Superior Court of Justice
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIC R. INSPEKTOR ET AL
Plaintiffs
– and –“
MELVYN L. SOLMON
Defendant
COUNSEL:
Eric R. Inspektor, self-represented and acting in person
Ian McKellar, for the Respondent
HEARD: November 20, 2017
CASE CONFERENCE ENDORSEMENT
1Pursuant to the Order of Justice Firestone as Civil Team Leader in the Toronto Region, I have been acting as case management judge in this proceeding since early October 2017.
2At a chambers appointment held on October 16, 2017, the parties agreed upon a consent timetable for steps leading up to the defendant’s motion for summary judgment currently scheduled for December 14, 2017.
3On November 1, 2017, the plaintiffs brought a motion before Master Graham seeking, inter alia, an order compelling the defendant to serve an affidavit of documents in advance of the said motion for summary judgment.
4By Endorsement released the same day, Master Graham denied the plaintiffs’ request but ruled that prior to the motion for summary judgment “the plaintiff should be able to obtain and cross-examine on all of the defendant’s documents relevant to the issues on the motion.” At that time, the cross-examinations were scheduled to proceed on November 9, 2017.
5Neither party chose to proceed with cross-examinations on that date. On November 14, 2017 the defendant served a supplementary motion record which included further affidavit material. Although no specific deadline for “reply material” was set out in the original consent timetable, the plaintiffs take the position that this supplementary motion record was served in breach of my October 16, 2017 endorsement, and in contravention of the provisions of Rule 39.02(2) of the Rules of Civil Procedure.
6To begin, I do not believe that Rule 39.02(2) has been invoked. That Rule applies to a party “who has cross-examined on an affidavit delivered by an adverse party”. As stated, no cross-examinations have taken place to date, and as such leave of the court is not required under that Rule.
7However, I do understand the plaintiffs’ position that they were led to believe that as at November 9, 2017 all of the defendant’s material in support of his motion for summary judgment was delivered. The plaintiffs rightfully argue that they have the right to respond to the defendant’s supplementary motion record, and to proceed with cross-examination upon the new matters raised therein.
8Accordingly, the December 14, 2017 date will need to be adjourned. The parties have agreed to reschedule the defendant’s motion for summary judgment to March 13, 2018 for a half day hearing, and that date has now been secured with the scheduling office.
9I assume the parties can arrive at a mutually agreeable timetable for any remaining steps leading up to the new hearing. If not, they may contact my assistant Michelle Giordano to arrange a further telephone case conference.
Diamond J.
Released: November 22, 2017
CITATION: Inspektor v Solmon, 2017 ONSC 6948
COURT FILE NO.: CV-16-548698
DATE: 20171122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIC R. INSPEKTOR ET AL
Plaintiffs
– and –
MELVYN L. SOLMON
Defendant
CASE CONFERENCE ENDORSEMENT
Diamond J.
Released: November 22, 2017