CITATION: Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2016 ONSC 8089
COURT FILE NO.: 04-CV-02693
DATE: 2016/12/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Oz Merchandising Inc. Plaintiff
AND
Canadian Professional Soccer League Inc., Eastern Ontario District Soccer Association, The Ontario Soccer Association, Canadian Soccer Association, Canadian Soccer League Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson, Defendants
BEFORE: Justice Robert L. Maranger
COUNSEL: Thomas Kerr and Haiyan Zhang, for the Plaintiffs
Iris Pichini, for the Defendants Canadian Professional Soccer Inc., League Canadian Soccer League Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson.
Ira Greespoon on his own behalf and for Vincent Ursini, Cary Kaplan and Stan Adamson
HEARD: December 15, 2016 (Ottawa)
ENDORSEMENT
The plaintiff, OZ Merchandising Inc., brings this motion for an order striking the statement of defence of the defendants: Canadian Professional Soccer League Inc. (CPSL), Canadian Soccer League Inc. (CSL), Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson hereinafter referred to as the subject defendants. The motion is brought pursuant to Rules 3.04(4)(b), 57.03(2), 34.15(1) (b)(c)(d), 60.12 of the Rules of Civil Procedure.
The plaintiff also seeks an order that the counterclaim of the defendant (CPSL) dated June 24, 2016 be dismissed.
In the alternative and also requested by the Plaintiff was the following:
• That the rights of the subject defendants to take any further steps in this proceeding be stayed until all prior cost orders and any cost orders associated with this motion be paid in full, and that all subject defendants and their representatives answer undertakings provided at the examinations for discovery of this matter held in August 2016.
• That the portion of the Plaintiff’s motion with respect to the issue of the propriety of the refusals and/or questions taken under advisement on the part of the subject defendants is adjourned to March 23, 2017 at 10 AM.
• That Ira Greenspoon properly serve and file a Notice of Appointment of Lawyer.
This is an action that dates back to 2004. It is a complex civil action in which the plaintiff claims damages of $2 million as an oppression remedy and other tortious damages. An 8 week judge and jury trial is set to begin on October17, 2017.
To put it mildly the matter has a long tortured procedural history. A great deal of delay has been caused by the subject defendants. They have collectively failed to abide by court orders concerning the payment of cost awards and the scheduling of and completion of discoveries.
The factum filed by the Plaintiff sets out some examples of the difficulties encountered as a result of the actions of the subject defendants such as: failing to pay $32,000 in costs orders, not complying with undertakings and refusing to admit the obvious i.e. that the CSL with the successor to the CPSL.
While striking the defendants pleadings and dismissing the counterclaim is an available and not necessarily inappropriate remedy. After reading all of the material and hearing from counsel from each side, it is my view that the subject defendants should be afforded one last opportunity to so to speak rectify any past transgressions prior to striking their pleadings.
With respect to the cost of this motion, and the costs submitted for the purposes of enforcing the previous cost order, I have considered the bill of costs filed by the plaintiff for each and would order cost fixed in the amount of $3000 for the enforcing the prior cost order, and would fix costs in the all-inclusive sum of $12,000 for this motion.
There is also a dispute as to what the outstanding balance was under the previous cost order. The total amount of costs ordered on November 4, 2010 was $2000, and on June 29, 2016 it was $30,000. The court was advised that $20,000 of this cost order has now been paid. The plaintiff is seeking a further $17,500 being $12,000 and $5500 in interest. The interest requested is excessive. I would fix the interest at $750 leaving a balance owing on the previous cost order of $12,750.
Therefore for the above reasons I would order the following:
a) The subject defendant Ira Greenspoon is to serve and file a notice of appointment of lawyer.
b) The subject Defendants rights to take further steps in these proceedings are hereby stayed until February 21, 2017.
c) That the subject defendants, shall pay the outstanding balance on the costs award from November 4, 2010 and June 29, 2016 in the amount of $12,750 on or before January 30, 2017.
d) The subject defendants or their representatives shall have until January 30, 2016 to provide the plaintiff with answers on all undertakings given during their Examinations for Discovery of August 2016.
e) The plaintiff’s motion concerning the subject Defendants refusals to answer questions during their examinations for discovery of August 2016 is adjourned to March 23, 2017 subject to the possible striking of the subject defendants pleadings.
f) The subject defendants are hereby ordered to pay costs for attempting to enforce the outstanding costs orders fixed in the sum of $3000 on a joint and several basis to the plaintiff on or before February 15, 2017.
g) The subject defendants are also ordered to pay the costs of this motion in the all-inclusive sum of $12,000 ordered on a joint and several basis on or before February 21, 2017.
h) Upon compliance with paragraphs: c, d, f, and g of this order, on the dates specified herein the stay of proceedings shall be lifted. In the event that the subject defendants fail to strictly comply with paragraphs: c, d, f and g of this order, their pleadings (amended statements of defence) will be struck and the counterclaim of the subject defendants CPSL will be dismissed.
i) The lifting of the stay referred to in paragraph h, will require the filing of either the consent of the plaintiff’s or a motion with notice to the plaintiffs by the subject defendants containing affidavit evidence demonstrating compliance.
j) The striking of the pleadings and dismissal of counterclaim for failure to comply shall be obtained upon the plaintiff filing a written motion record without notice to the subject defendants with affidait evidence confirming the subject defendants’ noncompliance with any sections c, d, f, and g of this order.
Mr. Justice Robert L. Maranger
Released: December 22, 2016
CITATION: Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2016 ONSC 8089
COURT FILE NO.: 04-CV-02693
DATE: 2016/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Oz Merchandising Inc. Plaintiff
AND
Canadian Professional Soccer League Inc., Eastern Ontario District Soccer Association, The Ontario Soccer Association, Canadian Soccer Association, Canadian Soccer League Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson, Defendants
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Thomas Kerr and Haiyan Zhang, for the Plaintiffs
Iris Pichini, for the Defendants Canadian Professional Soccer Inc., League Canadian Soccer League Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson.
Ira Greespoon on his own behalf and for Vincent Ursini, Cary Kaplan and Stan Adamson
ENDORSEMENT
Maranger J.
Released: December 22, 2016