Court File and Parties

Court File No.: CV-17-571237 Date: 2019-02-26 Superior Court of Justice - Ontario

Re: SUBWAY FRANCHISE SYSTEMS OF CANADA, INC., SUBWAY IP INC., and DOCTORS ASSOCIATES INC., Plaintiffs – and – CANADIAN BROADCASTING CORPORATION, CHARLSIE AGRO, KATHLEEN COUGHLIN, ERIC SZETO and TRENT UNIVERSITY, Defendants

Before: E.M. Morgan J.

Counsel: William McDowell, Paul-Erik Veel, Sana Halwani, for the Plaintiffs Christine Lonsdale and William Main, for the Defendants, Canadian Broadcasting Corporation, Carlsie Agro, Kathleen Coughlin, and Eric Szeto Joyce Tam, for the Defendant, Trent University

Heard: February 25, 2019

Case Conference Endorsement

[1] Counsel have been trying for some time to arrange discovery dates but for a variety of reasons have been unable to commence the examinations for discovery. The action is complex, and the parties have made voluminous documentary disclosure to each other.

[2] After a number of aborted attempts, the discoveries were scheduled to commence sometime next month. However, a few weeks ago the main Defendant, CBC, decided to change counsel. That has necessitated another adjournment of the examinations in order to allow new counsel to come up to speed.

[3] The CBC’s new counsel now seeks further disclosure from the Plaintiffs and has written to them to this effect. The Plaintiffs have responded in detail, indicating that, for the most part, the documents sought by the CBC are in the possession of Grand River Foods Ltd., an independent contractor hired by the Plaintiffs.

[4] The Plaintiffs take the position that while they would have no objection to the documents sought by CBC being produced by Grand River, they are not in a position to do so themselves or to compel Grand River to produce them. Counsel for the Plaintiffs has written to counsel for Grand River requesting the documents, but has had no response.

[5] CBC takes the position that Grand River is contractually obliged to cooperate with the Plaintiffs. CBC’s counsel argues that the failure to produce the documents to date is a result of the Plaintiffs’ failure to insist that Grand River produce them.

[6] Counsel for CBC is contemplating a motion to compel production of the documents it seeks. As a matter of scheduling, and without making any comment on the merits one way or the other, this will best be fashioned as a double motion. Of course, it is for the parties and their counsel to determine who they want to move against, but if there is to be a motion for further production from the Plaintiffs as well as a Third Party production motion against Grand River, they should be scheduled to be heard on the same day.

[7] I have suggested to counsel that I would be available to hear a production motion sometime during the three days from April 23-25, 2019. I have not booked a firm date for the motion in order to give counsel an opportunity to run these dates by counsel for Grand River. If Grand River is to be a participant in an upcoming motion, its counsel should at least be canvassed for his or her availability. That said, this case has had enough scheduling trouble that I would hope that one of the three days I proposes will be settled upon quickly by all parties and counsel. They are to advise my assistant as soon as they have confirmed the date among themselves.

[8] Counsel for CBC has also advised the Plaintiffs and me that CBC is contemplating a so-called anti-SLAPP motion pursuant to section 137.1 of the Courts of Justice Act. If that is to take place, it must be done without further delay.

[9] In 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 685, at para 76, the Court of Appeal advised that, “A s. 137.1 motion is intended to be brought at an early stage of the proceeding.” The Court reviewed a number of policy reasons why this type of motion is intended to be brought expeditiously at the outset of litigation and need not wait until discovery has taken place or even until a Statement of Defense is served.

[10] Although the Statement of Claim was issued nearly two years ago, the parties have not yet completed the documentary production stage of the action. It is therefore not too late to bring a motion like that contemplated by CBC. Given, however, that the Court of Appeal has fashioned this as a threshold type of motion, there is no time like the present for the CBC and its counsel to decide whether it will be proceeding with it. If they wait much longer, the s. 137.1 motion will be in danger of turning into something more akin to a summary judgment motion, which is precisely what the Court has said it should not be: Pointes Protection, at para 77.

[11] Counsel for CBC is to serve a finalized version of a Notice of Motion in respect of any anti-SLAPP motion they intend to bring by the end of April 2019. Before that time, I expect counsel for CBC to have canvassed motion dates with Plaintiffs’ counsel and to have booked a hearing date in coordination with my assistant. I expect the parties to work cooperatively and efficiently toward that date so that any pre-motion steps that need to be taken can be accomplished in a timely fashion.

[12] The re-scheduling of examinations for discoveries can wait to see how the two motions discussed here play out. The timing and potential results of each of those motions may impact on the timing and conduct of discoveries. While I do not intend to allow this action to languish, it is premature to fix discovery dates given the two motions that are on the horizon. The schedule for discoveries can be re-visited at the next attendance.

Morgan J. Date: February 26, 2019