DATE: 2019-10-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WALTER ZUPPINGER and MIN YAN, Plaintiffs

AND:

TED SLIGHTHAM and TATIANA DOUBOVSKY, Defendants

BEFORE: Sanfilippo J.

COUNSEL: Paul Morrison, Anu Koshal & Avi Bourassa, for the Plaintiffs, Walter Zuppinger and Min Yan

Aaron Postelnik, for the Defendant Ted Slightham

Daniel S. Murdoch, for the Defendant Tatiana Doubovsky

HEARD: October 1, 2019

ENDORSEMENT

[1] The eleventh case management conference in this action was conducted today by teleconference, for the purpose of organizing a timetable for the progression of this action to trial.

A. Background to the Eleventh Case Management Conference

[2] This action entered case management on September 5, 2017. The initial case management endorsement, issued September 6, 2017, documents that at that time there were 12 groups of defendants involved in defending the main action or implicated in a third party action, two fourth party actions and a fifth party action. Including the plaintiffs, there were 13 sets of legal counsel addressing the interests of 19 parties: Zuppinger v. TSCC No. 2139, 2017 ONSC 5305.

[3] Through the use of coordinated production, focused "snap shot" examinations for discovery and a global mediation process, the majority of issues in this action have been resolved and settlements have been reached by the Plaintiffs with all defendants except two. Specifically, at the eight case management conference on November 1, 2018, the Plaintiffs reported on a partial settlement agreement of the claims advanced against all defendants except Ted Slightham (limited to any liability apart from his role as a director of Toronto Standard Condominium Corporation ("TSCC") No. 2139) and Tatiana Doubovsky.

[4] At motion on December 4, 2018, I granted the Plaintiffs an Order, unopposed, to amend their Statement of Claim into a Fresh as Amended Statement of Claim so as to continue this action only against Mr. Slightham (solely in his capacity as real estate agent) and Ms. Doubovsky, only as to their several liability and joint share of liability as between them, and an Order, unopposed, dismissing this action against all other defendants and subsequent party defendants, including any crossclaims as between them.

[5] At the ninth case management conference completed on March 7, 2019, the remaining defendants, Mr. Slightham and Ms. Doubovsky, sought the scheduling of motions under Rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to seek the dismissal of this action on the basis that the Fresh as Amended Statement of Claim does not plead a reasonable cause of action (Rule 21.01(1)(b)) and because the Plaintiffs do not have legal capacity to bring the claim (Rule 21.01(3)(b)). The Plaintiffs submitted that these motions ought not to be scheduled, but rather the remaining elements of this now more limited action ought to be scheduled to allow for a trial as early as possible in 2019.

[6] On the basis of the reasons set out in my endorsement of April 1, 2019, I granted the Defendants their request to advance motions under Rule 21.01: Zuppinger v. Slightham, 2019 ONSC 2054. In granting the Defendants' request for the scheduling of their motions, I accepted their submission that they be provided with an opportunity to conclude their clients' involvement in this action without the expense of a trial, at para. 22:

In granting the Defendants their request to advance these motions, I am accepting their submission that the cost and time involved in doing so will prove more efficient than causing them to proceed to trial without the opportunity to argue their motions. In the event that the Rule 21.01 motions should result in the dismissal of the Plaintiffs' claims against the Defendants, the Defendants' submissions will be validated in that this action will be concluded, as will its case management.

[7] But I cautioned that if the Defendants' motions should prove unsuccessful, the resultant delay to the Plaintiffs would have to be taken into consideration in the further scheduling of this case through case management:

Should this not occur such that this action requires continued case management, I will give renewed consideration to the Plaintiffs' submission that the trial in this action should, at that point, be expedited: Abrams, at paras. 81-83.

[8] The Defendants' motions were heard by Nakatsuru J. on August 27, 2019, and dismissed: Zuppinger v. Slightham, 2019 ONSC 5117.

