Citation: Rubner v. Lower Fourth Limited, 2017 ONSC 7520

COURT FILE NO.: CV-15-520375

DATE: 2017-12-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSEPH RUBNER, BRENDA BISTRICER, EDA RUBNER PERSONALLY and o/a EDA RUBNER REALTY, EDA RUBNER and EDA RUBNER o/a EDA RUBNER REALTY as TRUSTEE FOR JOSEPH RUBNER, BRENDA BISTRICER and THE BISTRICER/RUBNER FAMILY TRUST and THE BISTRICER/RUBNER FAMILY TRUST

Plaintiffs

– and –

LOWER FOURTH LIMITED, MATTAMY (SIXTH LINE) LIMITED, MATTAMY (OAK) LIMITED, MATTAMY (PENLOW) LMITED, 1214850 ONTARIO INC., MATTAMY REALTY LIMITED, RULAND REALTY LIMITED, ISMOR INVESTMENTS LIMITED and MANJACK CONSTRUCTION LIMITED, both personally and carrying on business under the firm name and style of M.M.&I. Developments and M.M.&I. Management, MATTAMY HOMES LIMITED, MATTAMY (PENDENT) LIMITED and BRATTY BUILDING,

Defendants

BEFORE: F.L. Myers J.

COUNSEL: Arieh Bloom for Marvin Rubner and Joseph Rubner as joint attorneys for property of Eda Rubner, Fred Tayar for Alex Bistricer, Ian Matthews for Mattamy Homes, Aaron Blumenfeld for Marvin Rubner, Adam Hirsch for Michelle Levinson Wendy Greenspoon-Soer for Brenda Bistricer

HEARD: December 12, 2017

CASE CONFERENCE endorsement

Background and Outcome

[1] This case conference involves a complaint by Marvin Rubner against Alex Bistricer’s recent retainer of new counsel, Fred Tayar. For the reasons discussed below, rather than scheduling and hearing a motion to remove Mr. Tayar, which would undermine case management efforts for the past year, I exercise case management authority under Rule 50.13 (6)(c) and (d)(i) to direct and order summarily that Alex Bistricer may not be represented by Mr. Tayar in these proceedings at this time.

[2] As I make clear below, I make no finding that Mr. Tayar is in a conflict of interest or that his retainer puts at risk the release of confidential information. Requiring Marvin Rubner to bring a motion to assert these issues would undermine the scheduling efforts engaged in for much of the past year. Allowing Mr. Bistricer to deliberately undermine the multi-party, multi-proceeding schedule by retaining the one lawyer whom he knows will evoke an objection from Marvin Rubner in the midst of the aggressive examination schedule that is currently under way is an affront to the administration of justice. It is necessary to invoke case management authority to intervene summarily to protect the parties’ rights to a fair and timely resolution of these proceedings. The booking of a motion to remove Mr. Tayar would itself undermine the schedule that has been in place and been acted upon for many months.

[3] The culture shift implemented by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, requires that case management judges be empowered and be willing to curtail summarily deliberate tactics that undermine the administration of justice by interfering with the goal of providing a fair and just civil process that is timely, efficient, affordable, and proportionate.

The Facts

[4] The parties have been engaged in a case management process in order to try to bring order to no less than six separate proceedings (not counting counterclaims and crossclaims within proceedings). As noted in my endorsement of March 7, 2017, I was engaged to provide case management oversight to these matters by endorsement of Wilton-Siegel J. after discussions among counsel. Some of the proceedings were already several years old and they all had stalled. The goal of the case management process was “to assist counsel get these cases organized so that they can move forward as efficiently, affordably, and proportionately as circumstances allow.”

[5] This endorsement applies to all of the matters under my direction as listed in the March 7, 2017 endorsement plus the matter more recently commenced by Brenda Bistricer.

[6] There are two distinct pieces to these actions. First, there is an underlying issue between Mattamy Homes and the defendants in this action, on the one hand, and members of the Rubner family on the other. The issue involves affairs among the owners of Lower Fourth Limited – a real estate investment vehicle for Rubner family interests and the defendants.

