals, another corporation, as well as the University of Toronto and James Mungall. The counterclaim outlined the theory of a conspiracy which included advising Canadian Royalties Inc. regarding knowledge of the presence of valuable minerals on the property prior to the signing of the option and joint venture agreement. This raised, again, the issue that had been dealt with in the arbitration by what, through the order homologating it, had become a judgment of the Superior Court of Québec. The counterclaim also alleged that Canadian Royalties Inc. had provided false and misleading evidence and withheld material facts in the arbitration. The counterclaim sought damages in the amount of $2 billion. Eventually, the costs order was paid and Canadian Royalties Inc. filed a discontinuance of the action. The counterclaim continued.

[28] In response, on June 16, 2003, both James Mungall and Canadian Royalties Inc., filed a motion in the case of James Mungall seeking an order to strike a number of allegations and, in the case of Canadian Royalties Inc., to strike or stay the entire claim on the basis of abuse of process and res judicata. The motion was scheduled to be heard on October 7, 2003. Affidavits were exchanged during July and August, 2003, and cross-examinations held in mid-August 2003.

[29] Following the cross-examinations, the Plaintiffs by Counterclaim (Ungava Minerals Corp. and Ungava Mineral Exploration Inc.), brought a motion for leave to file a supplementary affidavit. The motion for leave was heard on October 1, 2003. It failed. The motion alleged that certain pages of a report prepared in 1998 and delivered by Canadian Royalties Inc., in the context of the arbitration, were missing. It was alleged that these pages contained evidence of trespass onto and sampling of the property by Canadian Royalties Inc. in advance of the signing of the option and joint venture. The initial determination of the motion for leave was made by Master Haberman. She dismissed the motion. She was not prepared to accept the blanket statement that the maps and tables of contents were surreptitiously removed to keep the true facts from Ungava Minerals Corp. and Ungava Exploration Inc. [20] In finding that the missing pages had not been surreptitiously removed, the Master noted that:

By way of counterclaim, Ungava questioned the propriety of the arbitration award, on a number of grounds. They maintain that the arbitrator failed to follow basic rules of natural justice such that the decision contravenes public policy and that it should therefore [be] set aside. By way of counterclaim they again seek to revisit issues raised before the arbitrator. [21]

[30] Master Haberman began her endorsement by advising that she was hearing the matter on an urgent basis, as disposition of it was needed before the October 7, 2003 return date for the motion to strike allegations and the counterclaim. In fact, the motion was not heard on that day or at any time thereafter. The decision of the Master was appealed. The appeal was heard by Madam Justice Spiegel on October 7 and 8, 2003. In a decision, dated November 5, 2003, she upheld the decision of Master Haberman. [22] Ungava Minerals Corp. and Ungava Mineral Exploration Inc. sought leave to appeal the decision of Madam Justice Spiegel to the Ontario Divisional Court. On January 8, 2004, the motion for leave to appeal was dismissed by Mr. Justice Macdonald and the decision of Madam Justice Spiegel upheld. [23] Still not content, Ungava Minerals Corp. and Ungava Mineral Exploration Inc. made one further attempt to have this new affidavit placed before the court. Robert Wares and Cygnus Consulting Inc. are among the parties named as defendants to the counterclaim. They were not served until September 3, 2003. Like Canadian Royalties Inc., they brought a motion to stay or dismiss the counterclaim. In their responding record, Ungava Minerals Corp. and Ungava Mineral Exploration Inc. filed an affidavit that was “effectively identical to the affidavit that Master Haberman had found to be irrelevant and inadmissible…” [24] A motion to strike the affidavit was brought. It was heard by Madam Justice Karakatsanis [at the time, a Judge of this Court] on January 21, 2004 and her decision released two days later on January 23, 2004. While noting that it was unusual for an affidavit to be struck in advance of the substantive motion, itself being before the court, Madam Justice Karakatsanis granted the motion she heard. The affidavit was struck in its entirety. The judge made the following observation:

…Furthermore, the relevancy of the evidence has already been decided and reviewed by three judicial officers in relation to this motion in this action. The determination of relevance was made at the instance of the party that now seeks to in effect circumvent that finding after exhausting all avenues of appeal. Taken together these circumstances would result in a waste of further judicial and party resources and would in my view constitute an abuse of process. [25]

[31] A few weeks later, on March 2, 2004, Ungava Minerals Corp. and Ungava Mineral Exploration Inc. settled and consented to the dismissal of the counterclaim against all of the defendants named. In particular, and separate from the others, an order was obtained, on consent, dismissing the counterclaim as against the University of Toronto and James Mungall. [26]

[32] This was not the only effort undertaken by the plaintiffs to re-engage issues decided in the arbitration or to bring forward the “new evidence” that had been disallowed by Master Haberman, Madam Justice Spiegel, Mr. Justice Macdonald and Madam Justice Karakatsanis.

[33] After Master Haberman had dismissed the motion seeking leave to file the supplementary affidavit but prior to the decision of Madam Justice Spiegel upholding that decision, on October 31, 2003, Ungava Minerals Corp. and Ungava Mineral Exploration Inc. made a motion seeking the revocation of the judgment of the Superior Court of Québec that reflected the decision of the arbitration (the homologated judgment). As with the counterclaim, the motion alleged that the arbitrator had acted contrary to the provisions of natural justice and that the decision ignored evidence or was unsupported by the evidence. It was argued that, “as raised in the Ontario proceedings”, there was evidence which had come to the attention of the moving parties that proved the “allegations of trespass and which, if known, would have given rise to a different result.” [27] This was the same information which was the subject of the dismissal of the motion seeking leave to file a supplementary affidavit, the dismissal of the appeal of that motion and the dismissal for leave to appeal to the Divisional Court of Ontario.

[34] On December 17, 2003, the motion for revocation of the homologated judgment was dismissed. The judge, Mr. Justice Claude Champagne, “…held that, although the time limits provided for under the Code of Civil Procedure for the making of a Motion for Revocation are not strict and that the Court enjoys discretion to extend the limitation period, an Applicant must demonstrate that it was unable to act earlier”. He held that “… although [Ungava Minerals Corp. and Ungava Mineral Exploration Inc.] had alleged that [they were] unable to act earlier, other allegations contained in the [record before him] led to the contrary conclusion.” Mr. Justice Champagne pointed out that Ungava Minerals Corp. and Ungava Mineral Exploration Inc. had learned of the new evidence on August 21, 2003 while proceeding with the counterclaim in the Ontario action commenced by Canadian Royalties Inc. to enforce the costs award that was part of the homologated judgment. The facts underlying that evidence formed part of a report that had been on file with the Québec government since 1998. Mr. Justice Champagne concluded, in effect, that the requirements for hearing the motion for revocation on the merits had not been fulfilled. [28]

[35] Ungava Minerals Corp. and Ungava Mineral Exploration Inc. made one more attempt to pursue their goal of bringing forward the evidence initially denied by Master Haberman and confirmed in each of the decisions made thereafter. They invoked a second arbitration by way of a notice, dated November 14, 2003. Canadian Royalties Inc. brought a preliminary motion, dated August 6, 2004, to dismiss the fresh arbitration relying on the principle of res judicata and that the multiplicity of proceedings constituted an abuse of the legal process. The motion was granted. The arbitration was dismissed. Res judicata applied. The arbitrator went on to make a further observation:

While the multiplicity of proceedings is note-worthy, I do not have sufficient facts at hand to arrive at a conclusion concerning [the motives of Ungava Minerals Corp. and Ungava Mineral Exploration Inc.], and I have not done so. While I am not prepared to conclude that the line separating the aggressive pursuit of one’s rights from the abuse of the legal process has been crossed, it appears that that line cannot be very far away. [29]

[36] The decision of the first arbitration was released on October 31, 2002. Through all of the efforts undertaken by Ungava Minerals Corp. and Ungava Mineral Exploration Inc. for the two years and two months that followed (up to the decision made on December 20, 2004 dismissing the second arbitration) to raise and raise again issues that had been determined by the first arbitration, nothing was accomplished; no progress was made. The counterclaim was dismissed on consent, the motion to introduce new evidence and the appeals were all dismissed, as was the motion to revoke the homologated judgment and the attempt at a further arbitration.

(b) The 2002 Action begins…

[37] During this period, what was happening to the 2002 Action? Was its moving forward?

[38] Following the serving of a Reply on July 15, 2002, on November 21, 2002, the defendants served a Notice of Examination for Glen Erikson. The examination was to be conducted on February 3 and 5, 2003. The day following the service of the Notice of Examination (November 22, 2002), the defendants served a motion seeking security for costs. On February 13, 2003, Master Haberman granted the motion requiring that the amount of $20,500 be paid into court as security for costs on or before March 7, 2003. The action was stayed pending the payment being made. [30] While not much turns on it, the payment was not made on the date prescribed by the order. It was paid the following Monday (March 10, 2003).

