Court File and Parties

COURT FILE NO.: CV-19-630254 DATE: 20200527 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: EASTERN FINANCIAL MORTGAGE CORPORATION, Plaintiff AND: GEORGE ATHANASOULIS, Defendant

BEFORE: Sanfilippo J.

COUNSEL: Carly Cohen and Jonathan Shepherd, for the Plaintiff John Polyzogopoulos and Megan Hodges, for the Defendant

HEARD: May 27, 2020

Case Conference Endorsement

[1] This action was initiated by Statement of Claim issued on October 31, 2019. The Plaintiff alleged that the Defendant provided a guarantee of a loan said to be owing to the Plaintiff by Athanageo LLC.

[2] The Defendant has not delivered a Statement of Defence, although represented by counsel throughout. Instead, on March 11, 2020, the Defendant delivered a Requisition to Attend Civil Practice Court to schedule a motion under section 106 of the Courts of Justice Act, to argue that this action ought to be stayed in favour of an allegedly more convenient proceeding said to already be underway in Florida. U.S.A. (forum non conveniens), and Rule 21.01(3)(c) of the Rules of Civil Procedure.

[3] The Defendant’s Requisition to Attend Civil Practice Court did not proceed because of the disruption to the Court’s regular operations caused by the COVID-19 Pandemic, as set out at that time by the Notice to Profession, the Public and the Media Regarding Civil and Family Proceedings, suspending regular court operations effective March 17, 2020. Upon the expansion of Court services provided by the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, dated May 13, 2020 and effective May 19, 2020, and in particular section C. 1.3, the parties requested the scheduling of a case conference under Rule 50.13. The case conference was scheduled in this action today and conducted before me.

[4] In advance of the case conference, the parties agreed, in general terms, on a timetable for the development of the moving party Defendant’s motion for hearing. This made clear that this motion is not ready for adjudication now and will not be ready for a hearing until late August 2020.

[5] The parties disagreed on two issues: first, the parties did not agree on how the hearing should be conducted, in writing or orally, and if orally, its length; second, the Defendant has not yet delivered a Statement of Defence, notwithstanding the Plaintiff’s insistence that he do so, contending that its delivery be held in abeyance pending the determination of this motion.

[6] Dealing first with the issue of the process for determination of this motion, the Defendant contended that the motion required an oral hearing, whereas the Plaintiff submitted that the motion could be determined in writing. Should an oral hearing be required, the Defendant submitted that the hearing would take 3 hours, whereas the Plaintiff contended that the oral hearing would take no more than 2 hours.

[7] The parties’ submissions made clear that this motion cannot currently be scheduled for hearing. Apart from the fact that it is not ready to be heard, the Court is currently scheduling emergency motions and short motions in writing. This motion does not fall into these categories. This motion shall be organized for hearing when ready, deferring to that time the issue of whether the hearing would be in writing or conducted orally.

[8] Regarding the issue of the delivery of a Statement of Defence, the Plaintiff is entitled to rely on the procedural requirement that the Defendant deliver his defence pleading, which has been outstanding since November 2019. The Defendant did not establish that there is a basis for this action to continue, and this motion to be developed, in the absence of a Statement of Defence. The Defendant contended that the delivery of a Statement of Defence should be held in abeyance while his client considers possible third party actions. This is not, in my view, sufficient basis to deprive the Plaintiff of the Defendant’s Statement of Defence, particularly in light of Rule 29.02, which contains a process for the Defendant to issue his third party action as a matter of right or to seek consent or leave to do so after expiry of the ten day period provided.

[9] Based on the issues addressed at the case conference, on the parties’ concurrence on the Timetable steps and the time required to complete them, and on the basis of Rules 50.13(1) and 50.13(6), I order as follows:

(a) The moving party Defendant shall deliver his Statement of Defence and Motion Record by June 19, 2020; (b) The responding party Plaintiff shall deliver its Responding Motion Record by July 13, 2020; (c) The Defendant shall deliver any Reply materials by July 20, 2020; (d) The parties may conduct cross-examinations on affidavit material filed, as they consider advisable, during the weeks of July 20 and July 27, 2020, as they may agree, but in any event by July 29, 2020. Any such cross-examinations may take place by videoconference; (e) The Defendant’s factum shall be delivered by August 20, 2020; (f) The Plaintiff’s factum shall be delivered by August 26, 2020; (g) Should the parties reach an agreement that this Motion may be heard in writing, they may make a joint request in this regard to Short Motion Triage Court after the time has expired for the conduct of cross-examinations. Should the parties agree that this motion must be heard orally, they shall await and follow further Court direction regarding the process for the adjudication of non-urgent, opposed long motions to be heard orally. The parties may otherwise request a further case conference, after the time has expired for conduct of cross-examinations.

[10] 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