Superior Court of Justice - Ontario

Re: HASSAN SESAY, CALVIN SESAY and CHRISTIANA CEESAY, by their litigation guardian, JULLIET BANGURA, and JULLIET BANGURA, Plaintiffs

AND:

TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR - CHIEF OF TORONTO POLICE SERVICE, CHILDREN’S AID SOCIETY OF TORONTO, PAUL ARBUS, MICHELLE CAMPESE, DETECTIVE CONSTABLE BARETTO, TROY TRILLEY, NICKKI HOLLAND-GREEN, LORA HILB, LISA TOMLINSON, WATCH TOWER BIBLE AND TRACT SOCIETY OF CANADA, and TANNIS HUGGINS, Defendants

BEFORE: SANFILIPPO J.

COUNSEL: Hassan Sesay, self-represented Plaintiff Julliet Bangura, self-represented Plaintiff Olanyi Parsons, lawyer for Julliet Bangura in her capacity as litigation guardian for the minor plaintiff, Calvin Sesay Christiana Ceesay, self-represented Plaintiff, not in attendance Samantha Bonanno, lawyers for the Defendants Toronto Police Services Board, William Blair – Chief of Police Service, Paul Arbus, Michelle Campese and Detective Constable Baretto Carole Jenkins, lawyer for the Defendants Children’s Aid Society of Toronto, Troy Tilley, Nickki Holland-Green, Lora Hilb and Lisa Tomlinson David M. Gnam, lawyer for the Defendant Watch Tower Bible and Tract Society of Canada Sarah Mott-Trille, lawyer for the Defendant Tannis Huggins

HEARD: January 8, 2020

5th Case Management Endorsement

[1] The fifth Case Management Conference in this proceeding was conducted on January 8, 2020, in accordance with paragraph 24 of my fourth case management endorsement of September 25, 2019: Sesay v. Toronto Police Services Board, 2019 ONSC 5545.

A. Matters Addressed at the 5th CM Conference

(a) Examinations for Discovery

[2] The 4th CM Endorsement set out a schedule for the Plaintiffs to conduct their examination of the Defendant Troy Tilley on October 2, 2019 and of the Defendant Officer Paul Arbus on November 20, 2019: paras. 23(c) and 23(d). Both of these dates were reviewed with the Plaintiffs at the 4th CM Conference and were accepted by them as available to conduct their examinations.

[3] In the time leading to each of these examinations, Mr. Sesay communicated to the counsel for the party to be examined that he chose not to conduct the examination of the party on the day scheduled. Mr. Sesay explained at the 5th CM Conference that he did not attend to conduct the examination of Mr. Tilley because he did not consider that he was “in a proper frame of mind” to conduct examination on that day and that he did not attend to examine Officer Arbus for health reasons.

[4] I explained to Mr. Sesay that once examination for discovery dates are scheduled at a Case Conference, with the input and concurrence of all involved, they must proceed on the date scheduled, barring some unforeseen development. Any such unexpected development must then be established in evidence. Fairness must be balanced between the party seeking to conduct the examination and the party to be examined, particularly in a multi-party case, such as this, where many parties’ and counsels’ calendars are consulted and involved in examination scheduling. The days scheduled for the examinations of Officer Arbus and Mr. Tilley were thereby lost and, equally important, the development of this action for trial has been delayed by reason of the Plaintiffs’ request that these examinations be rescheduled.

[5] Counsel for the Defendant Officer Arbus has agreed to produce her client for examination on another date, subject to confirming his availability. All parties and counsel are available on March 6 or 13, 2020 for this examination. Counsel for Troy Tilley initially took the position that she would not agree to produce her client for examination given the breach by Mr. Sesay of failing to conduct his examination on the date previously scheduled but stated that she would review this position with her client with a view to determining whether he will agree to re-attend. All parties and counsel are available on February 21, 2020 for this examination.

