Court File and Parties

COURT FILE NO.: CV-20-634692 DATE: 20200619 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: MOHAMMAD FODAZI and ROUNAK FARROKHI KOUKIA, Plaintiffs

AND: BROOKFIELD RESIDENTIAL (ONTARIO) LIMITED, Defendant

AND:

COURT FILE NO.: CV - 19-621116 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: FARANAK TOLOETAKMILTORABI, Plaintiff

AND: BROOKFIELD RESIDENTIAL (ONTARIO) LIMITED, Defendant

BEFORE: Sanfilippo J.

COUNSEL: Sepideh Nassabi, for the Plaintiffs in both actions Neil G. Wilson, for the Defendant in both actions

HEARD: June 17, 2020

Endorsement

[1] The Plaintiffs in these two actions were purchasers of single residential houses, pre-construction, in a subdivision developed by the Defendant, Brookfield Residential (Ontario) Limited (“Brookfield”) in Aurora, Ontario. In each case, the Plaintiffs entered into agreements of purchase and sale to be completed within a schedule agreed upon. In each instance, the Plaintiffs did not close the purchase transaction on the prescribed date for closing and have sued for return of their deposits and damages.

[2] Brookfield has defended the actions, and has advanced counterclaims against each of the Plaintiffs, for forfeiture of their deposits and damages.

[3] The Defendant attended at Civil Practice Court, seeking to schedule a summary judgment motion. Glustein J. declined to do so and directed the parties to attend at a Chambers Appointment. The parties delivered a Chambers Appointment Hearing Request on June 4, 2020. I conducted a Chambers Appointment in these actions on June 17, 2020, as a case conference under Rule 50.13(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] The Defendant sought the scheduling of a summary judgment motion, to be heard together in both actions, and submitted that it could establish entitlement to dismissal of the main action, and entitlement to the relief sought in its counterclaim, in both actions, in a one-half day hearing. The Defendant contended that the adjudication of both the main actions and the counterclaims would be through interpretation of the agreements of purchase and sale, which are in identical form in both failed transactions.

[5] The Defendant submitted that if the one-half day summary judgment motion was not scheduled, the trial in both actions would take one day.

[6] The Plaintiffs submitted that I ought to decline to schedule this motion for summary judgment because, in these cases, the summary judgment process does not allow for the most expeditious, efficient and least expensive process for adjudication. I agree, for reasons that I will now explain.

[7] The consideration of the appropriateness of scheduling these actions for summary judgment is part of the Court’s gatekeeping role. Rule 50.13(6) provides a case conference judge with authority to make procedural orders and to give directions. In Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R. 87, at paras. 60 and 72, the Supreme Court explained the court’s power to provide directions under Rules 1.05 and 50.13 and emphasized that this includes consideration of the impact of any proposed motion: “the ‘interest of justice’ inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole.”

[8] The court’s ‘gatekeeping function’ requires that the court must assess and provide orders and directions in relation to proposed motions to ensure that the principles of proportionality, timeliness, and efficiency are satisfied: Griva v. Griva, 2016 ONSC 1820, at para. 18; Espresso Tax Credit Fund III Limited Partnership v. Arc Stainless Inc., 2018 ONSC 415, at para. 40; 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.” In Bank of Montreal v. Faibish, 2013 ONSC 5876, at para. 4, Brown J., as he then was, cited his decision in Abrams v. Abrams, 2010 ONSC 2703, 102 O.R. (3d) 645, leave to appeal refused, 2010 ONSC 4714 (Div. Ct.) for the proposition that a case management judge may decline to schedule an interlocutory motion “where alternate means are available to ensure the case proceeds to a fair trial in a timely manner.”

[9] Here, the moving party would, through the use of the summary judgment process, only be reducing the length of the hearing from one day to one-half day, but with it would be introducing a threshold issue of whether summary judgment is appropriate, thereby giving rise to the possibility that the motion might not be heard on its substantive merits. The development of the summary judgment motion would parallel the development of these actions for trial. In this context, a one-day trial would be a more efficient process to ensure that these actions are adjudicated cost-effectively, comprehensively and in a timely manner.

[10] Further, the summary judgment motion sought to be advanced by the Plaintiff could contravene the principles applicable to partial summary judgment. The Defendant seeks to determine whether the Plaintiffs breached the terms of the agreements of purchase and sale. In addition to alleging that the Defendant breached the agreements of purchase and sale, the Plaintiffs plead that the Defendant made material misrepresentations in their presentation materials, [1] exerted undue influence over the Plaintiffs to enter into the agreements of purchase and sale, [2] and acted in a manner that gives rise to a claim for exemplary and aggravated damages. [3] The determination of these issues could require factual determinations that overlap with those that the Plaintiff would seek to determine on the summary judgment motion.

[11] The Court of Appeal has emphasized that partial summary judgment is only available where it resolves a discrete standalone issue severable from the issue remaining for trial, where it was capable of being adjudicated on factual findings that did not intersect or overlap with the factual findings required to determine the issues left for trial, where the summary judgment motion can be dealt with expeditiously and cost-effectively and where the motion served the overarching objective of advancing the litigation as a whole. [4] I am not satisfied, on my analysis of the pleadings and on the submissions of counsel, that these elements are present here.

[12] I thereby decline to schedule the proposed summary judgment motion.

Order

[13] The parties agreed to a timetable to move these actions forward. On their consent, I order that they advance these actions as follows:

(a) The parties shall complete their documentary productions in both actions through delivery of affidavits of documents within thirty days of this Order, in compliance with Rule 30.03;

(b) The parties shall complete examinations for discovery in both actions within sixty days of this Order;

(c) The parties shall complete the mandatory mediation in both actions within ninety days of this Order, in compliance with Rule 24.1.04.

[14] I encourage the parties to consider and discuss the process that will allow for the most expeditious, efficient, and least expensive process for the determination of these two actions together, consistent with Rule 1.04(1) and with consideration of Rule 6.01.

[15] 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: June 19, 2020

Footnotes

[1] Faranak Toloetakmiltorabi v. Brookfield Residential (Ontario) Limited, (“Toloetakmiltorabi Action”), Statement of Claim, at paras. 1(c), 36-37; Mohammad Fodazi v. Brookfield Residential (Ontario) Limited, (“Fodazi Action”), Statement of Claim, at paras. 1(c) and 29.

[2] Toloetakmiltorabi Action, Statement of Claim, at para.12; Fodazi Action, Statement of Claim, at para. 11.

[3] Toloetakmiltorabi Action, Statement of Claim, at paras. 1(d) and 42; Fodazi Action, at paras. 1(d) and 39.

[4] Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 30-33; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at para. 4; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 33; Sirois v. Weston, 2017 ONCA 1002, at para. 13; Larizza v. Royal Bank, 2018 ONCA 632, at paras. 40-42; Mason v. Mongenais, 2018 ONCA 978, at paras. 42-44; Vandenberg v. Wilken, 2019 ONCA 262.