[39] In the meantime, on January 15, 2003, the defendants served a Notice of Motion seeking to strike out paragraph 24 of the Statement of Claim. This was in furtherance of the decision in the arbitration which had been released on October 31, 2002 and homologated by the Superior Court of Quebec on December 3, 2002. The paragraph stated:

Rather, on or before January 12, 2001, the Defendants, either deliberately or negligently, informed Canadian Royalties Inc. (“CRI”) of the Finding [that the property contained platinum group minerals in significant quantities]. The transfer of this information was either oral or in writing and took place in such manner, times and places known to the Defendants and not the Plaintiffs.

[40] This was directly contrary to the finding made in the arbitration to the effect that Canadian Royalties Inc. was unaware of the presence of platinum group minerals on the property at the time it entered into the option and joint venture agreement. The motion to strike the paragraph was brought on the basis that the issue had been decided and was, thus, res judicata.

[41] The motion depended on the decision in the arbitration being sustained. Accordingly, it was adjourned, from time to time, pending the efforts of Ungava Minerals Corp. and Ungava Mineral Exploration Inc. to have that decision set aside or the issues reconsidered. The Notice of Motion suggests that the motion to strike paragraph 24 was initially to be heard on February 13, 2003, the same day as the order of Master Haberman requiring that security for costs be posted. There is correspondence in the record which indicates that the motion to strike was returnable March 3, 2003. This was at a time when the stay arising from the order for security for costs was in place. This being so, counsel for the University of Toronto and James Mungall (the defendants in the 2002 Action) wrote to the [then] current counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc. (the plaintiffs in the 2002 Action) indicating that, in the absence of the security being posted in time for the facta to be filed, the motion to strike paragraph 24 of the Statement of Claim would have to be adjourned. The motion was adjourned to March 28, 2003, then to May 20, 2003 and, on that date, adjourned by Master Haberman to October 7, 2003, the same date that the motion to strike the counterclaim brought in the action commenced by Canadian Royalties Inc. to enforce the homologated judgment was to be heard. What happened on October 7, 2003 is not readily apparent from the record. In a letter to Master Haberman, dated December 13, 2004, counsel for the defendants requested a further adjournment pending disposition of the arbitration proceedings underway in the province of Québec. (This was one week before the order dismissing the second arbitration concluded those proceedings (see para. [36], above).) Finally, on July 26, 2005, the motion to strike paragraph 24 of the Statement of Claim was granted on consent.

[42] So far as I am aware, there is no reason or explanation as to why it took more than half a year from the dismissal of the second arbitration (December 20, 2004) to the obtaining of the consent order granting the motion to strike paragraph 24 of the Statement of Claim (July 26, 2005. It would have been or should have been clear that, with the homologated judgment confirmed, the question of whether Canadian Royalties Inc. was aware of the presence of a valuable mineral resource on the property at the time its entered into the option and joint venture agreement had been decided and any attempt to vary that determination would be subject to res judicata. The order granting the motion to strike could have been obtained more quickly. Moreover, it was not until November 14, 2006, almost another 1.5 years, before the Amended Statement of Claim removing the offending paragraph was delivered.

[43] On August 10, 2005, the plaintiffs served a Notice of Change of Solicitor to Ronald Chapman.

[44] Prior to delivering the Amended Statement of Claim, on September 28, 2006, the plaintiffs delivered their Affidavit of Documents and Schedule “A” productions. Having received the Amended Statement of Claim, the defendants followed suit, on December 1, 2006, and delivered their Affidavit of Documents and Schedule “A” productions. They served an Amended Statement of Defence on December 20, 2006.

[45] On November 30, 2006, the parties entered into a consent timetable that required discoveries to be completed by May 1, 2007 and the matter to be set down for trial by October 1, 2007. The timetable was accepted by and made the subject of an order of Master Haberman on January 8, 2007.

[46] By letter, dated March 12, 2007, the counsel for the plaintiffs in the 2002 Action (Ungava Minerals Corp. and Ungava Mineral Exploration Inc.) requested production of a variety of reports authored by C. Michael Lesher and James Mungall. By letter, dated April 3, 2007, that counsel advised counsel for the defendants in the 2002 Action (the University of Toronto and James Mungall) of the plaintiffs’ desire to amend the Statement of Claim. A draft was provided, along with the caution that with the amendments and added parties being proposed, a new timetable would be required. By letter, dated April 23, 2007, counsel for the defendants responded. The defendants would not agree to the amendments and there would be no consent to any extension of the timetable. The letter indicated that if the plaintiffs intended to make these changes, a motion would be necessary and the registrar of Master Haberman should be approached for a date.

[47] As a result, on June 11, 2007, the plaintiff served the motion seeking orders, among others, to add as defendants to the 2002 Action, Laurentian University, Anthony Green, Normand Dupras, Falconbridge Limited and C. Michael Lesher, granting leave to examine those “proposed defendants” prior to the delivery of a new Amended Statement of Claim and to amend the timetable to extend the time for the examinations-of-discovery to take place (hereinafter, the “First Motion”). It was returnable June 28, 2007. [31] On that day, it was adjourned by Master Haberman.

[48] In his affidavit in support of the First Motion, Glen Erikson deposed that the plaintiff needed to examine these witnesses because “the Plaintiffs need the information which will be learned as a result of such… examination in order to properly make out claims against all proposed Defendants.” [32] He added a name. He also wished that Sarah-Jane Barnes, a person not previously referred to or mentioned, be examined. Sarah-Jane Barnes’ name appeared in correspondence between James Mungall and C. Michael Lesher. There was no suggestion that she was to be added as a party. It was alleged that she trespassed onto the property and obtained results from samples which were not communicated to Ungava Minerals Corp. and Ungava Mineral Exploration Inc.

[49] In another affidavit, this one sworn on August 31, 2007, Glen Erikson expanded the list of those the plaintiffs wished to examine to include:

(a) Glen Mullan, a representative of Canadian Royalties Inc. who was alleged to have trespassed onto and taken samples from the property; (b) Dany Houde, a manager of Abitibi Helicopter, that transported Canadian Royalties Inc. personnel to an area near the property; (c) the unidentified pilot of the helicopter; (d) an unidentified party present on the helicopter with the personnel from Canadian Royalties Inc.; (e) Reid Keays who was a colleague of C. Michael Lesher; and, (f) Peter Fischer, who had done work near the property in the past and who Glen Erikson alleged had informed him that he had seen a diamond drill on the property.

[50] A case conference, by telephone, took place on October 15, 2007. The order made by Master Haberman appears to acknowledge that at least some of the cross-examinations requested could take place:

Mr. Chapman shall advise all counsel by the end of October 2007 if there are any other non-parties he wishes to examine so the dates of those examinations can be scheduled. [33]

[51] As part of the case conference, the parties responding to the First Motion expressed their concern as to “the ambit of the plaintiff’s proposed pleading”. They were concerned that the proposed pleading would be sufficiently broad that it would include issues already determined “in the previous litigation”. I understand this to refer to the arbitrations and litigation in Québec involving Canadian Royalties Inc. In other words, it was suggested that Ungava Minerals Corp. and Ungava Mineral Exploration Inc. would try, yet again, to raise the issues determined in those proceedings. Counsel for those parties “was not prepared to indicate the pleading is not intended to be read as the responding parties fear.” As a result, Master Haberman acceded to the request of the responding parties and, over the protests of counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc., agreed that a six-week interval to prepare for the motion was “not an unreasonable request.” She concluded her endorsement with the following expression of concern:

In the interim, I urge all parties to carefully consider whether this is an issue which will have to be dealt with as it will certainly increase the costs to the party(ies) whose position does not prevail at the end of the day. [34]

[52] Master Haberman indicated that, once the dates for the cross-examinations to be conducted in preparation for the motion had been arranged, she would convene another telephone case conference in the hope of being able to schedule the First Motion.

[53] In a further order made on December 3, 2007, Master Haberman set April 2 and 14, 2008 as the dates for the hearing of the First Motion. Counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc. was still unprepared to disavow any intention of attempting to re-introduce issues dealt with in the litigation involving Canadian Royalties Inc. He was, as Master Haberman saw it, “equivocal” on the subject. He only said “the pleading speaks for itself”. The Master concluded that, by responding in this way, counsel had made the issue relevant and, thus, provided for release of information in order that the responding parties could be properly prepared to respond. The purpose was “to avoid having to adjourn this motion yet again, in order to argue a refusals motion following cross-examinations”. [35]

[54] C. Michael Lesher was cross-examined, in preparation for the First Motion, on January 31, 2008. Counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc. indicated that he wished to continue that cross-examination. He requested advice as to when he would receive answers to undertakings that had been made by or on behalf of C. Michael Lesher.

[55] Counsel also advised that, as part of the order being sought on the motion, he was instructed to enlarge the list of witnesses he wished to examine by adding Reid Keays and Danielle Giovenazzo.

[56] I pause to say that it is not clear to me why it was necessary to reintroduce the request to cross-examine Reid Keays, who was among those referred to in the affidavit of August 31, 2007.