[7] Resolution of the issues involving the affairs of Lower Fourth has been put on hold because of issues among the Rubner family members. Ownership of the family’s interest in Lower Fourth is in dispute. Eda Rubner, the matriarch of the family, lacks capacity. Whether one or some combination of Eda Rubner, her holding company, a family trust, one or more of Eda Rubner’s children (adults all – Marvin Rubner, Joseph Rubner, and Brenda Bistricer), or the Bistricers’ daughter Michelle Levinson, own beneficially all or a part of the family interest in Lower Fourth is very much in dispute.

[8] Understanding Eda Rubner’s affairs brings into play allegations among the Rubner siblings concerning how their mother’s funds had been handled (i.e. spent) and whether any of the siblings is or ought to be liable to repay funds improperly obtained from their incapacitated mother’s accounts.

[9] There is a separate issue as to whether Eda’s jewelry has been purloined.

[10] While there are trusts in play, Eda Rubner is a trustee who lacks capacity. Regularizing representation for her, her trust(s), her holding company, and other interests was an early order of business.

[11] Then, as among Eda Rubner’s children, an urgent issue arose because Joseph Rubner switched alliances. He initially sided with his sister Brenda Bistricer. They jointly retained the same lawyer. Then Joseph left that counsel to join forces with his brother. The lawyer who had acted jointly for Brenda Bistricer and Joseph Rubner purported to continue to act for Brenda Bistricer alone against his former client Joseph Rubner in the same matter.

[12] I noted in March that there was no reason for all of these matters to be heard together. I suggested that the Rubner family might want to consider refraining from airing their dirty laundry in the proceeding with Mattamy and their other investment partners.

[13] In my March 7, 2017 endorsement, I suggested that the issue of joint counsel being unable to act might be resolved consensually. I scheduled a motion as well in case it was necessary. (It was.) I noted in the endorsement that:

Under Rule 50.13 (6) the parties are on notice that I will resolve summarily any interlocutory matters that might arise that could otherwise delay the schedule.

[14] I have heard many case conferences by telephone in these actions throughout this past year, often on short notice. I have made many oral and short written rulings, summarily, to break logjams i.e. to resolve matters that had arisen and put at risk the progress of an existing schedule.

[15] I heard a motion to remove from the record the lawyer who had acted jointly for Brenda Bistricer and Joseph Rubner and then sought to continue acting for Brenda Bistricer against Joseph Rubner with no prior written disclosure of the nature of the joint retainer and no consent of Joseph Rubner both as expressly required by the relevant Rules of Professional Conduct. Since that counsel was removed, Brenda Bistricer and her husband Alex Bistricer have been represented jointly by Ms. Greenspoon-Soer.

[16] The Bistricers objected to the neutral third party proposed by Marvin and Joseph Rubner to act as litigation guardian for Eda Rubner. They opposed for no reason other than the fact that the neutral party had been proposed by the brothers. The Bistricers proposed alternatives including Mr. Tayar who was not then acting as counsel. Marvin Rubner vociferously objected to Mr. Tayar being involved as Eda Rubner’s litigation guardian. Marvin Rubner filed evidence that Mr. Tayar had been his lawyer around 20 years ago in a matter involving a corporation that is a defendant in one of the proceedings that I am case managing.

[17] By endorsement dated July 7, 2017, I appointed the neutral party who had been proposed by Marvin and Joseph Rubner as litigation guardian for Eda Rubner in all of these proceedings. I noted that Mr. Tayar “had baggage” and was not “independent” of the family.

[18] “In all,” I wrote, “the goal is to reduce issues not to create new ones.”

[19] In the July 7, 2017 endorsement, I required counsel to discuss scheduling for further steps. I noted that:

Counsel are to schedule all litigation cooperatively putting the ethical requirement of a fair hearing process ahead of client’s tactical goals (see §5.1-1 (1) of the Rules of Professional Conduct re: obligation to “promote the parties right to a fair hearing.”) No motions are to be included in the schedules without leave.

