CITATION: J.A. & D.A.F. v. BCC Interiors Inc., 2016 ONSC 756
COURT FILE NOS.: CV-11-424153 and CV-14-497046; DATE: 20160129
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Court File No. CV-14-497046
J.A. & D.A.F., CONSULTING LIMITED Plaintiff
– and –
BCC INTERIORS INC. Respondents
AND BETWEEN:
Court File No. CV-11-424153
J.A. & D.A.F., CONSULTING LIMITED Plaintiff
– and –
BCC INTERIORS INC., EDWARD BURNS, TERRY KLINGENBERG AND MICHAEL SCOTT PROKOSCH Defendants
Paul H. Starkman, for the Plaintiff Scott Price, Agent for the Defendant BCC Interiors Inc.
Paul H. Starkman, for the Plaintiff Jeffrey Armel, for the Defendant, Edward Burns Scott Price, Agent for the Defendants, BCC Interiors Inc., Terry Klingenberg and Michael Scott Prokosch
HEARD: January 28, 2016
ENDORSEMENT
DIAMOND J.:
[1] The trial of these actions is scheduled to commence on February 22, 2016 and last for 7-10 days. On January 25, 2016, the parties recently attended Civil Practice Court to speak to the defendants’ request for an adjournment of the trial.
[2] During that attendance in Civil Practice Court, Justice McEwen ordered the parties to attend before me on January 28, 2016 to speak to the defendants’ request.
[3] I was the judge who pre-tried this matter on December 2, 2015. No settlement was reached, and as a result the parties subsequently completed a Trial Management Form with my assistance.
[4] At that time, the defendants were all represented by Goodmans LLP (“Goodmans”) and took issue with an Order to Continue recently obtained by the former plaintiff Ehrlich Electric Company who apparently assigned it interest in these proceedings to the current plaintiff J.A. & D.A.F. Consulting Limited (“JA”). Specifically, the defendants expressed concern with the corporate status and viability of JA.
[5] As a result I made a series of Trial Management Orders including the following:
● the plaintiff was to serve copies of the materials previously filed in support of the Order to Continue on or before December 7, 2015;
● the plaintiff was to regularize JA’s corporate status on or before January 8, 2016.
● the parties were to exchange Notices under the Evidence Act on or before December 31, 2015; and
● the defendants were granted leave to bring a motion for security for costs (or other consequential relief arising out of JA’s corporate status) before the commencement of trial.
[6] Within approximately one week of the pre-trial, Goodmans prepared and serve a motion to remove itself as solicitor of record for the defendants. A review of the supporting affidavit of Howard Wise discloses that the breakdown of the solicitor/client relationship was based upon Goodmans failing to receive a trial retainer from the defendants.
[7] Goodmans’ motion was heard before Master Dash on January 11, 2016. None of the defendants delivered responding materials. None of the defendants attended to oppose Goodmans’ motion.
[8] Master Dash granted the order removing Goodmans as solicitors for the defendants.
[9] I note that until Master Dash granted his order, Goodmans was still the solicitor of record for the defendants. As such, Goodmans did deliver notices under the Evidence Act by December 31, 2015 in accordance with my Trial Management Order. However, even though Goodmans took steps to secure a motion date before Master Dash, Goodmans apparently took no steps to secure a return date before a Master for the defendants’ motion for security for costs.
[10] Upon being served with a copy of Master Dash’s order, Mr. Starkman (counsel for the plaintiff) corresponded directly with the defendants and inquired as to the identity of their new lawyer(s). Within a few days, the defendant Edward Burns retained Jeffrey Armel of Koskie Minsky as his new counsel.
[11] The remaining defendants approached Scott Price of Pallett Valo to represent their interests in this proceeding, but Mr. Price attended before me as agent for the remaining defendants as he is not available for the trial currently scheduled to start on February 22, 2016. Mr. Price has confirmed that he intends to be formally retained by the remaining defendants if the trial is adjourned to a later date upon which he is available.
[12] The defendants have requested a short (i.e. a few months) adjournment of the trial of these proceedings. Mr. Armel seeks the adjournment to permit Mr. Burns (and the remaining defendants) the opportunity to proceed with the motion for security for costs, as Goodmans did not take any such steps between the pre-trial and January 11, 2016.
[13] Mr. Armel has also requested leave under Rule 48.04(1) to bring a motion for summary judgment seeking an order dismissing the proceedings as against Burns pursuant to his Limitations Act 2002 defence.
[14] Mr. Starkman vehemently opposes the adjournment. He correctly points out that there was no evidence from the defendants filed in the record before me, and takes the position that the adjournment request is strictly “tactical” for the purpose of further delaying these proceedings.
[15] To begin, I see no grounds to support Burns’ request for leave to bring a motion for summary judgment at this late stage. While I understand that a potentially successful motion for summary judgment could shorten the trial of these proceedings, in my view, the Limitations Act 2002 defence was pleaded by Burns in his statement of defence. Burns, like the remaining defendants, consented to this action being placed on the trial list and to the scheduling of pre-trial and trial dates. The Limitations Act 2002 defence has been advanced by Burns from the outset of this litigation, and will remain a substantive defence at the trial of these proceedings.
[16] With respect to the defendants’ request for an adjournment of the trial, I am mindful that February 22, 2016 is the first trial date that has been scheduled in these proceedings. However, I have also been advised by the Civil Trial Scheduling Office that the first available new date for an 8-10 day trial is January 9, 2017.
[17] At the conclusion of the pre-trial, I granted the defendants the opportunity to bring their motion for security for costs. As a result of Goodmans’ motion to remove itself as the defendants’ solicitor of record, that opportunity was seemingly wasted. Trial dates must mean something, and the potential retainer of new counsel who may not be available for a fixed trial date ought not to automatically result in an adjournment.
[18] I agree with Mr. Starkman that the lack of evidence from the defendants is somewhat telling, and I draw the necessary adverse inference against them when assessing their submissions that prejudice will result in the event an adjournment of the trial is not granted.
[19] Accordingly, I dismiss the defendants’ request for an adjournment of the trial of these proceedings, which shall commence as scheduled on February 22, 2016.
[20] The defendants are still at liberty to bring a motion for security for costs before a Master on an urgent basis between now and February 22, 2016.
Diamond J.
Released: January 29, 2016
CITATION: J.A. & D.A.F. v. BCC Interiors Inc., 2016 ONSC 756
COURT FILE NOS.: CV-11-424153 and CV-14-497046;
DATE: 20160129
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Court File No. CV-14-497046
J.A. & D.A.F. CONSULTING LIMITED Plaintiff
– and –
BCCF INTERIORS INC. Respondents
AND BETWEEN:
Court File No. CV-11-424153
J.A. & D.A.F. CONSULTING LIMITED Plaintiff
– and –
BCC INTERIORS INC., EDWARD BURNS, TERRY KLINGENBERG and MICHAEL SCOTT PROKOSCH Defendants
ENDORSEMENT
Diamond J.
Released: January 29, 2016