[57] On April 24, 2008, a notice of motion seeking an order permitting the examination of Reid Keays and Danielle Giovenazzo, as well as a new version of the proposed Amended Statement of Claim, was served (the “Second Motion”). It was this motion where Nearctic Nickel Mines Inc. first appears in place of Ungava Minerals Corp. This followed the change of name of that plaintiff and the amendment to the title of proceedings. The motion was originally returnable on April 29, 2008 and was adjourned sine die to permit delivery of responding materials and cross-examination.

[58] The First Motion was not heard on either April 2 or April 14, 2008, as had been scheduled by Master Haberman in her order of December 3, 2007. The record does not reveal the circumstances in which it was determined that it could not proceed. What the record does make clear is that the responding parties (particularly the proposed but not yet added defendants) did not accept that they had been provided with information the Master had ordered to be produced as a result of the equivocation of counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc. as to the breadth of the proposed Amended Statement of Claim. Did it or did it not touch on issues that had been dealt with in the litigation involving Canadian Royalties Inc.? On January 28, 2008, a package of documents was delivered but, so far as counsel for the proposed defendants was concerned, it did not conform to the order of the Master. In addition, the cross-examination of Glen Erikson had begun on January 29, 2008, continued on January 30, 2008 but was not completed.

[59] I pause again, this time to point out that the timetable requiring that the trial be set down by October 1, 2007 (see para. [45], above) had, seemingly, been forgotten by the parties. No one noted, referred to or commented on its passing. The First Motion did request an amendment to the timetable that had been set but, with the rest of the orders requested, it remained outstanding. For his part, counsel for Ungava Minerals Corp. and Ungava Mineral Exploration Inc. noted:

…[T]he established deadline of October 1, 2007 to set the action down for trial passed, without notice by me and apparently without notice by other counsel or Master Haberman. [36]

(c) The 2007 Gogama Action begins…

[60] The 2007 Gogama Action began while the 2002 Action was ongoing. The Statement of Claim for this second action was issued on August 7, 2007. The defendants were the same. This action introduced Gogama Gold Inc. and concerned its separate claim for what is alleged was the improvident sale of its 1% smelter returns royalty to Canadian Royalties Inc. The Statement of Claim was served on February 6, 2008 and a Notice of Intent to Defend delivered on February 21, 2008. On May 12, 2008, the defendants (the University of Toronto and James Mungall) served a motion to stay the action pending the outcome of the First Motion (insofar as it sought to amend the Statement of Claim in the 2002 Action) or, in the alternative, to consolidate the two actions. No date for hearing was agreed to or set.

[61] In the 2002 Action, the cross-examinations being conducted in respect of the First Motion carried on. The cross-examination of C. Michael Lesher continued on May 1, 2008 and May 2, 2008. Additional cross-examination of Glen Erikson took place on May 15, 2008. This is said to have been with respect to the Second Motion. Counsel on behalf of the proposed defendants continued in his efforts to obtain what he believed was proper compliance with the order of Master Haberman to provide documents concerning the litigation with Canadian Royalties Inc. At the same time, the undertakings made by Glen Erikson at his cross-examinations were not satisfied.

[62] As matters transpired, the court issued a Notice of Action Dismissal, dated June 18, 2008. It was sent in error. A proper order dismissing the 2002 Action for delay was issued on September 12, 2008. This was followed by an order of Master Haberman made on November 25, 2008 in which she required that the dismissal order be set aside before any outstanding motions could be scheduled. On February 5, 2009, the dismissal order was set aside by Master Haberman on consent. The order setting aside the dismissal required that the 2002 Action be set down for trial by February 5, 2010 “failing which it shall be dismissed without further notice”. [37]

[63] At this stage, it is worthwhile asking what was being gained by the efforts to cross-examine these proposed parties and non-parties in advance of finalizing the Statement of Claim. In preparation for the motions now before the court, Glenn Erickson was cross-examined again on June 16, 2014. He said:

…[I]t was desirable to examine other people who probably had a lot of knowledge, in the same way that examining Dr. Lesher before adding him as a co-defendant, had proven to be extremely useful, in terms of getting useful information about material events. So I thought that similarly examining other people would be useful. … The whole idea would be that if one examined them one would very quickly get to know whether the theory and the ideas that were being espoused by the plaintiffs were realistic, and whether we, in fact, had a good grip of the facts, all with a view to moving the situation forward. [38]

[Emphasis added]

[64] Clearly, being desirable and being necessary are not the same.

[65] Counsel for the plaintiffs (Ronald Chapman) when he was cross-examined noted:

…[I]f I decided I wanted to make some amendments to the Statement of Claim, I didn’t necessarily need to have those examinations completed, because they had information from the documents produced by the University of Toronto.

…[I]t was preferable to examine them [the proposed defendants] before the amendments, but it wasn’t absolutely cast in stone that that had to be done. If I decided to make the amendments, I could have done that without having had those examinations. [39]

[Emphasis added]

[66] In short, the court’s time was being taken up by something that was not necessary. Counsel for the proposed defendants goes further. He submitted that this was improper and represents a misuse of the Rules of Civil Procedure. In taking this position, he relied on the following, found in Raponi v. John Doe, 2010 ONSC 3632 [40], where Master Dash said:

Finally, I pose the question whether it is ever appropriate for a plaintiff to seek productions from or examination of non-parties whom the plaintiffs believe are tortfeasors for the purpose of obtaining their evidence before adding them as defendants, even if the ostensible purpose is to determine whether to add them as defendants. Typically, the purpose of a Norwich order is to obtain the identity of unknown potential defendants from innocent non-parties with knowledge of the activities of those potential defendants. It is the purpose of non-party production and discovery under rules 30.10 and 31.10 to obtain relevant information from strangers to the litigation where the information cannot otherwise be obtained in the normal discovery process from the parties (and where the moving parties cannot otherwise obtain it from the non-parties). In my view it is not a proper use of the rules for non-party production and examination, and indeed for a Norwich order, to obtain discovery evidence from persons who are potential defendants in order to enable the plaintiffs to establish a case against those defendants. This evidence may be obtained as of right from those non-parties as part of the normal discovery process if and when they are made defendants to the action. If it were otherwise it would open the floodgates to plaintiffs seeking to examine persons against whom they may have a cause of action to “test the waters” before commencing action or adding them as a party.

I would add that it is also an improper use of the rules to seek examination of the non-parties who are not to be defendants (the passengers) in order to obtain their trial evidence, particularly at this early stage and prior to ascertaining whether the information known to the non-party witnesses can be obtained from the parties, once the driver and owner are added as defendants. [41]

(d) The remaining three actions begin…

[67] A few months before the dismissal order of September 12, 2008 was made in respect of the 2002 Action, on June 9, 2008, the Statement of Claim in the 2008 Gogama Action was issued. This was the action which sought to include in its original Statement of Claim the various proposed defendants. The Statements of Defence were delivered on July 14, 2008 (Laurentian University and C. Michael Lesher), July 16, 2008 (Falconbridge Limited and Danielle Giovenazzo) and August 25, 2008 (Reid Keays). Thereafter, counsel for the defendants took the position that, like the 2007 Gogama Action, the 2008 Gogama Action could not proceed until the outstanding motions in the 2002 Action were determined and that the three proceedings should be consolidated. Nothing of substance happened until November 3, 2010 when the court issued its order dismissing the 2002 Action for delay (see para. [5], above). On May 26, 2011, the Master adjourned the motion to set aside the dismissal order sine die.

[68] The 2008 Ungava Action began on December 1, 2008 with the issuance of a Notice of Action. The substance of the 2008 Ungava Action was similar to the proposed Amended Statement of Claim delivered with the First Motion in the 2002 Action. The plaintiffs were concerned that the limitation period might expire while awaiting the results of the First Motion. The Statement of Claim was not served or filed. The motion to extend the time for filing the Statement of Claim was served on June 5, 2009, returnable July 2, 2009. It was not heard on that day. The motion record that was served did not include a request to extend the time for service which had expired on June 1, 2009. In any case, the defendants in the 2008 Ungava Action had not been served with the Notice of Action. They took the position that the motion could not proceed until their clients had been served. A new date, September 4, 2009, was obtained. Service was still not completed on all defendants. The motion was adjourned again. Master Haberman refused to deal with this motion because the action was not being case managed and, therefore, the motion could be brought before any Master at any time. On January 10, 2010, Notices of Discontinuance, with respect to the 2008 Ungava Action as against Anthony Greene and Normand Dupras, were delivered to their counsel.

[69] The matter was again raised with Master Haberman. On January 27, 2010, the Master issued an order indicating that she was “… prepared to hear the motion to extend time for service in the 08 action, though [she was] not formally managing that action…[She had] been urging counsel to get on with this motion for well over a year now.” [42] By this order, Master Haberman set the date of June 18, 2010. The order set a schedule for the parties to meet in order to be prepared on the date prescribed. The order says that “THIS DATE IS PEREMPTORY TO ALL PARTIES”. On February 25, 2010, approximately two weeks after the date specified by Master Haberman in the schedule she had set for service of motion material by the plaintiffs, supplementary motion material was produced by their counsel. The motion to extend the time to file and serve the claim in the 2008 Ungava Action was not heard on June 18, 2010. The plaintiff served motion material on May 13, 2011 returnable May 26, 2011.