[6] The Plaintiffs and Defendants by Crossclaim have an entitlement to examination for discovery of the Children’s Aid Society (“CAS”) Defendants Nickki Holland-Green, Lora Hilb and Lisa Tomlinson. All parties and counsel are available on March 27, 2020 for these examinations. Counsel for the CAS Defendants will determine her clients’ availability and notify all others whether these examinations can proceed that day.

(b) Mandatory Mediation Completed

[7] The parties attended at mediation on January 6, 2020, in accordance with paragraph 23(f) of the 4th CM Endorsement. All parties agree that the requirement to conduct mandatory mediation, as set out in Rule 24.1.09 of the Rules of Civil Procedure, O. Reg. 575/07, s. 6, has now been satisfied.

(c) Additional Adult Plaintiff

[8] Ms. Christiana Ceesay has attained the age of majority and no longer requires representation by a Litigation Guardian. She did not attend at the 5th CM Conference but communicated through Mr. Parsons that she intends to continue with her claims, as an adult plaintiff, on her own behalf. Mr. Parsons stated that he expects to be retained to act for Ms. Ceesay in her capacity as a plaintiff in this action.

[9] Mr. Parsons will attend to obtaining an order to continue this action by Ms. Ceesay as an adult and a resultant amendment to the title of proceedings. He stated that he is in a position to do so within the next thirty (30) days. Mr. Parsons may bring this Motion to the Case Management Master.

[10] Once Mr. Parsons completes the steps necessary to reconstitute the role of Ms. Ceesay as an adult plaintiff, she will comply with the Rules by attending at examination for discovery.

(d) Case Management Master

[11] In accordance with paragraph 23(a) of the 4th CM Endorsement, on October 1, 2019, Master McAfee appointed Master Josefo as Case Management Master. In the 4th CM Endorsement, I authorized three types of Motions that the parties may advance to the Case Management Master.

[12] The parties reported that none has advanced a Motion to the Case Management Master within the approval granted by the 4th CM Endorsement.

(e) Demand for Particulars

[13] Ms. Bangura submitted that she had delivered a Demand for Particulars to the CAS Defendants and that no response had been received. She asked for authority to bring a Motion to the Case Management Master to seek remedies arising from the alleged failure by the CAS Defendants to respond to this Demand for Particulars.

[14] The CAS Defendants deny that there is any outstanding Demand for Particulars. Ms. Bangura was not able to produce the alleged Demand for Particulars during the 5th CM Conference.

[15] Ms. Bangura will search for the alleged Demand for Particulars and, once identified, may re-serve it on the CAS Defendants. Ms. Bangura may bring forward to the next Case Management Conference any issue that she considers advisable regarding any non-compliance that she claims against the CAS Defendants in relation to her Demand for Particulars.

(f) Freedom of Information

[16] Mr. Sesay submitted that he filed a request for documents from the CSA Defendants further to a Freedom of Information notice but has not received a response. Counsel for the CSA Defendants denied that there is any outstanding Freedom of Information application that requires a response by the CAS. In any event, the CSA submitted that any documents sought to be produced by any such request would form part of the CSA’s documentary production in this action, which has already taken place through delivery of an Affidavit of Documents.

[17] Ms. Jenkins will review the CAS documentary production through its Affidavit of Documents and determine whether any documents were withheld from production that would otherwise be producible through a Freedom of Information request. She will notify Mr. Sesay and the other parties and counsel of the results of her review. If Mr. Sesay considers that there is an issue arising from this that he would like to address, he may bring this forward at the next Case Management Conference.

(g) Summary Judgment Motions

[18] Paragraphs 19-21 of the 4th CM Endorsement set out Ms. Bangura’s request for the scheduling of a partial Summary Judgment Motion against the defendant Watch Tower Bible and Tract Society of Canada. As Ms. Bangura was not at that time in a position to make submissions on the basis for this Motion or its advisability, I directed that Mr. Bangura could bring this request forward at a subsequent case management conference, if she considered it advisable to do so. Ms. Bangura did not raise this issue at the 5th CM Conference.

