Court File and Parties

COURT FILE NO.: 04-CV-026293 DATE: 2017/02/16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: OZ MERCHANDISING INC, Plaintiff and CANADIAN PROFESSIONAL SOCCER LEAGUE INC. et al, Defendants

BEFORE: Master Fortier

COUNSEL: Thomas D. Kerr for the Plaintiff Jane M. Bachynski for the Defendants, Eastern Ontario District Soccer Association and The Ontario Soccer Association Brent Craswell for the Defendant, Canadian Soccer Association

HEARD: OCTOBER 25, 2016

E N D O R S E M E N T

Introduction

[1] The Plaintiff brings this motion for refusals and seeks an order requiring the Defendants, Canadian Soccer Association (“CSA”), Eastern Ontario District Soccer Association (“EODSA”) and the Ontario Soccer Association (“OSA”) to provide answers and productions which the Defendants refused to provide at their respective examinations held in 2012.

[2] Following the hearing of the motion and while this matter was under reserve, a Notice of Stay of Proceedings for the EODSA was filed.

Background and Position of the Parties

[3] In 2012, examinations for discovery were conducted of the respective representatives for the CSA, OSA and EODSA.

[4] On January 7, 2015, Master Roger (as he then was) ordered that all parties examined to date in the proceedings provide their outstanding answers to undertakings by September 30, 2015 and file any undertakings and refusals motions by November 30, 2015.

[5] In accordance with the terms of Master Roger’s order, the Plaintiff, as well as the EODSA, OSA and the CSA produced their answers to the undertakings by September 30, 2015.

[6] The Plaintiff scheduled a motion for May 19, 2016 seeking various elements of relief including an order compelling the Defendants to provide answers and productions which they refused to provide at their respective examinations held in 2012. The motion was adjourned to October 25, 2016. Although some of the elements of relief sought were resolved, the Plaintiff pursued its’ refusals motion.

[7] According to the Plaintiff, the CSA, OSA and EODSA have refused to answer proper questions which are related to the pleadings and issues arising in the proceedings. The Plaintiff provided refusal charts relating to each of the three Defendants.

[8] The Defendants resist the motion for the following reasons:

a) The Plaintiff has failed to comply with the court-ordered deadline of November 30, 2015 for bringing refusals motions. At the time of Master Roger’s order of January 7, 2015, the Plaintiff had completed its examinations for discovery of the representatives of the EODSA, OSA and the CSA. In addition, the Plaintiff along with the EODSA, OSA and the CSA had delivered their respective answers to undertakings and positions on advisements and objections by the September 30, 2015 deadline so that the parties would be in a position to file any refusals motion by the court-imposed deadline of November 30, 2015. Furthermore, no amendment to the timeline was made either by court order or on consent.

b) The information and documents sought by the Plaintiff are not relevant to the action.

c) Many of the questions objected to relate to issues and prior disputes which were finally resolved between the parties or their privies and therefore are res judicata.

d) The Plaintiff is attempting to revive and pursue a conspiracy claim which was rejected on three separate occasions and by two levels of Court.

[9] With respect to the allegation that the Plaintiff failed to comply with the court-ordered deadline for bringing a refusals motion, the Plaintiff argues that the Defendants did not raise any objection about the refusals motion during a case conference held before Master MacLeod (as he then was) in June 2016. The Defendants do not agree.

Issues

a) Is this motion barred from proceeding owing to Master Roger’s order dated January 7, 2015 requiring that all refusal motions be filed by no later than November 30, 2015?

b) If not, are the questions in issue properly objected to by the respective Defendants?

Disposition

[10] For the reasons that follow, I find that this motion was brought in breach of the order of Master Roger of January 7, 2015 and is therefore dismissed.

Law and Analysis

[11] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, contain several case management tools including enforceable timetables established by agreement or court order (Rules 1.03 & 3.04). These tools are essential to ensure rigorous trial management. This is particularly important in this action.

[12] Rule 1.03 defines “timetable” as a schedule for the completion of one or more steps required to advance the proceeding and established by order of the court or by a written agreement of the parties that is not contrary to an order.

[13] Rule 3.04(1)(2)(3) provides that generally speaking the parties may amend a timetable by written agreement but they cannot amend the deadline for setting the action down for trial in this manner as that requires a court order.

[14] Rule 3.04(4) provides that a party that fails to comply with a timetable may be sanctioned on any other party’s motion. Rule 3.04(4) reads as follows:

If a party fails to comply with a timetable, a judge or case management master may, on any other party’s motion,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just

[15] The sanctions outlined in Rule 3.04(4) for failure to comply with a timetable are the same remedies as failure to comply with an interlocutory order under Rule 60.12. In other words timetables are enforceable.

[16] Master Macleod (as he then was) heard motions and case conferences in this action on several occasions. He captured the challenges of managing this action and the need for a firm timetable in his endorsement of August 25, 2015 in Oz Merchandising Inc. v. CPSLI, 2015 ONSC 53600 when he stated at paragraphs 1 & 2:

This is one of Ottawa’s longest running civil litigation files. The action was started in 2004 and the events in question date from 2003 although subsequent events also figure in the “Further Fresh as Amended Statement of Claim” dated December 14, 2012”.

Not surprisingly there have been many motions and several changes of counsel. Currently the action is proceeding in accordance with a firm timetable set by my colleague Master Roger (as he then was). [Emphasis added].

[17] It is clear that Master Roger’s order dated January 7, 2015 is a timetable within the meaning of Rule 1.03. The purpose of the timetable was to ensure that the discovery phase was completed so that the matter could continue progressing towards trial.

[18] The parties were all aware of the deadlines established by Master Roger and they were also aware that the timelines were enforceable. This is particularly evident as the parties were abiding by the other deadlines imposed by Master Roger. Of note is the specific reference by the Plaintiff’s counsel to Master Roger’s order in her letter dated September 30, 2015 enclosing the answers to the Plaintiff’s undertakings. Counsel stated:

“Pursuant to the Rules of Civil Procedure, and as per the order of Master Pierre E. Roger, dated January 7, 2015, paragraph two, enclosed by courier please find Answers to Undertakings, Advisements and Objections given at the Examination for Discovery of Omur Sezerman, held on February 9 and 10, 2012.” [Emphasis added].”

[19] The Plaintiff has brought this refusals motion well past the firm timetable set by Master Roger. The timetable has not been amended by agreement of the parties or further order of the court.

[20] As noted above, timetables are enforceable and there are sanctions under rule 3.04(4) if a party fails to comply. Accordingly, I find this motion is barred as the Plaintiff has failed to comply with the Order of Master Roger requiring that all refusal motions be filed no later than November 30, 2015.

[21] As I have found that this motion is precluded by the order of Master Roger, I will not address the issue of whether the questions were properly objected to by the respective Defendants.

Conclusion

[22] For the reasons outlined above, the Plaintiff’s refusals motion is dismissed.

[23] If the parties cannot agree on the matter of costs, they may make submissions in writing beginning with the Defendants within 15 days of the release of these Reasons for Decision followed by the Plaintiff’s submissions within a further 15 days. Written submissions are to be no more than 3 pages in length each.

Master Marie Fortier DATE: February 16, 2017