[70] The 2009 Ungava Action began with a Statement of Claim issued on May 28, 2009. This action is substantially similar to the 2008 Ungava Action. It was brought against all the defendants and proposed defendants. Counsel for the plaintiffs was “concerned at the possibility that [his] request for an extension of time in which to file the Statement of Claim in the 2008 Ungava Action might be denied and that in the interim the passage of time might further compromise [his] clients’ position with respect to additional possible limitation defences.” [43] In order to avoid this possibility, he commenced the 2009 Ungava Action.

[71] The Statement of Claim was issued and filed but not served.

(e) The Actions continue…

[72] In the 2002 Action, following the Order of Master Haberman made on February 5, 2009 setting aside the dismissal order of September 12, 2008, nothing much happened for nearly a year. On September 16, 2009 and, again, on October 19, 2009, counsel for the plaintiffs wrote to Master Haberman with respect to scheduling a hearing of the First Motion and the Second Motion, as well as the motion in the 2008 Ungava action, to extend time for filing and service. Master Haberman issued case management orders, dated October 19, 2009, October 26, 2009, January 14, 2010 and January 27, 2010, culminating in a timetable for the hearing of all of the Second Motion as well as certain parts of the First Motion. They were to be heard on June 18, 2010. This was the same date set by the same case management order (January 27, 2010) as the motion to extend time in the 2008 Ungava Action. The direction that these motions were peremptory to all parties applied to these motions as it did to that one (see para. [69], above).

[73] Again, one has to wonder what happened to the schedule. In her order of February 5, 2009, Master Haberman had required that the action be set down for trial one year later on February 5, 2010. As with earlier date of October 1, 2007 which was missed (see para. [59], above), no one seems to have noticed. Apparently, it was not noted by any counsel during the case conferences, nor was it addressed in the case management orders issued by Master Haberman. In the course of oral submissions, it was suggested that everyone involved understood that it was never realistic to anticipate that the matter could be set down for trial by February 5, 2010. This is not an acceptable answer or demonstrative of an appropriate approach to an order made by the court.

[74] The motions were not heard on June 18, 2010. They were the subject of an order of Master Haberman made on May 11, 2010 and were adjourned by her at that time. I quote her order at length because it speaks to her frustration and how this proceeding failed to respond to the general need for efficient and expeditious use of the process of the court as referred to at the outset of these reasons. Having referred to the fact that these motions were to be peremptory, Master Haberman went on:

The deadline for responding materials to be served was March 12, 2010. Though that did not occur, I heard nothing at all from Mr. Chapman to let me know about the problem or from any of the delinquent parties to ask for further time. In fact, I was totally in the dark that this full day of court time I had reserved for this matter was in jeopardy until I received Mr. Henein’s fax on May 5, 2010, well past the ‘earliest opportunity.’

Despite the clear terms of Rule 1.09:

Yesterday afternoon, Mr. Chapman purported to file an accordion file full of materials, some of his, some prepared by others, presumably for this motion. I have no idea why. The onus is on him to pick them up from my registrar THIS WEEK and to file them in the ordinary course. We do not have the facility here to hang on to voluminous materials for several months;

This morning, I entered my chambers to find a large two-volume brief from Mr. Gosnell identified in his cover letter as his ‘written submissions’. Not surprisingly, this sparked off submissions from Mr. Chapman. I very much doubt either counsel consented to the other filing these materials and leave was not even sought, let alone granted by me to file them. Case conferences are intended to deal with issues that are not contentious, not anything that requires a two-volume companion to written submissions. As I already had a full docket yesterday and today, I had no opportunity to review any of these unsolicited materials.

Counsel advised me today that the timetable went off the rails in March as some, but not all of the responding materials were filed in compliance with the timetable. As a result, cross-examinations could not be completed.

Defence counsel point to late service of the experts’ reports without attachments as the culprit. These reports appear to opine as to whether or not the plaintiff had any interest in the land in issue at the time the mines were productive. The plaintiff relies on Quebec law as the source of their interest so the defendants and proposed parties now say they required responding experts’ reports. Further, as the parties had not completed service of their responding materials, those parties that failed to serve theirs should now be given an added opportunity to do so.

Mr. Chapman has apparently had these reports for about 2 years, yet he held onto them, not intending to produce them until 90 days before trial. I suggest he review the new rules regarding expert reports (which apply here notwithstanding the age of the action) and that he consider what chance he has of a successful resolution of the case short of trial if he holds his cards so close to his chest.

Mr. Henein also advised that he is confused as materials for both motions have been served without any indication as to what materials are preferable to which of the two motions. That has to be remedied forthwith.

In view of what has transpired with respect to the last fixed peremptory date and the fact that no one alerted me to the need to adjourn it (so that I could use the date for another long motion, unlikely to now happen at this late date) I am reluctant to give out another full day of court time until I know the parties are really ready to proceed. Mr. Chapman is reminded that delay is a factor with respect to both of his motions. [44]

[75] In the end, the Master set another schedule but not a date for the hearing. Rather, she advised that, when all the steps outlined were completed, a further case conference could be requested, at which time a schedule for the exchange of facta would be put in place and a date for the hearing of the motion set.

[76] The First Motion and the Second Motion were never heard. The motion to extend time for filing and service of the Statement of Claim in the 2008 Ungava Action is one of the motions considered in these reasons.

[77] The experts’ reports to which Master Haberman referred in her endorsement quoted above were the source of yet more motions. The claim in the 2002 Action relies on the law in Québec. It asserts claims for trespass. Falconbridge Limited filed a report detailing the applicable laws of trespass in Québec. It is said that the tort is unknown in Québec. The plaintiffs did not respond until April 27, 2010 when their counsel sent two expert reports, both dated May 30, 2008, which is to say, two years before they were delivered. These reports were prepared by Gilles Reny. It transpired that, effective March 1, 2010, Gilles Reny had been appointed a judge. On May 27, 2010, counsel for Falconbridge wrote to counsel for the plaintiffs pointing out that Gilles Reny would, as a result of his appointment, be unable to participate in the proceeding. The plaintiffs did not withdraw the affidavit. Falconbridge and Danielle Giovenazzo brought a motion to expunge it. The motion was dated July 29, 2010. It was to be heard by Master Haberman on October 14, 2010. The plaintiffs “… did not consent to the relief requested by Falconbridge until oral argument on October 14, 2010, following which argument proceeded on the issue of costs.” [45] For his part, Glen Erikson deposed in an affidavit sworn on October 6, 2010 that, as of August 17, 2010, he was advised that Gilles Reny would not be able to take part and that he “…promptly consented to the Reny Reports being withdrawn”. [46] This does not explain why it took until the hearing of the motion for this to become known or acted on. In her endorsement, Master Haberman noted that while it was clear that the responding party was, by August 31, 2010 prepared to withdraw the respondent affidavit, albeit with conditions, the work of preparing for the motion continued and discussions toward settlement went on. She noted:

Once the witness was appointed to the Bench, it ought to be clear to everyone that he was no longer available for cross-examination. [47]

[78] After the affidavit of Gilles Reny was withdrawn, on December 2, 2010, the plaintiffs served another expert report; this one written by Daniel M. Kochenburger. Counsel for Falconbridge Limited and Danielle Giovenazzo objected to this prospective expert. He was ineligible because he was, at the time, counsel to the plaintiffs in some of their proceedings in Québec involving Canadian Royalties Inc. The plaintiffs refused to agree to withdraw this report. They maintained that position for more than a year, until February 2013, when they served two new expert reports.

[79] On November 3, 2010, the court issued the second order dismissing the 2002 Action. Counsel for the plaintiffs advised that there would be motions to set aside the dismissal order, as well as the dismissal order of the same date applicable to the 2008 Gogama Action. The motions were to be heard on May 26, 2011. The motion to extend the time for filing and serving the Statement of Claim in the 2008 Ungava Action was also set for hearing on that day (see para. [69], above). The affidavit material on which the plaintiffs relied was sworn by a clerk. Counsel (Ronald Chapman) was the source of the information and belief on which she relied in deposing to certain facts. As Master Haberman said:

Counsel can either be the witness or counsel but not both. [48]

[80] The motions were adjourned on consent.

[81] Shortly thereafter, on June 29, 2011, the plaintiffs’ present counsel was retained by the plaintiff to review the file. This having been done, he was retained and Notices of Change of Solicitor were delivered on November 30, 2011.