[20] I also set a case conference for July 17 and gave notice that under Rule 50.13 (6) I would finalize the schedules and deal with any requests for motions during that case conference.

[21] On July 17, 2017, the parties agreed upon a schedule for competing motions to be heard on February 5 and 6, 2018. They have been proceeding to implement that schedule over the ensuing five months. Currently, there are two main issues set for February. Alex Bistricer seeks to have Mattamy’s action against him dismissed under Rule 20. In addition, the three Rubner siblings seek to resolve the nature of the interests in Eda Rubner’s holdings. This will resolve some issues among them and should clarify ownership of the family’s interest in Lower Fourth to enable the Mattamy matter to proceed.

[22] In late August, I agreed to allow Marvin and Joseph Rubner to bring forward claims in February against Brenda Bistricer for an accounting if it was determined that she was not entitled to funds that she received from her mother. Brenda Bistricer then brought a new application trying to add claims against her brothers for February in case they are found to have obtained funds to which they were not entitled. By endorsement dated October 31, 2017, I wrote,

While I am reluctant to increase the scope of matters in issue, I am even more reluctant to let matters get deflected from planned resolution. The key purpose of the booked hearings is to unlock the logjam to get these matters heard and resolved despite the parties’ efforts to slant the process one way or the other…While a deep dive into the uses of every dollar obtained by each family member would expand the scope of examinations among the family, the simple fact is that until they decide to settle, everything is on the table.

I understand that Mattamy has no legal interest in the intra-family accounting. The family has chosen to raise these matters in the context of this underlying dispute with Mattamy. Moreover, they have brought motion after motion inter se with the effect of delaying all the parties in the underlying dispute from moving forward. Perhaps the context of the overall dispute will give the family members pause before casting stones and airing more of their laundry. I doubt it. In my view, pushing all matters on to a hearing, under careful case management, is the most efficient way to get these cases resolved fairly and in the interests of justice.

If matters arise during examinations that cannot be resolved by counsel speaking in good faith, I may be contacted in real time if available. The new application will be heard on Feb, 5 and 6, 2018 as well. [Emphasis added.]

[23] My real time availability to resolve interlocutory matters summarily under Rule 50.13 (6) has been used frequently by the parties. Within a week, I heard argument during a case conference in which Joseph Rubner sought to strike evidence about historic sibling grievances adduced in Brenda Bistricer’s affidavit for the February motions.

[24] In rejecting the effort to strike evidence in advance of the hearing for which it is adduced, I commented on my growing concern that tactical motions were interfering with the efficient progress of the litigation. I made reference to the decision of D.M. Brown J. (as he then was) in 1196303 Ontario Inc. v Glen Grove Suites, [2012] OJ No. 378 (ON SC) with which I wholeheartedly agree. I invited counsel to lead their clients to a culture shift in which “litigation is not ever-expanding, outrageously costly, and maximally hurtful.”

[25] I was contacted by counsel yet again this week to advise that a matter had arisen in the midst of scheduled examinations by summons to witness under Rule 39.03 and cross-examinations that required urgent input. At a case conference on December 12, 2017, counsel for Marvin Rubner objected to Alex Bistricer having recently left the joint representation of Ms. Greenspoon-Soer and retaining Mr. Tayar to act for him alone. Marvin Rubner took the position, as he had months ago, that Mr. Tayar was in a conflict of interest by reason of having acted for him decades ago in relation to a debt to a corporation that is a defendant in one of the actions.

[26] At the time that I was contacted, Marvin Rubner had been cross-examined by counsel for several parties but then refused to be cross-examined by Mr. Tayar and had walked out of the examination.

[27] Mr. Tayar says that he has no recollection of a retainer 20 years ago beyond knowing that it happened. He has no confidential information. His file was destroyed eight years ago. He says that counsel for Marvin Rubner lay in the weeds by not disclosing at examinations of others over the past few weeks that he would object to Mr. Tayar examining Mr. Rubner.

[28] Mr. Rubner seeks to schedule a motion to remove Mr. Tayar from the record. Mr. Tayar is going away for two weeks this weekend. If a motion is scheduled, it cannot be heard until mid-January to allow time for Mr. Tayar to respond and for the inevitable cross-examinations that will follow.

