Court File and Parties

COURT FILE NO.: CV-11-435360 DATE: 20170629 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TORONTO STANDARD CONDOMINUM CORPORATION NO. 2051 Plaintiff – and – GEORGIAN CLAIRLEA INC., Residences of CLAIRLEA GARDENS INC., ANTHONY MAIDA, FRANK MAIDA, GENE MAIDA and GEORGIAN CORPORATION Defendants

Counsel: Megan Mackay, for the Plaintiff Jonathan H. Fine, for the Defendants

HEARD: June 29, 2017

CASE CONFERENCE ENDORSEMENT

DIAMOND J.:

[1] At the request of the defendants, a telephone case conference proceeded this morning before me as Case Management Judge to address the defendants’ request that the factum filed by the plaintiff on the upcoming motion for summary judgment (scheduled to proceed on July 5-6, 2017) be struck out in its entirety.

[2] On December 15, 2016, my colleague Justice Matheson released an Endorsement which allowed the Defendants’ appeal of the decision dated May 3, 2016 of Master Haberman. Justice Matheson’s Order precluded the plaintiff from amending its Statement of Claim to add “extensive and serious allegations” which sought to “change the shape of the case”.

[3] The defendants submit that large portions of the plaintiff’s factum now repeat and argue the very same serious allegations which were precluded by Justice Matheson’s Order. The plaintiff does not agree with this characterization of its factum, and submits that its factum properly advances the positions set out in the Statement of Claim.

[4] The defendants initially asked that I strike out the entire factum and grant the plaintiff leave to re-file a revised factum. In response, I advised counsel for the parties that such relief was properly the subject of a formal motion. The issue then became whether the motion for summary judgment be adjourned to permit the defendants the opportunity to first bring their motion to strike under Rule 25.11 of the Rules of Civil Procedure (which allows the Court to strike out a pleading “or other document”), or alternatively to have the defendants bring their motion to strike at the outset of the motion for summary judgment.

[5] The defendants submit that they will suffer substantial prejudice if the judge presiding over the motion for summary judgment reads the plaintiff’s factum, even if the judge ultimately agrees with the defendants and strikes out all or a portion of the plaintiff’s factum. I disagree. As held in Jacob v. Playa del Agua Development Limited Partnership, separate preliminary motions under Rule 25.11 should be discouraged and only be granted in the clearest of cases, for questions of relevance or admissibility ought to be left to the judge hearing the main motion. I adopt the rationale of Master MaCleod in Black Hawk Mining Ltd. v. Kerramerican Inc.:

“There is no doubt that Rule 25.11 is broad enough to encompass an affidavit and in an appropriate case the court may strike out portions of an affidavit on the basis of the grounds set out in the rule. I appreciate the purpose of the preliminary motion was to avoid the expense, time and uncertainty involved in cross examining on an affidavit that might ultimately carry no weight with the court should the plaintiff’s objections to it prove valid. Nevertheless the procedure of bringing a preliminary motion to strike out affidavit material independently of the main motion should be reserved for only the most egregious cases in which it would be inappropriate for the material to come to the attention of the master or judge hearing the main motion. If there is any question that evidence could be admissible or could carry weight or if the motions judge or master would have the discretion to admit evidence despite apparent non compliance with a rule then in my view the matter is better left to the motion. It is not the function of masters to pre-screen evidence and keep it from a motions judge. The principle is no different if I am hearing the motion myself. Unless it is clearly and gravely problematic, the evidence is better assessed at the motion itself.”

[6] Further, factums are not evidence. The parties are relying upon a very lengthy record at the return of the motion for summary judgment. There may be significant overlap in the defendants’ submissions on both the motion to strike and the motion for summary judgment.

[7] While the judge presiding on the motion for summary judgment will control that process, I decline to adjourn the motion for summary judgment and order that the defendants’ motion to strike proceed at the outset on July 5, 2017. The defendants shall serve their Notice of Motion upon the plaintiff by the end of today. The plaintiff may serve and file a factum responding to the defendants’ motion to strike by no later than 1:00 pm on July 4, 2017.

Diamond J. Released: June 29, 2017