[82] As of that date, the status of each of the motions and actions was as follows:

• First Motion and the Second Motion, both brought within the 2002 Action stood adjourned from the June 18, 2010 date. No new date had been set.
• The 2002 Action and the 2008 Gogama Action remained dismissed as a result of the orders of the court made on November 3, 2010. The motion to set aside those dismissals stood adjourned by the order of Master Haberman made on May 26, 2011. No new date had been set.
• The 2007 Gogama Action was dismissed as a result of the court order made on October 1, 2009. There had been some discussion in respect of the motion to stay pending the outcome of the First Motion but no agreement had been made and no action taken.
• In the 2008 Ungava Action, the motion to extend the time for filing and serving of the Statement of Claim remained adjourned from the May 26, 2011 order of Master Haberman. No new date had been set.
• The 2009 Ungava Action was inactive. No motion has been brought to extend time for service of the Statement of Claim.

(f) The Revival motions…

[83] Counsel for the plaintiffs (their present counsel) obtained as a motion date, March 9, 2012. It was available to all counsel for the initial return of motions concerning two actions that were not part of the proceedings before Master Haberman, being the 2007 Gogama Action and the 2009 Ungava action. The sole remedy sought on this return was to have those actions (and another which is no longer before the court) transferred to case management so that all of the actions could be dealt with simultaneously by one case management Master. By letter, dated December 19, 2011, counsel for the plaintiffs served the Notices of Motion. By letter, dated December 20, 2011, to the registrar of Master Haberman, counsel advised the Master of the status of the these matters and of his intentions, and seeking a case management conference for directions. Master Haberman issued a Case Conference Endorsement on January 31, 2012. She considered the motions scheduled for March 9, 2012 to be premature and ordered the Scheduling Unit to remove them from the list:

As matters stand it appears that the plaintiff is in default in at least 5 if not all 6 of these actions. Three have already been dismissed and at least two need extensions. As matters stand, the court should not be asked to do anything or hear any motion until motions to set aside the dismissals have been brought and have succeeded. [49]

[84] The Master referred, again, to the limited resources of the court:

The assumption in all of this is that the relief sought will be granted. There are a series of criteria which must be addressed before the court will take anything into [case management], more stringently applied now in the view of the very limited resources allocated to this part of the court. [50]

[85] The Master ordered counsel for the plaintiffs to contact her for the purposes of scheduling any long motions to set aside dismissals, but not until preliminary motions dealing with evidentiary issues that might arise on those motions had first been dealt with. She instructed that counsel “should not write her again until he has a viable plan”. [51]

[86] What followed thereafter was the serving and filing of motion records. Essentially, it took two years to complete with the last supplementary record of the plaintiffs being delivered after the completion of the cross-examinations. The court record includes the following:

• March 30, 2012, on behalf of the plaintiffs, motion records for all 5 of the revival motions. The motion records contained identical evidence. Each included a two-volume affidavit of Ronald Chapman and a one-volume affidavit of Glen Erikson. In a letter of the same date, which presumably accompanied delivery of these motion records, counsel for the plaintiffs outlined his understanding of the material already received in evidence with respect to each of the three motions that had been before Master Haberman on May 26, 2011. As I understand it, these were to be included in the record as these motions moved forward. The letter indicated that the plaintiffs did not intend to proceed with the sixth action and that a Notice of Discontinuance would be provided “under separate cover”.
• On October 19, 2012, counsel for Falconbridge Limited and Danielle Giovenazzo served a five-volume responding record.
• On October 31, 2012, counsel for Laurentian University and C. Michael Lesher served a motion record, as did counsel for the University of Toronto and James Mungall.
• On March 19, 2013, counsel for the plaintiffs served a “Second Supplementary Motion Record”.
• On June 13, 2013, counsel for Falconbridge Limited and Danielle Giovenazzo delivered their “Second Supplementary Motion Record”.
• On September 18, 2013 counsel for the plaintiffs delivered a “Third Supplementary Motion Record”.

[87] The parties all agreed that, with these various motion records served, no additional material was necessary. Each of the responding parties confirmed that they did not intend to file anything further [52]. Despite this, further material continued to flow, including:

• the plaintiffs’ “Fourth Supplementary Motion Record”. It is undated but contains an affidavit sworn by Glen Erikson on June 2, 2014;
• the plaintiffs’ “Fifth Supplementary Motion Record”. It is undated but is accompanied by an affidavit of service saying that copies directed to each of the three counsel acting for the defendants was given to a courier on September 11, 2015; and,
• a six-volume Supplementary Motion Record from counsel for C. Michael Lesher and Laurentian University, dated October 8, 2015.

[88] One has to wonder why this took so long. Each side blames the other.

[89] Upon delivery of the initial motion records by the plaintiffs (March 30, 2012), counsel for Falconbridge Limited and Danielle Giovenazzo asserted that an affidavit of Glen Erikson sworn on March 22, 2012 effected a waiver of privilege. The waiver involved two law firms: the plaintiffs’ previous counsel (Ronald Chapman) with respect to the conduct of all related litigation after May 15, 2008, and Teplitsky, Colson, which had been retained to assist Glen Erikson in understanding the status of the proceedings. Counsel for Falconbridge Limited and Danielle Giovenazzo complained that it took three months for the material to be provided.

[90] For his part, counsel for the plaintiffs complained that it took nine months for all of the responding motion records to be delivered (from March 30 2012 to December 21, 2012). In his factum, counsel for the plaintiffs noted that: “none of the materials delivered by any of the responding parties referred to the Chapman Communications and Teplitsky Communications except for an affidavit sworn by Jannette Drost, a law clerk. Counsel for the plaintiff disagreed with that affidavit. In his view, the delay in providing the “privileged material” should not be counted from the day of the affidavit said to waive privilege was delivered, but from the day all responding counsel confirmed they wanted that material. The difference in the “delay” is two months as opposed to three days out of the fourteen years since the 2002 Action was commenced. Counsel for the plaintiff went on to complain about other alleged inaccuracies in the affidavit sworn by Jannette Drost.

[91] Counsel for the plaintiff determined that a response to that affidavit was required. Counsel complained that Ronald Chapman did not co-operate. The response was delivered with the material of March 19, 2013 through an affidavit of Glen Erikson, sworn on March 18, 2013. Counsel for Falconbridge Limited and Danielle Giovenazzo felt that the challenges to the affidavit of Jannette Drost required a response in return. The response is found in the affidavit of Tara Jakic, sworn June 13, 2013, found in the material delivered June 14, 2013.

[92] The responding record delivered by counsel on behalf of Falconbridge Limited and Danielle Giovenazzo (the material dated October 19, 2012) included the affidavit of Patrice DesLaurier. It advanced an expert opinion regarding the law of Québec. It asserted that the facts alleged do not establish a cause of action against these two defendants. Counsel for the plaintiffs was of the view that this had to be answered. Their Second Supplementary Motion Record, in the form of affidavits sworn by David Crevier and Jean-Paul Lacasse, contained that response. As a result, a second affidavit from Patrice DesLaurier was provided in the Second Supplementary Motion Record of Falconbridge Limited and Danielle Giovenazzo (June 14, 2013) in which he reasserts his opinion that the proposed claim does not disclose a cause of action in Québec law. Not to be outdone, in the plaintiffs’ Third Supplementary Motion Record (September 18, 2013), further supplementary affidavits of David Crevier and Jean-Paul Lacasse appear.

[93] It is during this period that the Second Motion (seeking the examination of Reid Keays and Danielle Giovenazzo) was abandoned. This apparently occurred on August 13, 2012 albeit, when cross-examined, Glen Erikson indicated he had instructed Ronald Chapman that this be done sometime earlier. [53] With respect to the First Motion, the plaintiffs’ present counsel, in a letter dated July 13, 2012, indicated that the motion had become redundant and that it would not be necessary to proceed with it following the outcome of the motions to revive the five actions.

[94] In preparation for these motions, extensive examinations and cross-examinations took place as follows:

• On April 24, 2014, the respondents examined Jennifer Mathers McHenry of Teplitsky, Colson;
• On April 23, 2014 and on April 25, 2014, the respondents cross-examined Lisa Whiting, the law clerk of Ronald Chapman;
• On April 25, 2014, November 10, 2014 and February 2, 2015, the respondents cross-examined Ronald Chapman;
• On June 16, 2014 and June 17, 2014, the respondents cross-examined Glen Erikson;
• On July 24, 2014, the plaintiffs cross-examined Jannette Drost; and,
• On August 15, 2014, the plaintiffs cross-examined Tara Jakic.

[95] Undertakings were made and further material produced:

• By letter, dated August 6, 2014, answers from Jennifer Mathers McHenry were delivered. Further material was produced by letter, dated September 12, 2014. These included material from memoranda, telephone call notes and dockets.
• On June 11, 2014 and September 14, 2014, materials requested of Lisa Whiting and Ronald Chapman were produced. These included material from Ronald Chapman’s “notes” file and related correspondence;
• By letter, dated September 15, 2014, materials requested from Glen Erikson were delivered. These included materials from Glen Erikson’s correspondence file with Ronald Chapman;
• On June 22, 2015 and August 25, 2015, additional materials from Ronald Chapman and Lisa Whiting were delivered.