[29] In the meantime, the parties have agreed that other examinations will proceed. Mattamy and Michelle Levinson (the Bistricers’ adult daughter) have no position on the issue of Mr. Tayar participating but seek to protect the February dates. Mattamy and its co-defendants have been waiting since 2015 for the family to cut through their issues so that Mattamy and the other investors can have their day in court to deal with Lower Fourth. Ms. Levinson has no interest in being involved in the disputes among her parents, uncles, and aunts. She just wants to get the case against her resolved.

[30] Realistically, the February motion dates are in peril. If a motion is heard in mid-January, no matter what the outcome, the cross-examination of Marvin Rubner by Mr. Bistricer will be delayed and it probably will not be able to be rescheduled in time to protect the February dates if this late-breaking issue is handled by motions practice in the usual way.

[31] In addition, counsel for Marvin Rubner fears that if I book a motion for mid-January, he will be precluded from dealing with his client who will remain in the midst of cross-examination for the interregnum. Counsel asks that he be freed of the ethical prohibition on communicating with a client who is under cross-examination so as to be able to deal with Marvin Rubner on refusals, undertakings, and to prepare for examinations of others.

[32] Moreover, counsel for Marvin Rubner ask for a time limit to be placed on any further examination of him because examinations of parties opposite have taken only one day. The examinations of Marvin Rubner by Mattamy and others have already taken up the best part of a day. Mr. Tayar and Ms. Greenspoon-Soer say that they had no idea that after they allowed counsel for Mattamy to cross-examine Marvin Rubner first, counsel for Marvin Rubner was then going to argue that they had limited or lost their rights to undertake full examinations of their own.

Analysis

[33] It seems to me that I have three options:

i. Schedule the motion to remove Mr. Tayar and adjourn the motions set for February;

ii. End case management, cancel the February dates, and leave the parties to their own devices in the ordinary course to spend their money and have the litigation by tactics, ambush, and attrition that at least some of them seem to desire; or

iii. Take steps to protect the schedule in order to protect the non-sibling parties’ rights to efficient, affordable, proportionate proceedings and to prevent the Rubner siblings from abusing the administration of justice.

[34] I indicated in my first endorsement on March 7, 2017, that I had concerns about the fitness of these cases for case management. Case management often assists because, among other things, parties understand that the same judge or judicial officer will hear all issues. They understand that there may be a benefit or case management premium available by setting a tone of reasonableness with the case management judge.[^1] This gives them pause before raising matters that might make them appear unreasonable to that judge or officer. But this is not always the case. Others can view the quick and inexpensive access to a judge in case management as a license to try on all manner of tactical games with little fear of significant costs if others object. I alluded to this concern in para. 8 of the March 7, 2017 endorsement as follows:

I do not expect to necessarily keep these cases under case management beyond organizing them to move forward. Even if parties cooperate, the determination of the two issues discussed above [appointing a litigation guardian for Eda Rubner and considering if jointly retained counsel could continue to act for Brenda Rubner after Joseph Rubner left] will take at least four to six months to resolve. I am prepared to try to assist the parties get organized to move forward with alacrity towards the earliest, most affordable, and proportionate resolution that is available. I do not intend to become the parties’ private, free dispute resolver on matters where reasonable parties ought to cooperate and agree. If the parties are amenable to cooperating on scheduling, case management may be more useful and desirable.

[35] It is apparent that the Rubner siblings and their counsel have not been able to cooperate on scheduling. If these cases involved only the three Rubner siblings, I would consider seriously terminating case management to leave them in a legal war with all the attendant costs and delays that their creativity can inflict on each other.

[36] Apart from that outcome being offensive institutionally, the Rubner siblings are not the only parties. I have spoken throughout about the “key purpose” to break the logjams blocking resolution of the parties’ rights in a fair and expeditious process for all including the incapacitated Eda Rubner, her granddaughter Michelle Levinson, and the non-Rubner investors in Lower Fourth,. I have written about the importance of not using process to create new issues. Either booking a motion to consider the removal of Mr. Tayar or ending case management undoes months of effort by those truly attempting to move forward. Doing either exposes innocent parties to prejudice at the hands of parties who abuse the process.

