Court File and Parties

COURT FILE NO.: CV-16-553174 MOTION HEARD: 2017-05-02 REASONS RELEASED: 2017-05-03 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

RESPONSIVE BRANDS INC. Plaintiff

- and-

2139233 ONTARIO LIMITED, STEVEN LESKOVAR SR. also known as STEPHEN LESKOVAR SR. and STEVEN LESKOVAR JR. Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: D Elaine S. Peritz Fax: (416) 365-1474 -for the moving Plaintiff

Cole Vegso Fax: (519) 660-7853 -for the responding Defendants

REASONS RELEASED: May 3, 2017

Reasons for Decision

I. Overview

[1] This motion raises an issue which surprisingly was not appear to be to have been resolved by any prior published decision. At least both counsel before me that the matter should be treated as not being governed by any pre-existing decision.

[2] Put simply, the question is which side ought to be entitled to cross examine first, on a motion for summary judgment, under Rule 21, of the Rules of Civil Procedure where both sides file affidavits in support of their positions.

[3] It seems that in the past, either the matter has been resolved between counsel, or perhaps as a term of an established motion timetable.

II. Action

[4] The plaintiff is a franchise or of Mr. Transmission franchises. The defendants operated a Mr. Transmission franchising Cambridge until July 2016, Mr. justice Firestone established by his order. A timetable for the hearing of a summary judgment motion brought by the plaintiff against the defendants seeking approximately $300,000 and other relief.

[5] The Approved Hearing Date set out in the Civil Practice Court timetable for this matter establishes August 2, 2017 for the motion Hearing Date. The cross examinations are to be completed by May 30, 2017.

[6] Both counsel wished to proceed with their cross examinations first.

[7] As the time period set aside for cross examinations now had less than 30 days to run it was necessary to obtain guidance as to the appropriate order of proceeding.

III. Procedural Developments

[8] In Abrams v. Abrams, 2010 ONSC 2703, Justice D.M. Brown, observed: 'Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the 'just, most expeditious and least expensive determination of every proceeding on its merits.'

[9] Clearly the new Rules were intended to facilitate expeditious resolution.

[10] In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis was discussing the test for summary judgment. At paragraphs 27 and 28 of her judgment for the Supreme Court of Canada, she stated:

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible -proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [my emphasis]

[11] Against this background I turn to a consideration of the issue before me.

IV. Disposition

[12] While a coin toss might be the least painstaking way of determining this issue, I feel the best approach is to treat the matter as analogous to a normal trial.

[13] At trial, the plaintiff puts in the evidence in chief and then the defendant is entitled to cross examine on that evidence following its being tendered. Then the defendants case is presented and challenged.

[14] In the present matter both parties have filed their evidence by way of affidavits. At trial, the plaintiff cannot be sure what evidence the defendant will lead. Here, at least that evidence is documented prior to the motion being argued.

[15] I therefore hold that on a motion for summary judgment it is the moving party’s witnesses who are to be cross-examined prior to the cross-examination of the responding party’s deponents.

[16] With a view to expediting this process, and establishing at least an interim procedure for the future, the second examining side should be entitled to proceed with their examinations at the scheduled time, regardless of the state of any refusals or undertakings outstanding.

[17] At trial, the trial judge would be in a position to deal with those issues “on the fly”. Here the need to preserve valuable court time for scheduled matters to proceed on time, in my view justifies this being the normal approach.

[18] Given the novelty of this particular question, it was my view that there ought to be no order as to costs.

[19] I thank both counsel for their assistance in addressing this enigma.

Released: May 3, 2017

Master D. E. Short DS/ R.182