Court File and Parties

Court File No.: CV-19-633450 Date: 2020-05-27 Superior Court of Justice – Ontario

Re: BEHOLD CONTROL EQUIPMENT INC., Plaintiff And: RACE MECHANICAL SYSTEMS INC. and AQUIRE FACILITIES MANAGEMENT SERVICES, Defendants

Before: Sanfilippo J.

Counsel: Derek Ricci and Maureen Littlejohn, for the Plaintiff Marvin J. Huberman, for the Defendants

Heard: May 21, 2020

1st Case Management Endorsement

[1] On April 7, 2020, Regional Senior Justice Stephen E. Firestone determined that the Application to Participate in the Civil Case Management Pilot delivered by the parties to this action satisfied the criteria set out in the Practice Advisory Concerning the Provincial Civil Case Management Pilot – One Judge Model, effective February 1, 2019. As such, this action was accepted into the Civil Case Management Pilot Project, and I was appointed the Case Management Judge.

[2] The case management of this action will be conducted in accordance with Rule 77 of the Rules of Civil Procedure and is designed to achieve the purposes concisely stated by Justice F.L. Myers in Schenk v. Valeant Pharmaceuticals International, Inc., 2017 ONSC 5101 at paras. 5 and 6 (Ont. S.C.J.):

“The purpose of this case management process is to resolve the lawsuit as efficiently, affordably and proportionately as the interests of justice allow. The proceeding will be managed to move forward efficiently but not urgently. There should always be at least one process step scheduled and being actively pursued. Parallel scheduling of multiple steps should be expected.

Parties and counsel are required to cooperate on procedural and scheduling matters so as to ensure there is a fair process for all. (See the Commentary under Rule 5-1.1 of the Rules of Professional Conduct “[t]he lawyer must discharge this duty … in a way that promotes the parties’ right to a fair hearing in which justice can be done”) and also Bosworth v. Coleman, 2014 ONSC 6135).”

[3] Effective case management requires that the action be moved forward expeditiously, in the circumstances of each case, mindful of the need for efficiency and proportionality, always with at least one process step scheduled and being actively implemented.

[4] The first Case Management Conference was conducted on May 21, 2020. In accordance with the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, dated May 13, 2020 and effective May 19, 2020, the Case Management Conference was conducted by videoconference.

[5] The parties provided a joint written submission setting out the status of this action, a background chronology of the factual circumstances that give rise to the action, identification of the issues raised by each party’s position and the parties’ views concerning the next steps necessary to move forward with this action. The parties had agreed upon a detailed Discovery Plan dated May 2020, that provided for the scope of documentary production, and its completion by July 31, 2020 and agreement to complete the examinations for discovery by September 30, 2020 (the “Discovery Plan”), in accordance with Rule 29.1.

[6] The parties presented a form of proposed Order, referred to as a “Confidentiality Order”, and jointly requested its issuance. The proposed Confidentiality Order set out a detailed protocol for the classification of certain categories of documentary productions as “Confidential” or “Highly Confidential” which would collectively be designated “Protected Information”. The proposed Confidentiality Order called for the sealing of any Protected Information submitted to or filed with the Court.

[7] I declined the parties’ joint request to issue the Confidentiality Order, without substantive determination, because it constituted a sealing order and therefore can only be issued on motion following the process set out in Part V, Section F, sections 105-113 of the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice (effective July 1, 2014). Although this Practice Direction refers to “publication bans”, it applies equally to any discretionary order limiting public access to the Court, including sealing orders.

[8] The parties must satisfy the test set out by the Supreme Court for restriction in access to the Court: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, 3 S.C.R. 442; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, 2 S.C.R. 522). The Supreme Court and the Ontario Court of Appeal have held that these principles apply equally to sealing orders, including those sought under section 137 of the Courts of Justice Act, R.S.O. 1990, c. 43: Sierra Club, at para. 53; M.E.H. v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, at para. 34.

[9] The parties may consider further the nature and extent of confidentiality that they require regarding the documentary productions in this action and whether they conclude that this necessitates a sealing order. If so, the parties may bring forward to the next case management conference any request that they may have for the scheduling of a motion for a sealing order. Additionally, the parties submitted that they may have other motions that they may be instructed to advance, such as a motion for security for costs. They may bring forward any such motion to the next case management conference.

A. Specific Case Management Directions

[10] Based on the matters addressed at the Case Management Conference, I provide the following directions:

(a) On the agreement of parties, this action shall be developed using the following Timetable: (i) Documentary production to be completed by July 31, 2020, in accordance with the Discovery Plan; (ii) Examinations for discovery to be completed by September 30, 2020, in accordance with the Discovery Plan; (iii) The parties shall provide answers to undertakings/advisements within 30 days of the date on which the undertaking/advisement was given; (iv) Any discovery-related motions may be brought forward for scheduling within sixty (60) days of the completion of the examinations for discovery.

(b) The parties may, at the next Case Management Conference, seek the scheduling of any motion that they consider necessary, including the two motions identified to date, being a motion for a sealing order and a motion for security for costs.

(c) The parties should be prepared to address at the next Case Management Conference the further steps that they consider will be necessary to prepare this action for trial, including the scheduling of a trial date. This will necessitate their consideration of a “Timetable for Service of Expert Reports Form”, in accordance with section 67 of the Consolidated Practice Direction for Civil Actions, Applications Motions and Procedural Matters in the Toronto Region (effective July 1, 2015, as amended).

(d) The next Case Management Conference will be conducted on July 23, 2020 at 9:15 am, a time convenient to the parties and made available by the Court. This date was selected as it is in advance of the deadline for completion of documentary production and thereby will provide an opportunity to address any issue that any party may have pertaining to this stage. The Case Management Conference shall take place by videoconference, using connection coordinates that will be provided in advance.

B. General Case Management Directions

[11] Parties and counsel are expected to cooperate on procedural and scheduling matters to ensure there is a fair and just process for all, consistent with Rule 1.04 and with the principles of proportionality, fairness and efficiency set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28: “The principal goal remains the same: a fair process that results in a just adjudication of disputes.”

[12] Delegation to junior counsel is invited, including the presentation of argument, appearances at case conferences or assisting in the questioning of witnesses with whom they have worked, without concern that it be viewed as over-staffing in the consideration of any cost award.

[13] No motion may be brought in this action before being considered at a case conference.

[14] Any party who seeks to address an issue identified in this action between now and the next scheduled case conference of July 23, 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 a further case conference using the following process: first, canvas with all counsel their availability for a case management conference at 9:15 am, and concurrence to its scheduling, assembling a list of three such dates; then, with copy to all counsel, forward an email to my judicial assistant providing the list of the three available dates, together with a memorandum of not more than 2 pages explaining the issues to be addressed.

[15] 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.

[16] 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: May 27, 2020