[37] The issue is whether the court can police tactical steps in proceedings by summary, informal processes without resorting to motion practice.

[38] Litigation tactics aimed at delay, running up costs, and motivations divorced from the goal of seeking fair resolution of the dispute in an efficient, affordable, proportionate process is a significant contributing cause of the civil justice system having become inaccessible to most Canadians as discussed by the Supreme Court of Canada in Hyrniak, at paras. 1 to 3. Access to justice requires that there be a way to enhance the goals of civil justice where just booking a motion will undermine parties’ rights to an efficient, fair and timely resolution.

[39] I accept that Alex Bistricer normally has a right to counsel of his choice and that Mr. Tayar should be entitled to respond to the allegations against him if they are to be advanced. But allowing those issues to come to the fore now will put at risk the schedule that has been agreed upon, ordered, and which witnesses have travelled and counsel have cancelled other appointments to meet.

[40] Requiring the issue of Mr. Tayar’s retainer to be litigated puts the imperative of motion practice ahead of the goals of ensuring a fair and just resolution through an efficient, affordable, and proportionate process. Hryniak, at paras. 1 and 23 to 25.

[41] Alex and Brenda Bistricer were jointly represented by Ms. Greenspoon-Soer until November 29, 2017. Then, on the eve of commencement of an intensive schedule of cross-examinations and examinations under summons to witness, Mr. Bistricer decided to obtain new counsel. He chose the one counsel of the 25,000 in the GTA whom he knew Marvin Rubner would object to as having a conflict of interest. He knew because it happened already in this proceeding. He knew because I have already ruled that Mr. Tayar was not independent and involving him as litigation guardian as requested by the Bistricers raised new issues instead of narrowing them.

[42] I want to be clear that I make no finding at all that Mr. Tayar is acting in a conflict of interest. I make no finding of there being any risk to Marvin Rubner’s confidential information, if there even is any remaining with Mr. Tayar at this late date. I make no criticism of Mr. Tayar at all. But the Bistricers’ timing and choice to retain Mr. Tayar can only be seen to have been designed to force Marvin to waive his concerns and undergo cross-examination by counsel to whom he objects in order to protect the schedule or to bring a motion to remove Mr. Tayar and lose the February motion dates to the prejudice of all of the parties. Allowing Mr. Bistricer to make a deliberate, untimely, elective, unilateral act that puts Mr. Rubner to that choice is an affront to the administration of justice. If Mr. Rubner is cross-examined by Mr. Tayar, he may be facing a most inapt circumstance that itself is a very significant affront to the administration of justice if Mr. Rubner’s concerns are meritorious. Yet putting in place a process to resolve that issue would result in an adjournment of the February motions and that also is an affront to the administration of justice.

[43] Mr. Tayar is a highly experienced counsel. But it is no slight to him to suggest that there are many others in Toronto and throughout the province who also have strong credentials. Mr. Bistricer’s choice to involve Mr. Tayar on the eve of examinations was an act of tactical mischief.

[44] To book a motion to remove Mr. Tayar for mid-January is to admit defeat. If a culture shift is to replace litigation tactics with active case management and proportionality, then case management judges have to be able to step in and prevent abusive actions. If Alex Bistricer’s “right” to counsel of his choice, means that Mr. Tayar can only be removed on a motion assessing the existence of a disqualifying conflict of interest, then there is no change or shift as motions always take priority. Parties will remain able to take steps that impair a fair, just, and early outcome, which can be remedied only by motions practice divorced from the merits. Tactical motions that do not advance the resolution of the merits make litigation slow, unaffordable, disproportionate, and ultimately inaccessible.

[45] Rule 50.13 (6) provides:

At the case conference, the judge or case management master may, if notice has been given and it is appropriate to do so or on consent of the parties,

(a) make a procedural order;

(b) convene a pre-trial conference;

(c) give directions; and

(d) in the case of a judge,

(i) make an order for interlocutory relief, or

(ii) convene a hearing.