[19] Counsel for the Toronto Police Services Defendants submitted that he clients will bring forward at the next case management conference a request for the scheduling of a partial Summary Judgment Motion. They may do so and ought to be prepared to address how their proposed motion would be advisable in the context of the “litigation as a whole”, as emphasized by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 60 and 72: “the interest of justice inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole”. Also, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 33: the motions judge must “assess the advisability of the summary judgment process in the context of the litigation as a whole.”

B. Specific Case Management Directions

[20] Having considered the submissions made at the 5th CM Conference, I direct as follows:

(a) The examination of the Defendant Officer Arbus will be conducted on either March 6 or 13, 2020, being dates available to all parties and counsel. Counsel for Officer Arbus will canvas his availability for one of these dates and will communicate to all parties and counsel, by January 31, 2020, whether Officer Arbus will be examined on March 6 or 13, 2020.

(b) If Mr. Tilley agrees to be produced for examination without an Order requiring him to do so, he will be produced for examination for discovery on February 21, 2020, a date available to all parties and counsel. Ms. Jenkins will notify all parties and counsel of her client’s instructions on this issue by January 21, 2020. If Mr. Tilley refuses to attend at examination due to the failure by Mr. Sesay and Ms. Bangura to examine him on the date directed by my 4th CM Endorsement, Mr. Sesay and Ms. Bangura may advance a Motion to the Case Management Master to seek his re-attendance.

(c) All counsel and parties are available to conduct the examinations for discovery of the Defendants Nickki Holland-Green, Lora Hilb and Lisa Tomlinson on March 27, 2020. Ms. Jenkins will consult with them to determine their availability that day and will then communicate to all parties and counsel, by January 31, 2020, regarding whether the examination of all or some of these defendants can proceed on March 27, 2020.

(d) Mr. Parsons shall advance any Motion that he is directed to advance to continue this action on behalf of Ms. Christiana Ceesay and to amend the title of proceedings to reflect that she is now an adult plaintiff without any further necessity of representation by a litigation guardian. Mr. Parsons shall advance this Motion within thirty (30) days and may do so by Motion to the Case Management Master.

[21] The next Case Management shall be conducted, in person, on April 2, 2020 at 4:30 pm, a date canvassed and stated to be available to all counsel and parties. My judicial assistant will advise of the location of this sixth Case Management Conference as its date approaches.

[22] The parties may bring forward, to the next Case Management Conference those issues specifically stated herein to be brought forward then, and any issue that they have identified that affects the orderly progression of this action.

C. General Case Management Directions

[23] The parties may bring to the Case Management Master the three types of Motions that I directed in the 4th CM Endorsement and two Motions approved herein. No other Motions may be brought to the Case Management Master without my direction, and no Motion may be brought to a Judge without first being considered at a Case Management Conference.

[24] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Parties 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.

[25] Any party who seeks to address an important issue identified in this Consolidated Action between now and the next scheduled case conference of April 2, 2020 at 4:30 p.m., and who considers that an urgent case conference would assist in expeditious and efficient handling of any such issue, may request the scheduling of a further case conference by letter to my judicial assistant, with copy to all counsel and self-represented parties, using the following protocol:

i. The party requesting the further case shall canvas with all other parties their availability for an in-person Case Management Conference at 4:30 pm;

ii. The party shall provide my judicial assistant with a list of three such dates on which all parties are available at 4:30 pm for an in-person Case Management Conference;

iii. The requesting party shall provide my judicial assistant with a written submission, of no more than 3 pages in length, copied to all parties, setting out the status of this proceeding and detail of the issue that requires the urgent scheduling of a Case Management Conference.

[26] With the sole exception of communication for the purpose of scheduling an urgent Case Management Conference in accordance with the procedure set out in paragraph 25 hereof, no party shall communicate with my judicial assistant. All communications in this case management must take place at a Case Management Conference with the participation of all parties.

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

Sanfilippo J.

Released: January 9, 2020