[96] On August 21, 2015, counsel for the plaintiffs wrote Master Haberman to schedule the five motions to revive the five actions. The Master responded. She declined to schedule a case conference:

Let me begin by expressing surprise at hearing from [counsel for the plaintiffs] at this late date, as it has been more than 3 ½ years since this matter last came before me in any context, despite the fact that three of these actions have been dismissed years ago and two of them request extension orders.

To begin with, a review of the case history makes it clear that I WAS NOT prepared to take the additional matters into case management at the time counsel were last in contact. To simply ignore that and write to me for directions in the non-case managed actions now is contrary to both the letter and spirit of Rule 1.09. Where I come from, we call this “chutzpah”.

…Instead, in late January 2012 [counsel for the plaintiff] wrote to advise me that he had schedule a motion in three related action, [sic], including this one, to have the others moved into case management to be managed with this one. I am at a loss as to why it was assumed I would hear a motion to move anything into case management at that time, given the huge reduction in our support staff around that time, particularly on the basis that it would then be managed with an action that had been dismissed and never revived…

Yet [counsel for the plaintiffs] writes to me now to seek directions regarding five files, 4 of which are not case managed. The only one that is was dismissed almost 5 years ago so it is not even a “live” action…

I am no longer prepared to manage this action and hereby order it out of case management. It seems my advice has repeatedly fallen on deaf ears and the fact that counsel would send me [a] 5+ page letter out of the blue, involving mostly matters that do not concern me at all, and after more than three years of silence is nothing short of astonishing. [54] . . .

[97] During December 2015, 4 ½ years after the adjournments of May 26, 2011, the plaintiffs scheduled the motions through the auspices of the motion scheduling court.

[98] Following cross-examinations and just two months before these motions were heard, a “Joint Supplementary Motion Record”, dated March 30, 2016, was filed apparently on behalf of all parties. It had six volumes.

[99] The 5 motions were heard for five days commencing May 30, 2016.

ANALYSIS

(a) Onus

[100] It is generally understood that the onus is on the plaintiff to see that an action proceeds. It is the plaintiffs that have initiated the proceeding and sought the assistance of the court:

The primary responsibility lies on the plaintiff to move the case forward. [55]

[101] This does not suggest that the actions of the defendant are not relevant:

While [the Court of Appeal of Ontario] has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along. [56]

[102] This speaks to the general direction that our collective concern for access to justice requires an efficient use of the processes the court offers:

The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice.

[103] It is for this reason that:

… although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list. [57]

(b) This case…

(i) The attempts to re-litigate

[104] This case began with the start of the 2002 Action on June 4, 2002. In the 14 years since, little progress has been made. For most of that time, it was understood that the pleadings were incomplete. Only with the determination that the First Motion was redundant was that idea displaced. Presumably, the motion to consolidate the actions which is to follow any order that would allow the actions to continue will incorporate all of the defendants and proposed defendants and the claims made against them, all of which is to say even now after fourteen years not even the Statement of Claim is complete.

[105] The problems with the way this proceeding has been undertaken start at the outset. There is nothing wrong with allowing an action in Ontario to be stayed, or to wait, pending the outcome of an arbitration or judgment in Québec, particularly where the proceeding in that province may determine an issue of relevance to the action here. Where the difficulties arise is in the failure to accept the answer and, instead, to continue on attempting to have those issues re-heard through a counterclaim, a belated effort to revoke the judgment in Québec and through a baseless attempt to engage in a further arbitration.

[106] In the case of the counterclaim, it became obvious that the real purpose was an attempt to re-litigate the issue of whether Canadian Royalties Inc. was aware of the presence of a valuable mineral resource on the property at the time it entered into the option and joint venture agreement. The counterclaim was valued at $2 billion. It was continued in the face of the payment of the costs order which was the subject of the main action. When the defendants moved to strike the counterclaim, the plaintiffs attempted to file the further affidavit following the completion of cross-examinations. Rather than accepting the determination of Master Haberman that the test necessary for such an indulgence had not been met, the plaintiffs continued on with the appeal to Madam Justice Spiegel and the motion for leave to appeal to the Divisional Court. For her part, the Master understood exactly what was going on (see para. [29], above). The plaintiffs were seeking to revisit the issues raised before the arbitrator. With the motion dismissed, the purpose identified, the decision upheld on appeal and leave to appeal refused, the plaintiffs were not prepared to accept the determination of the court. They attempted to file the same material in the parallel motion brought by Robert Wares and Cygnus Consulting Inc. Madam Justice Karakatsanis, on hearing the motion to strike that affidavit, identified this as an attempt to circumvent the finding of Master Haberman, as a waste of judicial resources and as an abuse of process (see para. [30], above). This was a misuse of the court, its process and its time. The fact that there was nothing of substance in the counterclaim is confirmed by the fact that this last attempt to file the affidavit was followed by its consent dismissal.

[107] The effort to bring out this evidence did not end. It was the foundation for the motion to revoke the homologated judgment and, it follows, the arbitration award on which it was based. Again, the attempt to rely on this “new” evidence was refused. The evidence was readily available and had been on file with the province of Québec since 1998 (see para. [34], above).

[108] The plaintiffs fared no better with their effort at a second arbitration. The issue had been determined (res judicata). The arbitrator, like Madam Justice Karakatsanis before him, raised the spectre that this was passing by the aggressive pursuit of rights and coming close to the abuse of the legal process (see para. [35], above).

[109] Even this was not enough. When the First Motion included a proposed amendment to the Statement of Claim of the 2002 Action, counsel for the plaintiffs (at that time, Ronald Chapman) refused to disavow the concern that the pleading was broad enough to include a reconsideration of issues that had been determined by the arbitrator and the judgment that had been homologated. The court requires more than hiding behind the fatuous phrase: “The pleading speaks for itself.”

[110] As a result of this failure of counsel for the plaintiffs to step back from the possibility that the amended claim would be used to reintroduce issues dealt with in the arbitration, the Master felt obligated to allow for the production of information necessary for the defendants to deal with that question. The acceptance that those issues had been decided, their further consideration dismissed as res judicata and identified as approaching abuse of the court would have rendered this unnecessary. As it was, the information was not produced by the plaintiffs, or at least not to the satisfaction of the defendants.

(ii) The motion to strike paragraph 24 of the Statement of Claim

[111] In the context of the 2002 Action, the upshot of the determination that Canadian Royalties Inc. was unaware of the presence of any valuable mineral resource on the property at the time it entered into the option and joint venture agreement was the continuation of the motion to strike paragraph 24 of the Statement of Claim. The allegation found in that paragraph was decided by the finding made by the arbitrator, continued in the homologated judgment and upheld by the various judges who came to consider the matter thereafter. It was six months after the determination of the second arbitration (December 20, 2004) before the consent order granting the motion to strike the paragraph Statement of Claim was granted (July 26, 2005) and another 1.5 years before the amendment was put in place (November 14, 2006).

[112] This was more than four years since the 2002 action had been commenced (June 4, 2002) and more than four years since the decision of the first arbitrator was homologated (December 3, 2002).

(iii) Cross-examination of parties and non-parties

[113] Only with the amendment removing the allegation that the defendants had informed Canadian Royalties Inc. of the presence of a valuable mineral resource on the property before the option and joint venture agreement from the Statement of Claim did the plaintiffs turn their minds to the remainder of their claim. In effect, they sought to use the process of the court to provide the means for them to investigate the substance of those claims. This was admitted by Glen Erikson. He acknowledged the plaintiffs’ purpose in examining the witnesses was to obtain information to properly make out the claims (see para. [63], above).

[114] The First Motion and the Second Motion sought the right to interview an array of people some parties, some not, some whose participation could be described as vague, if not speculative (the manager of a helicopter company that transported people to an area near the property) and two who could only be identified by the nature of their suspected participation (the unidentified pilot of the helicopter and an unidentified party present on the helicopter).

[115] The First Motion and the Second Motion were delayed:

• by the time it took to complete the cross-examinations of C. Michael Lesher and Glen Erikson;
• as a result of the dispute over whether the plaintiffs had complied with the order of Master Haberman requiring the production of the material that would enable the defendants to respond to any effort to extend the Statement of Claim to reintroduce any issues dealt with in the Québec litigation;
• by the order of September 12, 2008 dismissing the action; and,
• the motions to reinstitute the action.

[116] This took the proceeding out another 2 years from the issuance of the Statement of Claim in the 2002 Action. Six years had gone by and the plaintiffs were trying to get the court to give them the tools to investigate the viability of the lawsuits.

[117] The time involved was taken up attempting to obtain an order to cross-examine witnesses which, the representative of the plaintiffs acknowledged, while “preferable”, was not necessary. Counsel for the plaintiffs conceded that any amendments to the Statement of Claim could have been made without these examinations and where there is some reason to consider the conduct of them was an abuse of the process of the court.

[118] This misplaced effort was continuing when the 2002 Action and the 2008 Gogama Action were dismissed for delay by administrative orders of the court (November 3, 2010). The effort to examine these witnesses only ended when present counsel of the plaintiffs determined that the Second Motion was not necessary and that the First Motion had become redundant.