[46] Rule 50.13 was promulgated by the Rules Committee subsequent to and in response to the Hryniak decision. It is an important arrow in the quiver of judges to implement case management processes to enforce the culture shift required by the Supreme Court of Canada. It is a direct answer to the call for active case management of summary judgment motions in para. 70 of Hryniak. But on its terms, it goes much farther than that. Judges are empowered to make any order for interlocutory relief as long as they are satisfied that the parties have had sufficient notice. Case management orders are being made by judges in a wide number of circumstances to cut through procedural morasses and implement the culture shift. See for example, Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340, at para. 21, in which Edwards J. resolved evidentiary issues with case management considerations; in Zuppinger and Yan v. TSCC No. 2139 et al,, 2017 ONSC 6771 Sanfilippo J. gave broad case management directions to assist with organizing a complex set of proceedings; in Griva v Griva, 2016 ONSC 1820, in which Firestone J. used Rule 50.13 to refuse to schedule a motion for partial summary judgment where doing do “would not serve the principles of ‘proportionality, timeliness and affordability’”; and in Schenk v. Valeant Pharmaceuticals International, Inc., 2017 ONSC 5101, at para. 8, I used case management directions to adopt a US initiative aimed at encouraging court appearances and mentoring of women and racialized lawyers who are predominantly at the junior end of the profession.

[47] In my view, Rule 50.13 (6) empowers case management judges to give directions and to make case management orders summarily where necessary to implement the culture shift so as to protect and enhance the administration of justice and access to civil justice in Ontario.

[48] In this case, the counsel engaged in correspondence dated December 6, 7, and 11, 2017 that establishes that they understood what was on the table at the case conference. I have been clear throughout that I have been utilizing the authority to schedule, give directions, and make interlocutory orders under Rule 50.13 (6) summarily at case conferences to keep this matter on track and moving toward resolution as efficiently as possible. In my view, in the circumstances of this case, it is necessary to protect the integrity of the schedule; it is necessary to protect the scheduling orders that have been made; and it is necessary to preserve the interests of justice in a fair and just outcome to direct and order under Rule 50.13 (6) that Mr. Bistricer be prohibited from being represented by Mr. Tayar at this time.

[49] Unilateral acts that disrupt the Court ordered schedule must be capable of being remedied quickly, through informal, summary process under Rule 50.13 (6) if case management is to replace motion culture and give primacy to the goals articulated by the Supreme Court of Canada in Hryniak.

[50] Similarly, I do not allow counsel for Marvin Rubner to impose limits on the timing of examination of their client that were not agreed upon or ordered in advance. Such opportunism and litigation by surprise is not appropriate. If examination of Marvin Rubner is conducting abusively, he can raise the issue at a case conference in real time. Absent prejudice or abuse, he too is to get on with the merits and leave tactics behand.

[51] Accordingly, I direct that:

i. Alex Bistricer may not be represented by Mr. Tayar or his firm in any of these proceedings at this time;

ii. Marvin Rubner remains under cross-examination and is to re-attend on a day to be agreed next week for examination for up to a further full day (10:00 a.m. to 11:30 a.m., 11:45 a.m. to 1:00 p.m., 2:00 p.m. to 3:15 p.m., and 3:30 p.m. to 4:30 p.m.) by Ms. Greenspoon-Soer and new counsel for Alex Bistricer if any.

[52] I am unaware of any conflict between the interests of Alex and Brenda Bistricer, Alex’s interests will effectively be advanced by Ms. Greenspoon-Soer’s examination whether Alex Bistricer chooses to re-retain her or not. If he wants someone else and can get her or him up to speed next week that is fine too. Any time squeeze is of his own making.

F.L. Myers J.

Date: December 15, 2017

[^1]: Myers, “Justice Farley in Real Time,” Annual Review of Insolvency Law, 2006 (J. Sarra, Ed., Thomsom Carswell, 2007)