2019 ONSC 1057
Court File and Parties
Court File No.: CV-14-00505504 Motion Heard: 20190211 Superior Court of Justice - Ontario
Re: Parmalat Canada Inc., Plaintiff And: Russ and Carol Madarash Holdings Ltd., also known as Russell and Carol Madarash Holdings Ltd. also known as Russell and Carol Madarash Holdings Ltd and Russell Madarash, Defendants
Before: Master B. McAfee
Counsel: J. Russo, Counsel for the Moving Party, the Plaintiff A. Grossman, Counsel for the Responding Parties, the Defendants
Heard: February 11, 2019
Reasons for Decision
[1] This is a motion brought by the plaintiff for an order compelling the defendant Russell Madarash, in his personal capacity and as a representative of the other defendants, to attend a mandatory mediation session.
[2] The defendants submit that Mr. Madarash should not be required to attend in person. The defendants submit that Mr. Madarash should be permitted to attend via telephone or video conference. The defendants submit that Mr. Madarash, who resides in Regina, Saskatchewan, does not have the financial resources to enable him to attend in Toronto for a mandatory mediation session.
[3] Rule 24.1.11(1) of the Rules of Civil Procedure provides as follows:
The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise.
[4] Having regard to the principles summarized in Chase v. Great Lakes Altus Motor Yacht Sales, 2010 ONSC 6365 (Ont. Master) at paras. 15-18 (see also Hontaru v. Doe, 2018 ONSC 1014 (Ont. Master) at para.17), Mr. Madarash has not established that an exemption from personal attendance should be granted.
[5] In this action, the plaintiff claims against the defendants for amounts owing pursuant to a distribution agreement in the amount of $153,142.55. The defendants have counterclaimed against the plaintiff for damages in the amount of $150,000.00.
[6] There is no evidence before me from Mr. Madarash. The affidavit relied on by the defendants is from an associate at the law firm of the lawyer for the defendants. The affidavit appends various financial documents. According to the net worth statement of Mr. Madarash and his spouse Carol Madarash, they jointly own a home and a cottage and have a joint net worth of $254,000. The joint net worth statement also indicates that they have $12,000.00 in cash and no monies owing on their credit cards. In addition to the joint assets, Mr. Madarash has a net worth in his own right of other assets totalling $133,500. The evidence before me is that Mr. Madarash is employed as a truck driver.
[7] There is no evidence of the time, cost or expense of attending the mandatory mediation session in Toronto.
[8] The evidence before me does not satisfy me that Mr. Madarash lacks the ability to pay for travel costs.
[9] Mr. Madarash shall attend the mandatory mediation session in Toronto by way of personal attendance.
[10] Other relief sought in the notice of motion concerning the timing of the mediation and the identity of the mediator was not addressed in oral submissions. I make no order in this regard in the circumstances. I would urge the parties to agree to the timing of the mediation session and mediator.
[11] If successful, the plaintiff sought costs of the motion in the all-inclusive amount of $3,242.38. This was a 30 minute motion as confirmed by plaintiff’s counsel. The issues were not complex. No cross-examinations took place. No facta were filed. Only two cases were provided to the court during argument. The costs sought are too high in these circumstances. In my view the all-inclusive amount of $1,500.00, being the amount that the defendants sought if they were successful in opposing the motion, is a fair and reasonable amount that the defendants could expect to pay for costs.
[12] Order to go as follows:
- The defendant Mr. Madarash, in his personal capacity and as representative of the other defendants, shall attend a mandatory mediation session in Toronto by way of personal attendance.
- Costs of the motion are fixed in the all-inclusive amount of $1,500.00 payable by the defendants to the plaintiff within 30 days.