(iv) Amendments to the Statement of Claim in the 2002 Action

[119] The failure of the plaintiffs to come to grips with the substance of their claim and to properly use the process of the court to move it forward (for example: discovery) is marked by the appearance of a succession of proposed amendments to the Statement of Claim and the failure to meet any of the timetables or scheduled dates set by the court.

[120] In the 2002 Action, there have been nothing less than seven different versions of the Statement of Claim (the original, amended and proposed), as follows:

• June 4, 2002, the original Statement of Claim
• June 10, 2003, an Amended Statement of Claim
• November 10, 2006, an Amended Amended Statement of Claim
• April 3, 2007, a Fresh As Amended Statement of Claim (proposed)
• June 6, 2007, an Amended Statement of Claim (proposed) and
• April 25, 2008, a New Amended Statement of Claim (proposed), and now, in company with these motions,
• A consolidated claim joining the actions in one proceeding.

[121] The problem of being unable to provide the court or the other parties with finished pleadings was augmented by the nature of the 2007 Gogama Action and the 2008 Gogama Action. The first introduced a new claim (the improvident sale of the 1% net smelter royalty). The second introduced several new defendants. This was another way to amend the claim.

(v) Timetables

[122] Timetables and schedules were ignored. Orders of the court mean something. Timetables are set for a purpose; the idea is that they will be followed so that proceedings will move forward at an accepted and, for the most part, agreed-to pace. A timetable was agreed to between the parties on November 30, 2006 and approved by Master Haberman in an order made on January 8, 2007. The 2002 Action was to be set down for trial by October 1, 2007. By April 3, 2007, counsel to the plaintiffs was indicating a desire to amend the Statement of Claim and suggesting a new timetable would be required. The defendants did not agree and, by June 11, 2007, a motion brought to amend the timetable. When October 1, 2007 passed by, no one noticed. Although defendants have a role to play, it is still primarily the responsibility of the plaintiff to see that an action moves towards trial.

[123] On February 5, 2009, as a condition of setting aside the order of September 12, 2008 dismissing the 2002 Action, a new date for setting the action down for trial was set (February 5, 2010). Again, it was suggested by the plaintiffs’ present counsel that everyone would have understood this was not possible. Certainly, no one seems to have done much and, like the October 1, 2007 date, no one seemed to be aware when this requirement was not met. Rather, the Master set June 18, 2010 as the date for the hearing of the Second Motion, parts of the First Motion and the motion to extend time for filing and service in the 2008 Ungava Action. A timetable to complete the necessary steps was put in place. It was not complied with despite the fact that the date was made peremptory to all parties. The Master’s frustration was readily apparent in the Endorsement she wrote. In particular, she expressed concern over the failure of counsel to keep her informed and the loss of otherwise available court time that occurred as a result (see para. [74], above).

[124] Three motions were to be heard on May 26, 2011. The motions to set aside the orders dismissing the 2002 Action and the 2008 Gogama Action and the order to extend the time for filing and serving the Statement of Claim in the 2008 Ungava Action. They could not proceed because counsel had, in effect, made himself the witness when the facts relied on originated with him and were sworn to by a legal clerk on information and belief provided by counsel. Why counsel put himself in this position, on motions where his actions were central to the problem, why objection was only made when the parties gathered for the motions are not things that have been explained. The impact was another scheduled date lost.

(vi) The 2008 and 2009 Ungava Actions

[125] When an action is undertaken, we expect some general dedication to the process. One has to wonder about a situation where a Statement of Claim is issued out of concern that a limitation period may pass and, then, it is neither filed nor served within the prescribed time. This concern is underscored when a second Statement of Claim is issued as protection against the failure of the first and it, too, is not served. It suggests no one was paying attention.

(vii) The expert reports

[126] The same could be said for the failure to move quickly to withdraw an expert report filed by someone who has, since it was delivered, been appointed a judge. The difficulty is exacerbated when it is followed by the delivery of a report from a second expert when his objectivity is in issue because he has or is acting in other proceedings against a party with a relationship to this one (Canadian Royalties Inc.).

(viii) The revival motions

[127] This takes me to the final four years of the fourteen years that have gone by since the 2002 Action was commenced. This is the period that begins with the last change in counsel for the plaintiff. Over those four years, the present counsel of the plaintiff has been engaged in nothing other than an effort to get the actions restarted or, as he would have it, revived. This should not have taken four years. Why it did is not something I can discern. Why it was necessary for the seemingly endless supply of Motion Records and Supplementary Records, for experts to be asked to state and, in the face of contrary views, restate opinions and for examinations to be conducted in sporadic fashion over long periods of time are not things that, with hindsight, I am able to fathom. I note only that, by the time present counsel was retained, none of the five actions were ongoing. After ten years, it was unlikely that any defendant would willingly allow for their revival. The battle lines were drawn. What has happened since was predictable. Every conceivable argument has been laid out. The series of expert reports was exchanged. Apparently, the parties believe that the judge may read the contrary views on the application of Quebec law to this situation and decide, on that basis, whether these actions should proceed. An unexpected opportunity appeared. Privilege as between counsel and client had been waived. The defendants opted to chase this down. It does not seem to me that this added much to what was clear from the record. When Teplitsky, Colson was retained, it was thought necessary to cross-examine the lawyer who reviewed the file.

[128] No doubt, some of this activity and the accompanying delay fell at the feet of the defendants. But, in the circumstances, their actions cannot have been a surprise. In my view, what happened over the final four years does not matter. All those years did is draw this out that much longer. This decision is founded on what happened earlier.

(c) Conclusion

[129] In the end, the issues that determine this case are not that complicated. It is pretty simple. Does a party exhaust what the court offers when, after fourteen years, that party has nothing to show for it because:

• it abused the process of the court by attempting, through whatever means available, to re-litigate issues that had already been decided;
• it misused the process of the court by attempting to invoke those processes for the purpose of conducting an investigation into the substance of its actions rather than proceed, when it was acknowledged this was not necessary;
• it ignored the orders of the court which required things to be done according to schedules and dates it set; and,
• it did not respond to the fundamental requirements of the court by failing to move quickly to implement a change to a Statement of Claim, by failing to file and serve Statements of Claim once issued and attempting to utilize an inappropriate, if not, improper affidavit?

[130] The answer to the question is “yes”. The process of the court has been exhausted by fourteen years (or ten years) over which no real progress was made. In the words of the Court of Appeal, this is a case where “enough is enough”. To paraphrase Shakespeare, “…it is a tale”. This one has not been “told by an idiot”. But it has been “…full of sound and fury, signifying nothing”. [58]

[131] In this case, a demonstration that the plaintiff has failed to make progress is the observation that, through all these years, through all this process, there is not a single motion brought by the plaintiffs that was heard and decided in their favour. This includes:

• the motion for leave to file additional evidence, following cross-examination, on the defendant’s motion to strike parts or all of the counterclaim and the subsequent appeal and motion for leave to appeal
• the motion seeking revocation of the homologated judgment
• the motion seeking dismissal of the second arbitration
• the counterclaim that was dismissed with the consent of the plaintiff
• the motion to strike paragraph 24 of the Statement of Claim
• the First Motion, which sought to amend the Statement of Claim, to add defendants and to allow for the cross-examination of proposed parties and following the affidavit of August 31, 2007, non-parties, was eventually declared redundant
• the Second Motion, which sought to examine two individuals and was eventually abandoned.

[132] The motions, each of them, are dismissed.

[133] In making this determination, I am relying, as did the Court of Appeal, on the inherent jurisdiction of the court rather than any specific rule (see para. [19], above). In my view, the direction to the courts to be more efficient must be recognized and respected by lawyers and parties. Nothing that has happened in this case reflects on this requirement.

[134] Having said this, I acknowledge that such rulings may more generally be dealt with pursuant to r. 37.14 and cases which have dealt with the reinstatement of actions that have been dismissed for delay.

