Court File and Parties

Court File No.: CV-14-120631-00 Date: 20190527 Ontario Superior Court of Justice

Between: M & M HOMES INC. Plaintiff – AND – 2088556 ONTARIO INC., JOHN REDVERS, ROYAL LEPAGE REAL ESTATE SERVICES LTD, 697350 ONTARIO LIMITED, 1375051 ONTARIO LIMITED, DOROTHY KUSHNER, SAM GOLDMAN, FRANK GOODMAN, LILLIAN GOODMAN, DINAPET HOLDINGS LIMITED, 614921 ONTARIO LIMITED, MARIA TRAINA, HOWARD BRIAN GOLDMAN, JOSEPH BURDI, DORIS MILLER, CAROLE GREENSPAN, COMMUNITY TRUST COMPANY, 2178875 ONTARIO INC., JONG SUK IM, SUNG RAN LEE, YEON HEE HUH and IN HEE WOO Defendants

Counsel: E. Birnboim and M. Crampton, Counsel for the Plaintiff R. Choi, Counsel for 2088556 Ontario Inc.

Heard: May 24, 2019

Reasons for Decision

Healey j. :

[1] On Thursday May 23, 2019, the only remaining defendant, 2088556 Ontario Inc. (“208”) brought an oral application for an adjournment of the trial. The application was dismissed: M & M Homes Inc. v. 2088556 Ontario Inc. et al., 2019 ONSC 3170 (Ont. S.C.J.).

[2] The trial has been scheduled since September 27, 2018, to proceed during the three-week trial settings held in the Central East Region in May, 2019. I ordered that it start on the following day.

[3] On that former appearance, Mr. Choi appeared as 208’s agent. The following day he advised the court that he had served a notice of change of lawyer on Mr. Birnboim that morning, and that it was in the process of being filed with the court.

[4] Just prior to the commencement of the plaintiff’s counsel’s opening statement, 208 brought another oral application for an adjournment of the trial. The basis of this adjournment request was that 208 has provided instructions to Mr. Choi to bring a motion before the Divisional Court to seek leave to appeal the May 23, 2019 order. Mr. Choi provided the court with a copy of the notice of motion.

[5] Although Mr. Choi advised the court that he was prepared to proceed with the trial, his submission was that the pending motion created uncertainty, and that a ruling in his client’s favour on the motion, coupled with a successful appeal, would ultimately result in all of the scheduled time spent on the trial over the next two days as a wasteful expenditure of the resources of all involved.

[6] Mr. Lam, the principal of 208, certainly has the right to attempt to appeal the order made by this court on May 23, 2019. However, that right does not drive the course of the litigation during the trial. The correct procedure is to complete the trial without regard to the uncertainties of what may or may not transpire in the future. To do otherwise would permit the schedule of the court and the litigation to be interrupted and constrained at the whim of parties who seek leave to appeal interlocutory orders. Scheduling chaos would ensue. This reasoning and approach has been articulated by the Ontario Court of Appeal with respect to mid-trial rulings in Laudon v. Roberts 2009 ONCA 383 (Ont. C.A.), at para. 25:

There can be no question that a trial judge has full authority, during the course of a trial, to revisit rulings made earlier in the proceedings and there may be any number of reasons for so doing. In view of that jurisdiction, it is my view that rulings made intra-trial do not become final for the purposes of appeal until judgment has been entered. Such an approach is a sensible one which would preclude litigants having to adjourn trial proceedings mid-stream, as it were, to appeal particular rulings. The time-honoured practice of reserving to the conclusion of trial the appeal of various rulings made during the proceedings is sound in that it preserves court time and costs. For examples of this practice see: Khan v. Pfuegel (1984), 44 C.P.C. 154 (Ont. H.C.); Button v. Jones (2004), 73 O.R. (3d) 364 (Ont. S.C.J.); and Predie v. Paul Sadlon Motors Inc. [2005 CarswellOnt 1167 (Ont. S.C.J.)].

[7] For the same reasons, I believe that it makes practical sense to apply the same procedure to an order made at trial just prior to counsel’s opening address. Accordingly, 208’s application to adjourn the trial was dismissed.

Justice S. E. Healey Released: May 27, 2019