Court File and Parties

COURT FILE NO.: CV-13-00472242-0000 DATE: 20170214

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

Seacliff Energy Ltd. et al. Plaintiffs

-and-

Dairy Lane Systems Limited et al. Defendants

AND

COURT FILE NO.: CV-10-410508-00B1

BETWEEN

Joseph Maio et al. -and- Kapp Contractuing Inc. et al.

BEFORE: F.L. Myers J.

COUNSEL: See attached handwritten list

HEARD: February 13 2017

Endorsement

[1] This joint case conference was referred to me by Firestone J. sitting in CPC. These two unrelated cases may have a common issue of law involving the entitlement of each plaintiff and its or their insurers to sue one or more of the defendants in a subrogated claim. The issue turns on the applicability and interpretation of a waiver of subrogation clause in builders’ risk insurance policies that may have been applicable to the two losses.

[2] The cases are otherwise completely unrelated. Moreover, the facts underlying the potentially common issue are also different in each case. The applicable defendant in each case wishes to move for summary judgment to have this discrete and narrow issue resolved. The other participants either agree to, or do not strongly oppose, the scheduling of the motions provided that the motions do not continue to forestall the actions moving forward toward trial. Discoveries have been completed in each action. However certification of readiness is awaiting mediation. Mediations are scheduled in late April and early May. The moving defendants do not see a value in mediating prior to resolution of the subrogation issue that may remove them from the litigation completely.

[3] The moving defendants ask that the summary judgment motions be scheduled concurrently and be heard by the same judge at the same time for efficiency. However, a drive for efficiency has not led them to deliver their motion records although this issue has been outstanding for several months. The date for mediation in one of the actions was ordered by Justice Diamond. Mediation is strongly desired by almost all of the other parties whose counsel attended the case conference.

[4] In my view, the principal goal of this light touch case management is to protect the entitlement of the parties to move the cases toward settlement or trial while the motions proceed. The tail will not wag the dog. If there is no settlement at mediation, I encourage counsel to get on with trial scheduling efforts as soon as the mediations are completed regardless of the status of the summary judgment motions.

[5] The mediations will proceed as scheduled. The moving parties are well able to handicap their motion positions in the negotiating balance. Moreover, even if they choose not to participate, the other parties may find benefit in negotiating on the merits among themselves on any number of issues.

[6] I am not prepared at this time to schedule the motions to be heard together. There are too many parties in each case to conveniently find dates to schedule both. Moreover, the facts underlying the subrogation issue differ in each case. It may be, for example, that one case will need little factual inquiry while the other may get bogged down in a detailed review of the insurance history of the parties or identifying the applicable policies. Scheduling of the hearing(s) and a decision as to whether the motions should be heard together can await the outcome of the preliminary procedural steps.

[7] Therefore the following partial schedule is set for motions for summary judgment in both cases:

a. The moving parties will deliver their motion records by March 17, 2017; b. Any party wishing to deliver responding material shall do so by April 21, 2017; c. The mediations shall proceed as scheduled on April 25 and May 2, 2017 respectively; d. Cross-examinations shall be held before the end of June. Rule 34.12 applies to the cross-examinations. All questions to which objection is taken shall be answered but the answers may not be used at the hearing without a ruling of the presiding judge. Questions objected to on the grounds of privilege (any type) are excepted from this requirement. All undertakings given by a witness on cross-examination shall be answered within 45 days of being given; e. There will be further case conferences to deal with scheduling before me as matters proceed. Counsel will agree on a date and time to report by telephone on the progress of each schedule before the end of May (either both actions together or separately); and f. If any urgent procedural roadblocks arise that cannot be resolved among counsel, my office may be contracted to schedule a case conference. This should not be necessary if counsel cooperate on scheduling matters as required.

[8] Costs from the CPC hearing last November that were reserved to the case conference and the costs of the case conference are reserved to the judge(s) who hear the summary judgment motion in each action. In the event that one or more of the motions are not heard, then the costs are reserved to the judge who ultimately disposes of each action.

[9] On consent, service of motion materials by email on counsel is sufficient for all steps in the summary judgment motions.

[10] All materials shall be delivered electronically in searchable PDF format. For assistance as to format and e-filing process see: The Guide Concerning Commercial List E-Service (Effective July 1, 2014). This can be found at http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/eservice-commercial/

[11] Only one hard copy of motions records and factums are required for filing purposes. All materials shall also be filed on computer storage devices – flash drives etc. The hearings will be organized and heard electronically. Counsel may wish to consider establishing a private website on which all can upload their material to avoid sending large PDF attachments to each other. It is much simpler to simply send a URL and leave each other to download the documents that she or he wants from the common site. If a common site is agreed upon and established in either action, then service by email of the URL defining where motion materials or other documents have been uploaded is deemed to be effective service of the relevant document effective on the day after the email is sent.

[12] Counsel shall send confirmation receipts promptly upon receipt of email service.

F.L. Myers J.

Date: February 14, 2017