Court File and Parties

Date: 20190109 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 Gavin Tighe and Alexander Melfi, for the Defendant Ted Slightham Daniel S. Murdoch, for the Defendant Tatiana Doubovsky

Heard: January 8, 2020

Endorsement

[1] The twelfth case management conference in this action was conducted today by teleconference, in accordance with paragraph 19(g) of my Endorsement of October 1, 2019, issued following the eleventh case management conference (“11th CM Endorsement”).

A. Progression to Trial Readiness

[2] The Defendants have completed the delivery of Amended Statements of Defence and the Plaintiffs has delivered their Reply, in accordance with paragraphs 19(a) and (b) of the 11th CM Endorsement. The further pleadings necessitated by the Fresh as Amended Statement of Claim are now completed.

[3] The Defendants completed their examination for discovery of the Plaintiffs on December 3, 2019, in accordance with paragraph 19(c)(i) of the 11th CM Endorsement. No party seeks to conduct any further examination for discovery at this time, and no party requested the scheduling of a motion to address any undertakings and refusals.

[4] The Plaintiffs delivered their expert report on the issue of damages, on or about January 1, 2020. The Defendants have confirmed that they will be in a position to deliver any responding expert report by March 20, 2020, as provided by paragraph 19(e)(ii) of the 11th CM Endorsement.

[5] The Plaintiffs raised an issue that arises from the Court’s dismissal of the Defendants’ motions under Rule 21.01(1)(b) of the Rules of Civil Procedure, O. Reg. 575/07, s. 6, to strike the Fresh as Amended Statement of Claim and under Rule 21.01(3)(b) to dismiss/and or stay this action: Zuppinger v. Slightham, 2019 ONSC 5117. In determination of the issue of costs arising from the dismissal of these Motions, on October 16, 2019 Nakatsuru J. awarded the Plaintiffs the sum of $44,000 inclusive of HST and disbursements, “payable by the Defendants to the Plaintiffs within 30 days”: Zuppinger v. Slightham, 2019 ONSC 5976 (the “October 2019 Cost Order”). The Defendant Ted Slightham has paid one-half of the cost award to the Plaintiffs. The Defendant Tatiana Doubovsky has not paid anything toward this cost award, notwithstanding that the October 2019 Cost Order required that this be complied with by November 16, 2019.

[6] The Plaintiffs seek compliance by Ms. Doubovsky with the October 2019 Cost Order. Ms. Doubovsky submitted that she does not have the financial resources to make any payment toward the October 2019 Cost Order and is thereby non-compliant by reason of economic necessity and not by choice.

[7] The Plaintiffs considered whether to advance a motion to pursue remedies against Ms. Doubovsky arising from her failure to comply with the October 2019 Cost Order, and do not request the scheduling of a Motion to do so at this time. The Plaintiffs seek to advance the scheduling of this action for trial, which requires delivery of a Trial Record, with the consequence that the Plaintiffs “shall not initiate or continue any motion … without leave of the Court”: Rule 48.04. They have thereby subordinated their pursuit of this Motion to the objective of adjudication of this action at the first opportunity. The Plaintiffs submitted that they reserve consideration of whether to seek leave to bring a Motion for relief should Ms. Doubovsky’s failure to comply with the October 2019 Cost Order continue.

[8] The Defendants did not raise any issue that precludes the scheduling of this action for trial and joined with the Plaintiffs in the objective of advancing a prompt and cost-efficient trial process.

B. Specific Case Management Directions

[9] I direct that the parties proceed in the development of this action for trial as follows:

(a) On their agreement, the Plaintiffs shall deliver their Trial Record by January 13, 2020. With their Trial Record, the Plaintiffs shall file the following:

(i) A “Timetable for Service of Expert Reports”, in accordance with section 67 of the Consolidated Practice Direction for Civil Actions, Applications Motions and Procedural Matters in the Toronto Region (“Consolidated Practice Direction”). Further to the discussions conducted at the 12th CM Conference, this Report shall specify that the Defendants’ expert reports shall be delivered by March 20, 2020 and any reply expert report shall be delivered by the Plaintiffs by April 17, 2020.

(ii) A “Certification Form to Set Pre-Trial and Trial Dates”, in accordance with section 61 of the Consolidated Practice Direction. Further to the discussions conducted at the 12th CM Conference, the parties are in agreement with the following details required for completion of this Certification Form:

a. Two hours are required for the Pre-Trial Conference;

b. The Plaintiffs intend to call three witnesses and one expert witness at trial, and the Defendants each intend to call one witness and one expert witness, at most, at trial;

c. The trial will involve between 50-100 documents;

d. The estimated length of the Plaintiffs’ case at trial is 3-5 days while the estimated length of the Defendants’ cases are 2-4 days, depending on the manner of trial to be conducted, for a total estimated length of trial of 5-9 days.

(b) The parties shall, by January 17, 2020, confer on whether they agree to adopt a summary trial format for the trial of this action, wherein the evidence-in-chief of each witness at trial will be adduced by affidavit, or whether they intend to conduct an ordinary trial by calling witnesses to provide oral testimony. By January 17, 2020, the parties shall:

(i) If the parties agree to adopt a summary trial format for this trial, they shall endeavour to agree upon a timetable that addresses the following: [1]

a. The scheduling of dates for delivery of the evidence-in-chief affidavits;

b. The scheduling of a date for delivery of a joint document book, cross-referenced (if possible, hyper-linked) to the evidence in the affidavits to avoid multiplicity of use of the same documents as exhibits to the affidavits;

c. Any agreement on time limits for the conduct of cross-examinations;

d. The scheduling of a date for the delivery of the party’s opening statement;

e. The number of days to which the parties commit for the conduct of the trial.

(ii) If the parties agree to adopt a summary trial format and agree on a timetable that addresses the details outlined above, they shall jointly deliver that to me, along with a joint request for the scheduling of a case management conference to set the pre-trial conference and trial dates;

(iii) If the parties agree to adopt a summary trial format but are not able to agree to the details or timetable for a the summary trial, they shall submit a joint memorandum to me through my judicial assistant, setting out their areas of agreement and disagreement, and their joint request to schedule a case management conference to address the timetable requirements and to set the pre-trial conference and trial dates.

(iv) If the parties do not agree to adopt a summary trial format, and seek to proceed with an ordinary trial, they shall confer on the number of days required for trial and deliver that detail to me through my judicial assistant, along with a joint request for the scheduling of a case management conference to set the pre-trial conference and trial dates.

(c) The next case management conference shall be conducted by teleconference upon receipt of a joint request from all counsel in accordance with paragraphs 9(b)(ii), (iii) or (iv), above, first canvassing the availability of all counsel to identify three dates on which all counsel are available at 9:15 am.

C. General Directions

[10] 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.

[11] 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: January 9, 2020

[1] As the pre-trial conference and trial dates have not yet been scheduled, the Parties’ timetable should reference deadlines by ‘number of days prior to the pre-trial conference’ and ‘number of days prior to trial’ as opposed to the use of calendar dates.