Court File and Parties

COURT FILE NO.: CV-17-570972-00CP DATE: 20190920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adil Virji, Christine McEwan and Suzanne Long, Plaintiffs

– AND –

Lance Kotton, Peter Santos, Titan Equity Group Ltd., Executive Leasing Capital Corp., Shan-Kael Group Inc., Roy Deeks, Unity Financial Mortgage Services Inc., Bosley Farr Associates Ltd., Robert Marcutti, Mitchell Finkelstein, Adam Seif, Antonio Franco De Bartolo, Litowitz Pettle & Silver LLP, Howard Litowitz, Friedman Law Professional Corporation (formally known as Friedman & Associates), Yanfrang Guo, William Friedman, Sloane Capital Corp., Stephen Freedman, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: R. Winsor and J. Wuthmann, for the Plaintiffs M. Stieber, for the Defendants, Bosley Farr Associates Ltd. and Robert Marcutti M. Wine, for the Defendant, Peter Santos S. Freedman, on his own behalf and on behalf of Sloane Capital Corp.

HEARD: September 20, 2019

INITIAL CASE CONFERENCE

[1] The first case conference in this matter was held today. Counsel for the Plaintiffs indicated that they and the Defendants and their counsel that are present have worked out a schedule leading up to a certification motion.

[2] Plaintiffs’ counsel also indicated that there are some named Defendants against whom the Plaintiffs will eventually be moving to discontinue, and that those Defendants have not been served with the Statement of Claim. Plaintiffs’ counsel assured me, however, that all Defendants against whom this matter will ultimately proceed have been served and/or have been notified of today’s case conference. On that basis, I am prepared to set a schedule today. I expect Plaintiffs’ counsel to provide a copy of this endorsement to any and all parties who may not be present in court today but who need to know the schedule leading to certification and other matters discussed here.

[3] I gather that the Plaintiffs’ Motion Record has already been served on all relevant parties. If there are still parties on whom it needs to be served, that must be done as soon as possible. The balance of the schedule leading to certification is as follows:

• Responding materials served by October 25, 2019

• Cross-examinations completed by December 20, 2019

• Plaintiffs’ factum served by January 24, 2020

• Defendants’ factums served by February 7, 2020

• Certification motion set for a full day on April 20, 2020

[4] Mr. Stieber indicated that he has already served some of the Defendants who are not present with cross-claims on behalf of his client, which makes for an awkward situation if the Plaintiffs intend to discontinue their claim against those Defendants. He advised me that he has cross-claimed at this time in order to preserve the limitation period on those claims, and is concerned that once the Plaintiffs discontinue as against those same Defendants he will have to discontinue the cross-claims and re-constitute them as Third Party Claims, and at that point he may be confronted with a limitation problem.

[5] In my view, any Defendant who has been served with the Statement of Claim and who plans a cross-claim against an existing named Defendant would be advised to follow Mr. Stieber’s lead and serve that cross-claim rather than wait to see if the Plaintiffs will actually proceed or discontinue against their potential Defendant by Cross-claim. Once a cross-claim has been served the limitation period on that claim will be considered to be tolled; when and if the Plaintiffs move for approval of a discontinuance against the particular Defendant by Cross-claim, the cross-claiming party can then decide whether it wants to re-issue the cross-claim as a Third Party Claim. Any limitation issue will be considered from the date of the initial cross-claim rather than from the date of the Third Party Claim.

Morgan J.

Date: September 20, 2019