COURT FILE NO.: CV-16-00550104
DATE: 20180611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PROFESSIONAL FIRE FIGHTER’S ASSOCIATION
Plaintiff
– and –
PAUL ATKINSON, COLIN GRIEVE, PROFESSIONAL FIREFIGHTERS ADVOCATES INC., SHERWIN H. SHAPIRO, SHAPIRO LAWYERS PROFESSIONAL CORPORATION, FRANCES FURMANOV and FRANCES FURMANOV PARALEGAL SERVICES
Defendants
Rahool Agarwal for the Plaintiff
John A. Campion and Anna Husa for the Defendants, Paul Atkinson, Colin Grieve and Professional Firefighters Advocates Inc. (“the Atkinson defendants”)
HEARD: June 8, 2018
ENDORSEMENT
DIAMOND J.:
[1] On June 8, 2018, as the Case Management Judge assigned to this proceeding, I heard the plaintiff’s motion seeking answers to questions refused and/or taken under advisement from the cross-examination of Gavin Tighe held on March 6, 2018 (the “refusals motion”). The Tighe affidavit was sworn in the context of what I have previously described as the “trust funds motion”, currently scheduled to proceed before me on June 25, 2018.
[2] The history of the trust funds motion is important to review for the purpose of the disposition of the refusals motion. To begin, I am reproducing the salient contents of my Case Conference Endorsement released on February 15, 2018 (my emphasis in bold):
“An in-person case conference was held today before me as Case Management Judge. An issue has recently arisen with respect to funds currently being held in trust by Gardiner, Roberts (solicitors for the defendants Paul Atkinson, Colin Grieve and Professional Firefighters Advocates Inc. – the “Atkinson defendants”), and in particular whether the parties had agreed that those funds be impressed with specific terms and obligations.
Gardiner Roberts wishes to release some or all of the funds in trust in accordance with its clients’ instructions, and has given notice to the parties of those intentions. The plaintiff opposes the release of any such funds on the basis that there were representations and admissions by the Atkinson defendants, and in turn an agreement between the parties, that the funds would remain in trust pending the disposition of this proceeding or further agreement between the parties.
A motion to determine whether the funds are held in trust pursuant to an agreement (and if so upon what terms) shall proceed before me on March 28, 2018 for a 90 minute hearing.”
[3] It was clear that the issue to be determined on the trust funds motion was whether the parties (through their counsel) had agreed - expressly or impliedly - that the subject funds (approximately $366,000.00) would remain in trust pending disposition of this proceeding or further agreement between the parties.
[4] I then set a timetable for the exchange of materials on the trust funds motion. On February 27, 2018 (the deadline for delivery of the plaintiff’s materials), the plaintiff served a Motion Record which now also sought to obtain a Mareva injunction against the Atkinson defendants on an urgent basis. A further case conference proceeded before me that day, and by Case Conference Endorsement released on February 28, 2018 I refused to allow the plaintiff’s Mareva injunction motion to “jump the cue” ahead of the trust funds motion. I ordered that the plaintiff’s Mareva injunction motion could still be argued at a later date, and ended that Case Conference Endorsement with the following (again, my emphasis in bold):
“At the conclusion of argument of the trust funds motion, the parties may make submissions as to whether there should be any interim terms imposed upon the Atkinson defendants pending the scheduling of the Mareva injunction motion. This will of course depend upon my disposition of the trust funds motion.”
[5] On March 6, 2018 (the deadline set in my Case Conference Endorsement released on February 15, 2018), the Atkinson defendants delivered their materials which consisted of the Tighe affidavit. For reasons not fully explained to me during the June 8, 2018 hearing, the scope of the Tighe affidavit seems to go beyond the narrow issue of whether the parties (through their counsel) had agreed that the subject funds would remain in trust.
[6] Although the Tighe affidavit was prepared after the delivery of the plaintiff’s Mareva injunction motion materials, paragraph 3 of the Tighe affidavit explicitly stated that Tighe’s evidence responded to the Mareva injunction motion materials “only to the extent that the materials are relevant to the issue of the alleged agreement.”
[7] The plaintiff submits that the Tighe affidavit refers to and adopts the contents of a letter and enclosures dated January 31, 2018 from Mr. Campion to myself as Case Management Judge (the “Campion letter”). In the Campion letter, the Atkinson defendants take the position that the plaintiff has no colour of right to the subject funds based upon a theory which is arguably different that a position taken by the Atkinson defendants in their Statement of Defence and Counterclaim.