[9] This action has now returned for further case management scheduling. As the parties were not able to agree on a timetable, I heard submissions at this eleventh case management conference.

B. Issues Addressed at the Eleventh Case Management Conference

[10] The Plaintiffs' objective is to advance this action to trial at the first opportunity, to then be adjudicated using a summary trial process. The Plaintiffs thereby seek an expedited trial date and an order for a summary trial, tailored consistent with the process set out in Rule 76.12. The Plaintiffs do not require any further examination of Ms. Doubovsky or Mr. Slightham. The Plaintiffs intend to deliver one expert report on the issue of damages, in particular, valuation of the condominium unit in issue, and are prepared to do so by December 31, 2019.

[11] The Defendant Ms. Doubovsky sought 40 days for delivery of her amended statement of defence from the release by Nakatsuru J. of his decision on September 9, 2019, the scheduling of the examination for discovery of the Plaintiffs, an allotment of time for undertakings to be answered and a motion on undertakings and refusals to be scheduled and heard and, then, the delivery of a responding expert report. The Defendant Mr. Slightham largely adopted the submissions made on behalf of Ms. Doubovsky, emphasizing that the Defendants have not been in a position to commission or to deliver an expert report in the absence of completion of their examination of the Plaintiffs and without the Plaintiffs' delivery of their expert report. Absent these steps, the Defendants contend that they have not been provided with the specifics of the Plaintiffs' damage claim that they are required to meet.

[12] It is in the interests of all parties for the remaining elements of this action to be scheduled efficiently and advanced to trial at the first opportunity, subject to ensuring procedural fairness to all. As such, the submissions focused on the process available to complete the remaining steps in order that this trial can be advanced.

[13] The Plaintiffs are in a position to set their action down for trial, but will only be in a position to schedule a pre-trial conference date and a trial date once they complete the timing for the production and exchange of expert reports. Part IV of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region addresses the requirements to certify an action as ready to set pre-trial and trial dates. Part IV was amended effective June 15, 2018 to require the filing of a Timetable for Service of Expert Reports Form as a condition to scheduling a pre-trial conference and a trial date: section 67 of the Consolidated Practice Direction. This Form must be attached to the Trial Record.

[14] This requirement for the filing of a Timetable for Service of Expert Reports Form works together with Rule 50.11, to achieve the objective of having available at the pre-trial conference all of the expert reports that are intended by the parties to be used at trial, and Rule 53.03 which set out the timing requirements for the delivery of expert reports prior to the pre-trial conference.

[15] Accordingly, the discussion at the case management conference centred on the timing for the delivery of expert reports, as this was the issue that most affected the scheduling of this action for trial. The starting point was the Plaintiffs' delivery of their expert report on the issue of damages by December 31, 2019. The Defendants sought 90 days for a responding report, but several factors supported the Plaintiffs' contention that a shorter time period should be ordered, including: the delay in this action occasioned by the Defendants' Rule 21 motions; Rule 53.03(2) contemplates a defence responding report within 30 days; the Plaintiffs have identified the nature of their report, such that the Defendants can now begin their search for a property valuation expert.

[16] Last, the Plaintiffs submitted that I ought to order a summary trial in the manner detailed in Rule 76.12. The Defendants objected to the use of the summary trial process in this case, at this time, but indicated that they would continue to consider its use as they complete their examination of the Plaintiffs and their review the Plaintiffs' expert report.

[17] The summary trial process set out by Rule 76.12 was specifically designed for Simplified Procedure cases but can efficiently be adapted to an ordinary case, on consent. In the absence of consent, the Plaintiffs argue that a case management judge has the authority under Rule 77.04(1)(e) to impose a summary trial process, in that the Judge may "make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule". Rule 77.04(3) provides that the powers contained in Rule 77.04(1) "are in addition to any other powers set out in this Rule".

