SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: Ho v. Lau, 2017 ONSC 6116

COURT FILE NO.: CV-16-011371-00CL

DATE: 20171013

RE: GALLANT HO, Plaintiff

AND:

CECILIA LAU, Defendant

BEFORE: Sanfilippo J.

COUNSEL: Paul Fruitman, for the Plaintiff

Richard Swan and Gannon G. Beaulne, for the Defendant

HEARD: October 12, 2017

ENDORSEMENT

A. Overview of Proceedings

[1] This action is brought by Gallant Ho against Cecilia Lau for a declaration that Mr. Ho is the true beneficial owner of the companies associated with the Agincourt Professional Centre and formerly associated with the Agincourt Mall. Mr. Ho also seeks an order directing to him the entire proceeds from the 2015 sale of the Agincourt Mall.

[2] The defendant, Cecilia Lau, is the plaintiff’s former spouse. Ms. Lau has defended this action on the basis, amongst others, that she, and not Mr. Ho, is the rightful owner of the companies associated with the Agincourt Professional Centre and the Agincourt Mall. Ms. Lau thereby pleads that she is entitled to the proceeds from the sale of the Agincourt Mall.

[3] Ms. Lau advanced a counterclaim for spousal support, accounting of personal assets and other family law relief. On January 23, 2017, at the return of a motion to strike this counterclaim, an agreement was reached for the severing of the counterclaim to allow these family law issues to be brought in a separate proceeding in Family Court.

[4] An order was rendered by Conway, J. on January 23, 2017, allowing for the withdrawal of the counterclaim, without prejudice to the filing of an amended counterclaim, to allow the claim for spousal support and other family law relief to be advanced as a separate proceeding in Family Court. This order also provides that documents exchanged in the family law proceeding and in the within action will not be subject to the deemed undertaking rule or the implied undertaking rule as between the parties in these two proceedings.

[5] The family law claims originally pleaded by Ms. Lau in the now-amended counterclaim now form the subject matter of an application in the Family Court (the “Family Law Proceeding”) wherein Ms. Lau is the applicant and Mr. Ho is the respondent.

[6] The amended pleadings in the within action, necessitated by the withdrawal of the family law issues and the resultant amendment of the counterclaim, were completed on May 26, 2017.

[7] Since June 13, 2017, the parties have attempted, without success, to implement a discovery plan, as provided for by Rule 29.1.

[8] By endorsement rendered by R.S.J. Morawetz on September 11, 2017, the within action was transferred from the Commercial List to the Civil List and was ordered to be subject to case management.

[9] On October 2, 2017, I was appointed the case management judge.

[10] The first case management session was conducted on October 12, 2017.

B. Position of the Parties

[11] The materials filed in advance of the first case management session made clear that the parties have a differing view concerning the manner by which this action ought to proceed.

[12] Counsel for the plaintiff sought implementation of a comprehensive discovery plan to allow for the completion of documentary production and the progression of this action procedurally. In support, the plaintiff relies upon the procedural entitlements in Rule 29.1 (discovery plan) and with it Rule 30.03 (requirement for delivery of affidavit of documents) and Rule 31.04 (party’s right to initiate and conduct examination).

[13] Counsel for the defendant submits that it would be productive to conduct a mediation session and that the initial documentary production ought to be tailored to the most efficient scope required to conduct an effective mediation session. Underlying this submission is the requirement under Rule 24.1.09 that a mediation session shall be conducted within 180 days after the first defence has been filed but with full regard to the principle set out in Rule 1.04 that a proceeding be conducted in the “just, most expeditious and least expensive” manner available.

[14] The main contention by counsel for Ms. Lau is that the most expeditious and efficient manner by which to proceed in the within action would be to restrict the discovery plan, and through it the scope of production, to that reasonably necessary for a productive mediation session as opposed to the scope of production to which the parties are otherwise entitled. It is noteworthy that the parties have not yet agreed on a date for mediation and have not yet agreed on the selection of a mediator.

