Court File and Parties
COURT FILE NO.: CV-08-360246 DATE: 20170605 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tan-Jen Ltd., Plaintiff – AND – Lisa Di Pede, a.k.a. Elisa Di Pede, Tony Di Pede and Di Pede Design Group Inc., Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Monique Jilesen, Margaret Robbins, and Jeffrey Silver, for the Plaintiff James Manson, for the Defendants
HEARD: June 5, 2017
Endorsement
[1]
Background
This matter has come to me as a case conference in order to determine the order of proceedings in the upcoming motions.
2The Defendants have brought a motion for contempt and other relief based on their allegation that the Plaintiff has violated a court order that pre-dated a settlement of the litigation and on which the settlement was predicated. The Plaintiff has brought its own motion seeking to strike the Defendants’ Notice of Motion based on its submission that the contempt motion as framed cannot succeed. Counsel for the Plaintiff would like the Plaintiff’s motion to be heard in advance of the Defendant’s motion, since if the Plaintiff’s motion is successful it will save the time and effort of formulating a full factual response to the Defendants’ motion.
3Counsel for the Defendants submits that there is no real difference between the Plaintiff’s motion to strike and the usual position of respondents in motions seeking that the motion be dismissed. He contends that the Plaintiff is simply adding an unnecessary step to the motion, and that it would be better to follow standard practice and to simply proceed with the Defendants’ motion and the Plaintiff’s response. He also makes the point that his motion seeks some alternative relief other than a contempt order, and that even if the Plaintiff is correct that a contempt order cannot be obtained at this point the parties will still have to argue the merits of the alternative relief.
4Counsel for the Plaintiff submits that it is the right of the principal of the Plaintiff not to testify or submit an affidavit in defense of a contempt order. She goes on to explain that the only way to preserve this right is to have the question of whether contempt is possible in these circumstances determined up front. Plaintiff’s counsel contends that her client may well have to file an affidavit in response to the alternative relief sought by the Defendants, but that proceeding with the Defendants’ motion first is unfair to the Plaintiff. As presently packaged, the Defendants’ motion might compel the Plaintiff to testify or swear an affidavit in response to both the contempt and the non-contempt relief sought against it, which would in turn undermine the right the Plaintiff would have not to testify in response to the contempt motion if it were standing alone.
[5]
Analysis
I agree with counsel for the Plaintiff that the fair and efficient way to approach this is for the Plaintiff to argue the motion to strike up front. If that is successful, it will dispense with much of the need for any motion at all by the Defendants. As Plaintiff’s counsel points out, the alternative relief sought by the Defendants is, essentially, a declaration that the Plaintiff is in breach of the very orders which form the basis of the contempt motion.
6This is a rather old action, having been commenced in 2008. It was hard fought by the parties until their settlement in 2016. Whether the Defendants are correct and the orders that form the basis of the settlement have been breached and a remedy is in order, or the Plaintiff is correct and there is no breach and no possibility of a further remedy, it is in everyone’s interest that this not be any more protracted than need be.
[7]
Disposition
A motion date for hearing the Plaintiff’s motion to dismiss is to be arranged with the motions office, hopefully with mutual cooperation of both sets of counsel. The motion is to be for under 2 hours.
Morgan J.
Date: June 5, 2017