[18] I am not persuaded, at this time, that the Plaintiffs have established a basis on which to order that the trial of the remaining elements of this action against Ms. Doubovsky and Mr. Slightham be adjudicated as a summary trial or even as a modified version of a summary trial. However, the Plaintiffs may bring this issue forward at the next case management conference if the developments by then support further consideration of the use of a summary trial process to achieve efficiencies in adjudication. Additionally, I encourage the Defendants to continue their consideration of a summary trial process, even in modified form, as a means to conduct the trial in this action with greater efficiency, fewer trial days and thereby reduced costs and cost exposure to all parties.

C. Specific Case Management Directions

[19] I direct that the parties proceed in accordance with the following timetable:

(a) Delivery of Amended Statements of Defence: The Defendants shall deliver any Amended Statements of Defence by October 11, 2019.

(b) Reply: The Plaintiffs shall delivery any Reply by October 18, 2019.

(c) Examinations for Discovery: The remaining examinations for discovery in this action shall be conducted as follows:

(i) The Defendants shall conduct their examination for discovery of the Plaintiffs on December 3, 2019, provided that counsel for the Mr. Slightham is not required to attend in Court that day on a pending trial commitment. If so, the Defendants shall conduct their examination of the Plaintiffs on January 7, 2020;

(ii) The Defendants agreed to collaborate in the coordination of the examination by Ms. Doubovsky of Mr. Slightham, which shall be conducted by December 31, 2019. Mr. Slightham did not request an examination of Ms. Doubovsky.

(d) Motions on Undertakings and Refusals: Any request by the Defendants for a motion to address undertakings and refusals may be brought forward to the next case management conference, if necessary. No time will currently be allocated for these steps. The parties are encouraged to consider the use of Rule 34.12 on the pending examination of the Plaintiffs, reserving the ruling on any objections to the trial judge.

(e) Expert Report Timetable: The expert reports shall be delivered according to the following timetable:

(i) The Plaintiff expert report on the issue of damages shall be delivered by December 31, 2019;

(ii) The Defendants shall deliver any expert report on any issue, or any responding report to the Plaintiffs' expert report on the issue of damages by March 20, 2020. In the event that the Defendants' examination of the Plaintiffs is held down from December 3, 2019 to January 7, 2020, in accordance with paragraph 19(c)(i) of this Endorsement, the Defendants may make submission, at the next case management conference, for an extension of this deadline.

(f) Set Action Down for Trial: While the Plaintiffs are in a position to set this action down for trial, this case is not yet ready for the scheduling of a pre-trial conference date or a trial date. This shall be brought forward to the next case management conference, when the parties will be ready to complete the Trial Certification Form and the Timetable for Service of Expert Reports Form.

(g) Next Case Management Conference will be conducted by teleconference on January 8, 2020 at 9:15 am. My judicial assistant will distribute call-in co-ordinates as that date approaches. I direct the parties to deliver, either jointly or failing agreement individually, by 12:00 noon on January 7, 2020, a brief memoranda of no more than 2 pages in length setting out the status of the case and next steps.

D. General Directions

[20] The parties may agree on changes to the deadlines in the timetable to accommodate the schedules of counsel or their clients, provided that any such changes are agreed upon in writing, do not disrupt the sequence of steps in the timetable and are to dates reasonably proximate to those that they modify.

[21] Any party who seeks to address an issue in this action between now and the next scheduled case conference of January 8, 2020 at 9:15 am and who considers that a case conference would assist in expeditious and efficient handling of any such issue, may request the scheduling of an urgent case conference by email to my assistant using the following protocol: (i) the requesting counsel must first canvass with all counsel dates on which they are available for a case management conference at either 9:00 am or 4:30 pm, until compiling a list of three dates on which all counsel are available; (ii) with copy to all counsel, the requesting counsel may then send a request by email to my judicial assistant, listing the three proposed dates and providing a one-page summary of the issue(s) to be addressed at the case management conference.

[22] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.

[23] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6).

Sanfilippo J.

Date of Release: October 1, 2019