[135] The rule is the authority for setting aside an order of a registrar. [59] The case law was reviewed in H.B. Fuller Co. v. Rogers, 2015 ONCA 173, a decision of the Court of Appeal. [60] It noted that the older or more traditional authorities identify four factors initially derived from Reid v. Corning Corp. [61] The four factors are:

(1) the length of the litigation delay and whether the plaintiff has provided an adequate explanation for it; (2) whether the failure to meet the mandated time limits was due to inadvertence; (3) whether the motion to set aside the dismissal order was brought promptly; and, (4) whether the delay has prejudiced the defendant. [62]

[136] Later authorities have applied a two-part test. It requires that a plaintiff provide both an acceptable explanation for the delay and to show the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. [63]

[137] In H.B. Fuller Co. v. Rogers, 2015 ONCA 173, the Court made plain that neither of the two tests provide an exhaustive list of considerations. “The judge must adopt an overall contextual approach and, as well, take factors unique to the case into consideration. The factors are not an end in themselves.” [64] There is an underlying tension between, on the one hand, the idea that civil actions should be decided on their merits, and, on the other, that they should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice. [65] When evaluated in this way, I have little difficulty in arriving at the conclusion I have already expressed. The length of the delay is fourteen years (or ten years). There can be no explanation for abusing and misusing the process of the court in the consistent fashion over as many years as has occurred in this case. There has been a consistent failure to meet the time limits set. Eventually, it is not inadvertence; it is simply disregarding the responsibility. Counsel for the University of Toronto and James Mungall pointed out that, after fourteen years of waiting for some resolution, the prejudice is obvious and palpable. The idea is that disputes are to be resolved by the courts, not hanging over the heads of people for so long without any discernible progress. While no direct evidence was presented, one way or the other, it is plain that the passage of time, on its own, can cause prejudice. In this case, it is not difficult to understand that the reconstruction of what happened so long ago in time, for a trial that is not likely to be ready for several more years, carries with it substantial prejudice. Finally, as the reliance on the inherent jurisdiction of the court suggests where, after fourteen years, we are, in effect, just starting the process, the public confidence in the administration of justice is threatened.

[138] The motions are dismissed.

(d) Costs

[139] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:

1. On behalf of the defendants, each of the three counsel, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 4 pages, double-spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.
2. On behalf of the plaintiffs, no later than 10 days thereafter. Such submissions are to be no longer than 8 pages, double-spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.
3. On behalf of the defendants, in reply if necessary, each of the three counsel no later than 5 days thereafter. Such submissions are to be no longer than two pages, double-spaced.

LEDERER J.

Released: 20160919

COURT FILE NO.: 02-CV-230552CM2 DATE: 20160919 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: NEARCTIC NICKEL MINES INC. and UNGAVA MINERAL EXPLORATION INC. Plaintiffs – and – UNIVERSITY OF TORONTO and JAMES MUNGALL Defendants

JUDGMENT

LEDERER J.

Released: 20160919

[1] Affidavit of Glen Erikson, sworn March 22, 2012, at paras. 1 and 2. [2] Court File No.: 02-CV-230552CM2. [3] Court File No.: 07-CV-337944CM2. [4] Affidavit of Glen Erikson, sworn December 28, 2007, at para. 1. [5] Ibid, at para. 2. [6] Court File No.: CV-08-00356376. [7] Court File No.: CV-08-00367424. [8] Court File No.: CV-09-379675. [9] This report was published by the Action Committee on Access to Justice in Civil and Family Matters, Ottawa, Canada, October 2013. Justice Thomas Cromwell is a member of the Supreme Court of Canada. He has announced his retirement from the Court. [10] Ibid, at p. 8. [11] RRO 1990, Reg 194. [12] Rules 29.2.03(1), 31.05.1(1), 20.04 (2)(a) and (2.1), and 1.04(1.1). These changes and many others were the direct result of work issued as the “Civil Justice Reform Project” released November 2007 by the Honourable Coulter A. Osborne, Q. C. [13] Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No 4606 (QL), at para. 22. [14] Factum of the Plaintiffs, at para. 7. [15] Responding Factum of the Defendants, University of Toronto and James Mungall, at paras. 2-8. [16] Amended Statement of Defence, dated December 20, 2006, filed on behalf of the University of Toronto and James Mungall in response to the 2002 Action; Statement of Defence of the Defendants Falconbridge Limited and Danielle Giovenazzo, dated July 16, 2008, in response to the 2008 Gogama Action; Statement of Defence, dated June 26, 2008, filed on behalf of Laurentian University and C. Michael Lesher in response to the 2008 Gogama Action. [17] Factum of the Proposed Defendants, Falconbridge Limited and Danielle Giovenazzo, at para. 11. [18] In civil law: To confirm or approve; to consent or assent (Black’s Law Dictionary, Tenth Edition, Thomson Reuters). [19] The motion to homologate was made pursuant to Article 946.1 C.p.c. The order states, among other things, at para. 7: It is in the interest of the Petitioner that the Arbitration Award be homologated by the Court in order that it may be given full effect and rendered executory. [20] Endorsement of Master Haberman in Canadian Royalties v. Ungava Minerals Corp. et al. Heard and released: October 1, 2003 (Court File No.: 03-CV-244125CM2), at p. 7 (unreported). [21] Ibid, at p. 4. [22] Canadian Royalties Inc. v. Ungava Minerals Corp., 2003 ONSC 45813. [23] Endorsement of Mr. Justice John Macdonald, dated January 8, 2004 (unreported). [24] Ungava Minerals Corp. v. Canadian Royalties Inc., 2004 ONSC 19699, at para. 5. [25] Ibid, at para. 11. [26] Order of the Registrar of the Superior Court of Ontario (Court File No. 03-CV-224125CM2), dated Tuesday, March 2, 2004. [27] Award of Arbitrator Mendelsohn, dated December 20, 2004, at para. 1.3.1.4. [28] Ibid, at para. 1.3.1.4(c). [29] Ibid, at para. 2.6. [30] Order of Master Haberman, dated Thursday, February 13, 2003 (Court File No. 02-CV-230552CM2). [31] Case Management Motion Form, dated June 11, 2007. [32] Affidavit of Glen Erikson, sworn June 6, 2007, at paras. 33-35. [33] Order (Endorsement at Case Conference) by Master Haberman, dated October 15, 2007, at p. 1. [34] Ibid, for each of the quotations that appear in this paragraph. [35] Order (Endorsement at Case Conference) by Master Haberman, dated December 3, 2007, for each of the quotations that appear in this paragraph. [36] Affidavit of Ronald Chapman, sworn March 16, 2012, at para. 22. [37] Order of Master Haberman, dated February 5, 2009. [38] Cross-examination of Glen Erikson, dated June 16, 2014, at Q. 665 and Q. 668. [39] Cross-Examination of Ronald Chapman, dated February 2, 2015, at Q. 2067 and Q. 2070. [40] Raponi v. John Doe, 2010 ONSC 3632. [41] Ibid, at paras. 40-41. [42] Order: To schedule a long motion made by Master Haberman, dated January 27, 2010. [43] Affidavit of Ronald Chapman, sworn March 16, 2012, at para. 45. [44] Order (Telephone Case Conference), May 11, 2010, at pp. 1-2. [45] Affidavit of Jannette Drost, sworn October 18, 2012, at para. 82. [46] Affidavit of Glen Erikson, sworn October 6, 2010, at para. 18. [47] Endorsement of Master Haberman, dated October 14, 2010, at para. 1. [48] Endorsement of Master Haberman, dated May 26, 2011. [49] Order (Endorsement at Case Conference), dated January 31, 2012 at p. 1, para. 4. [50] Ibid, at p.1, para. 3. [51] Ibid, at p. 2. [52] Counsel for Laurentian University and C. Michael Lesher, by letter, dated October 2, 2013; counsel for Falconbridge Limited and Danielle Giovenazzo, by e-mail, dated October 23, 2013; and counsel for the University of Toronto and James Mungall, by letter, dated December 16, 2013. [53] Cross-examination of Glen Erikson, sworn June 16, 2014, at Q. 681 and Q. 688 to Q. 690. [54] Order (Endorsement at Case Conference in Writing), dated August 21, 2015, pp. 1, 2 and 3. [55] Layland v. Canadian Co-Operative Association and Co-Operators Life Insurance Company, 2015 ONSC 6332, at para. 14, referring to Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 18. [56] Carioca’s Import and Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, at para. 53, referring to 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2013 ONCA 544, 112 O.R. (3d) 67 (C.A.), at para. 29. [57] Ibid, at para. 53, referring to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 32. [58] William Shakespeare, Macbeth, Act V, Scene V. [59] The rule states: 37.14 (1) A party or other person who, (a) is affected by an order obtained on motion without notice; (b) fails to appear on a motion through accident, mistake or insufficient notice; or (c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. [Emphasis added] [60] H.B. Fuller Co. v. Rogers, 2015 ONCA 173, 250 A.C.W.S.(3d) 591, 330 O.A.C., 386 D.L.R. (4th). [61] Ibid, at para. 21, referring to Reid v. Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ontario Master), at para. 41, rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.) was overruled in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3rd) 179 (Ont C.A.); and, see Marche d’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 887, 328 D.L.R. (4th) 540 (Ont. C.A.), at para. 20. [62] Ibid, at para. 20, referring to Habib v. Mucaj, 2012 ONCA 880, 31 C.P.C. (7th) 1 (Ont. C.A.), at para. 5; Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, 328 D.L.R. (4th) 540 (Ont. C.A.), at para. 22. [63] Ibid, at para. 22, referring to Kara v. Arnold, 2014 ONCA 871, [2014] O.J. No. 5818 (Ont. C.A.), at para. 8. [64] Ibid, at paras. 21 and 23. [65] Ibid, at para. 25, referring to Kara v. Arnold, 2014 ONCA 871, at para. 9; Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, at paras. 20-21; and, Marche d’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 887, at para. 25.