[8] In the Campion letter, the Atkinson defendants also state that they “do not have sufficient assets outside the amounts held by their lawyers to pay outstanding costs orders and their reasonable legal fees.”
[9] There were 34 questions either refused or taken under advisement at the cross examination of the Tighe affidavit. At my request and with my appreciation, counsel for the parties grouped those refusals into four categories:
Category #1 Questions directed to the truth of representations made in the Campion letter and the Statement of Defence and Counterclaim
Category #2 Questions related to whether the subject funds originated from Letters of Agreement signed between donor families and either the plaintiff or the Atkinson defendants
Category #3 Questions related to the source of the subject funds and the basis upon which the subject funds were placed into trust
Category #4 Questions related to the assets of the Atkinson defendants.
[10] The plaintiff argues that the questions in all four categories meet the semblance of relevance test set out in Ontario v. Rothmans Inc. 2011 ONSC 2504. As held by Justice Perell in Rothmans, even if the matter put in issue by an affiant may not be relevant to the issues to determined on the pending motion, the affiant may nevertheless be cross-examined upon that matter put in issue.
[11] For their part, the Atkinson defendants take the relatively simple position that none of the questions are actually relevant to the narrow issue directed by me to be resolved first, namely whether counsel for the parties entered into an agreement that the funds would remain in trust pending the disposition of this proceeding. While the Atkinson defendants acknowledge that the scope the Tighe affidavit exceeds that narrow issue, they contend that the questions may need to be answered at a later date (ie. after my disposition of the trust funds motion), but not at this time.
[12] I do not quarrel at all with the jurisprudence relied upon by the plaintiff. I also am of the view that the Atkinson defendants are essentially asking me to temporarily ignore the expanded scope of the Tighe affidavit and “put the horse back in the barn”. However, I must also be mindful of my role as Case Management Judge, and the purpose of case management generally, which is of course to ensure the parties are always moving toward a scheduled, efficient, proportional and affordable hearing. As held by my colleague Justice Myers in Schenk v. Valeant Pharmaceuticals International, Inc. 2017 ONSC 5101:
“The purpose of this case management process is to resolve the lawsuit as efficiently, affordably and proportionately as the interests of justice allow. The proceeding will be managed to move forward efficiently but not urgently. There should always be at least one process step scheduled and being actively pursued. Parallel scheduling of multiple steps should be expected.”
[13] The trust funds motion is scheduled to be heard in two weeks. In the event I find there is an agreement between the parties that the funds would remain in trust pending the disposition of this proceeding, that issue is effectively at an end subject to the plaintiff renewing its request to pursue its Mareva injunction motion. As such, the request for an Order compelling answers to the questions refused and/or taken under advisement may prove to be moot.
[14] On the other hand, if I find that there is no agreement between the parties that the funds would remain in trust pending the disposition of this proceeding, then I have already ordered (and the Atkinson defendants have already agreed) that the status quo arrangement will remain until further submissions from the parties are made on the issue of whether the subject funds can be released as per the instructions of the Atkinson defendants. In such circumstances, the questions refused and/or taken under advisement may indeed need to be answered and the plaintiff will be in a position to seek an Order to that effect.
[15] The parties have all admittedly incurred substantive legal fees to date, and adding another “motion layer” to this proceeding may prove to be unaffordable and inefficient in the current circumstances. It is certainly arguable that the questions in the four categories are relevant to the issues in the proceeding, but in my view they fall outside the narrow scope of the trust funds motion as I have directed. Accordingly, and with a view to achieving the most proportionate result, I am declining at this time to order the questions in the four categories to be answered. This order is without prejudice to the plaintiff’s right to renew its request for the same relief after my disposition of the trust funds motion.
[16] The costs of this motion are reserved to me as the Case Management Judge.
Diamond J.
Released: June 11, 2018
COURT FILE NO.: CV-16-00550104
DATE: 20180611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PROFESSIONAL FIRE FIGHTER’S ASSOCIATION
Plaintiff
– and –
PAUL ATKINSON, COLIN GRIEVE, PROFESSIONAL FIREFIGHTERS ADVOCATES INC., SHERWIN H. SHAPIRO, SHAPIRO LAWYERS PROFESSIONAL CORPORATION, FRANCES FURMANOV and FRANCES FURMANOV PARALEGAL SERVICES
Defendants
ENDORSEMENT
Diamond J.
Released: June 11, 2018