[15] Counsel for Mr. Ho submits that the amount realistically in issue in this action is $50 Million, and that his client’s documentary assembly, in accordance with the full discovery plan proposed by the plaintiff, is already complete. Given the monetary amount said to be in issue and the breadth of materials necessary to address the complex corporate holdings pertaining to the disputed properties, the plaintiff seeks to exercise full discovery entitlements prior to mediation.

[16] I have noted that a motion is pending in the Family Law Proceeding for December 14, 2017 whereby Mr. Ho seeks to dismiss the Family Law Proceeding and Ms. Lau both defends this summary dismissal motion and seeks production by Mr. Ho of a financial statement and other documentary productions specific to the family law relief in issue. It is suggested by counsel for Ms. Lau that the determination of the motion pending in the Family Law Proceeding has sufficient influence on this action to render it advisable for this action to remain in abeyance until after December 14, 2017. It is apparent, however, that the scope of documentary production in this action is broader than in the Family Law Proceeding simply by the nature of the matters placed in issue by the pleadings.

C. Specific Case Management Directions

[17] It is inconsistent with the principles of case management to allow a case to remain in abeyance unless the abeyance is in deference to a determination in an alternate or companion proceeding that might prove determinative of the matters in issue. The motion in the Family Law Proceeding will not be determinative of the issues in the within action: not even the production issue. Further, given the possibility of appeal, given that Mr. Ho is seeking a dismissal of the Family Law Proceeding, there is the prospect that holding this action in abeyance pending the determination of the December 14, 2017 motion in the Family Law Proceeding could cause considerable delay.

[18] I have taken into consideration that the record discloses that the plaintiff is elderly and that this action was initiated over 17 months ago.

[19] Effective case management requires that the action be moved forward expeditiously, mindful of the need for efficiency and proportionality, always with at least one process step scheduled and being actively implemented. There is a considerable monetary amount in issue in this action. The balancing of the parties’ procedural entitlements, in the framework of the efficiency and proportionality required by Rule 1.04, requires that this action be advanced notwithstanding the pending motion in the related Family Law Proceeding.

[20] The following table timetable will be followed:

(a) the plaintiff may advance a motion for the implementation of a discovery plan by return of motion before a Master on November 24, 2017. This date has been cleared with the motions office and has been determined to be available to counsel;

(b) counsel are encouraged to continue the dialogue, understood to be currently underway, to seek to reach consensus on the terms of an acceptable discovery plan or a modified discovery plan in anticipation of mediation, as they are advised. Should agreement be concluded on a discovery plan, in total or in modified form, such that the Master’s motion is no longer required, appropriate steps are to be taken to release the motion date;

(c) the documentary production required to be made by the discovery plan, either in the scope ordered by the Master or in a modified form by agreement between the parties, will be completed by exchange of draft affidavits of documents by January 10, 2018;

(d) A further case conference will be conducted on January 11, 2018 at 9:00 am. Arrangements for this will be communicated to counsel for the parties as the date approaches;

(e) Notice is hereby provided under Rule 50.13(6) that a timetable will be implemented at the case conference on January 11, 2018 for the following:

(i) Any motion that counsel for the defendant might be advised to advance to consolidate this action with the Family Law Proceeding. Leave for such a motion was specifically provided for by the Order of Conway, J., of January 23, 2017;

(ii) Conduct of examinations for discovery;

(iii) Conduct of a mediation session.

(iv) Appointment of a mediator.

[21] No motion may be brought in this action before being considered at a case conference.

[22] Any party who seeks to address an issue identified in this action between now and the next scheduled case conference of January 11, 2018, and who considers that a case conference would assist in the expeditious and efficient handling of any such issue, may request the scheduling of a further case conference by email to my assistant in the same manner that the first case conference was organized.

[23] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.

[24] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with in accordance with Rule 77.07(6).

Sanfilippo J.

Date: October 13, 2017