Court File and Parties

COURT FILE NO.: CV-15-2110-00 DATE: 2017 06 09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TRADE CAPITAL FINANCE CORP. Plaintiff

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PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DAYAWANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO MR. DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT MR. DE MARIA also known as CARLO VINCENZO MR. DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC. Defendants

BEFORE: EMERY J.

COUNSEL: Peter W. G. Carey and Christopher R. Lee, for the Plaintiff Philip Viater, for the Defendant Frank Zito Howard Gerson, for the Defendant, Alan Keery

HEARD: June 6 and 7, 2017 by telephone conference

Endorsement

[1] I convened a case conference by telephone on June 6, 2017 at the request of counsel to discuss scheduling issues related to the two motions for summary judgment Mr. Zito and Mr. Keery have brought. At the case conference on April 18, 2017, I had set aside half day on June 26, 2017 to hear those motions as the judge appointed under Rule 37.15 to hear all motions in this action.

[2] On April 18, I issued an endorsement that specified each of the defendants bringing a motion on June 26, 2017 would have to serve his materials by Monday, May 8, 2017. Any defendant that did not, would not be heard on June 26, 2017 on his motion, without leave. This due date for the service of materials was set to allow Trade Capital time to respond, and for the parties to conduct the examinations they considered necessary.

[3] Mr. Gerson served his client’s motion materials by May 8, 2017. However, Mr. Viater did not serve the motion materials of Mr. Zito until May 23, 2017.

[4] After hearing submissions of counsel on June 6, 2017, I made the following orders under Rule 37.15(1.2):

(1) The date for the service of Mr. Zito’s motion for summary judgment is extended to May 23, 2017; (2) All examinations conducted under Rules 39.02 or 39.03 shall be common to both motions; (3) Both motions shall be heard together; and (4) Having regard to Rule 37.15(2), if I am to hear these motions, the moving party in each motion shall have the responsibility of collecting all written consents from interested parties for me to hear that motion for summary judgment.

[5] The case conference continued on June 7, 2017. On reconvening, counsel informed me of their agreement to the following timetable for both motions:

(1) Trade Capital shall serve responding materials to the Zito motion by June 16, 2017; (2) Mr. Viater shall serve reply materials, if any, by June 22, 2017; (3) Examinations in both motions shall be conducted: a. under Rule 39.03, between June 14 and 23, except for June 19, b. under Rule 39.02, during the week of June 26 and between July 26 to 31; (4) Factums to be exchanged by September 8, 2017.

[6] Mr. Gerson informed me on this case conference call that Peter Cook has indicated he will make himself available on June 20, 2017 to be examined under Rule 39.03. The place of that examination will be determined by counsel.

[7] In view of the revised timetable to accommodate hearing Mr. Zito’s motion for summary judgment at the same time Mr. Keery’s motion is heard, June 26, 2017 as the hearing date for those motions is hereby vacated.

[8] I am prepared to hear these motions in my capacity as the judge to hear all motions under Rule 37.15. However, I am mindful of Rule 37.15(2) that provides the judge appointed to hear all motions shall not preside at the trial of the action except with the written consent of all parties. I am informed by Mr. Carey that Trade Capital does not consent to have these motions for summary judgment heard by me.

[9] In the Court of Appeal decision of Royal Bank of Canada v. Hussain, 2016 ONCA 637, Justice Simmons held that a motion for summary judgment is akin to a trial. On that appeal, the court set aside the summary judgment awarded by the judge who had also served as the pre-trial conference judge in the action. Although the functions of a judge appointed under Rule 37.15 to hear all motions is not the same as the role of a judge hearing a pre-trial conference, they are not dissimilar. There is a certain familiarity about the case that builds up from hearing motions and conducting case conferences over the course of an action. Certainly positions taken on motions and at case conferences tend to establish patterns of known behaviour and strategies taken on the issues.

[10] This does not mean that I cannot and would not be impartial or unbiased in hearing and deciding any motion for summary judgment. It is just that one party or another may take the view that another judge who has not heard submissions on a great many of the procedural and substantive steps taken in this action should determine the motion on any claim or defence under Rule 20, particularly with the expanded powers available to the court under Rule 20.05.

[11] It is also important to recognize that the operative language in Rule 37.15(2) is precisely the same language as that found in Rule 50.10 (1) that was at issue in Royal Bank v. Hussain.

[12] I conclude from finding the same language in both rules that the same policy considerations behind the rule prohibiting a pre-trial conference judge from hearing a motion for summary judgment likely applies to a Rule 37.15 judge to hear a Rule 20 motion, except where all parties have given their written consent.

[13] I therefore decline to hear the two motions for summary judgment. Counsel are directed to seek a new hearing date from the trial coordinator in Brampton, to be heard by a judge other than myself.

[14] I remain the judge to hear all procedural motions with respect to the two motions for summary judgments, and in this action generally.

Emery J. Date: June 9, 2017