Cheng v. Grigoras, 2020 ONSC 4351

Court File No.: CV-19-629381 Date: 2020-07-15

Superior Court of Justice – Ontario

Re: LISHENG CHENG, Plaintiff And: PETER GRIGORAS, Defendant

Before: Sanfilippo J.

Counsel: Paul Starkman, for the Plaintiff Jeffrey Kaufman, for the Defendant.

Heard: July 14, 2020

Endorsement

A. Background

[1] On July 7, 2020, the Plaintiff, Lisheng Cheng, filed a “Request to Schedule Short, Opposed Motion” (“Request Form”), in accordance with the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, Regarding the Expanded Operations of the Ontario Superior Court of Justice, dated May 13, 2020 and effective May 19, 2020, and the Toronto Region’s “Toronto Expansion Protocol for Court Hearings During the COVID-19, issued pursuant to this Consolidated Notice.

[2] The Plaintiff seeks to proceed with the argument of a summary judgment motion that had been addressed at Civil Practice Court on January 23, 2020 and scheduled for hearing on July 22, 2020 (the “Summary Judgment Motion”). At that time, RSJ Firestone ordered that the parties develop the Summary Judgment Motion for hearing according to a timetable that required the Plaintiff to deliver his Motion Record by February 28, 2020, the Defendant to deliver his Responding Record by March 31, 2020, and cross-examinations to be completed by May 15, 2020, after which factums would be exchanged (the “CPC Order”).

[3] The Plaintiff submitted that he delivered his Motion Record by February 28, 2020, and since received nothing from the Defendant. Accordingly, he asked that the Summary Judgment Motion proceed to hearing in writing on July 22, 2020, unopposed.

[4] On July 7, 2020, I issued a Triage Endorsement directing that a case conference be convened, under Rule 50.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with the participation of counsel for all parties, to discuss arrangements for the hearing of the Summary Judgment Motion.

[5] On July 8, 2020, the Defendant, Peter Grigoras, filed a Request Form seeking variation of the CPC Order to allow for expanded time for the timetable steps set out in the CPC Order, to allow his client to deliver a Responding Record.

B. The Case Conference

[6] A case conference in this action was conducted on July 14, 2020, with the participation of all counsel, in accordance with Rule 50.13(2). The case conference proceeded by videoconference, in accordance with Rules 50.13(2)(b) and 1.08.

[7] The Plaintiff submitted that he delivered his Motion Record on February 27, 2020, supported by the Affidavit of Service of a member of his counsel’s law firm and a courier receipt that purported to document the delivery. The Defendant’s counsel submitted that he did not receive the Motion Record in hard copy on February 27, 2020, or at all. He submitted that he was working remotely at that time and stated that he was not in a position to receive the Motion Record as contended by the Plaintiff.

[8] The disconnect between the parties regarding the delivery of the Motion Record was first discovered on April 1, 2020. On that day, the Plaintiff’s lawyer wrote to the Defendant’s lawyer to inquire regarding the timing for delivery of the Responding Record which was then in default of the March 31, 2020 deadline set out in the CPC Order. The lawyer for the Defendant denied receipt of the Motion Record. On April 1, 2020, the Plaintiff’s lawyer deposited a copy of the Motion Record in a drop box and provided the weblink to the Defendant’s lawyer.

[9] The Defendant’s lawyer concluded that the Summary Judgment Motion had been adjourned and would not be heard on its scheduled return date of July 22, 2020. He formed this view based on the Notice to Profession, the Public and the Media Regarding Civil and Family Proceedings, suspending regular court operations effective March 17, 2020 (the “March 2020 Notice”). On this understanding, and on the submission that his office’s resources were committed to addressing other matters that became urgent during the Province’s state of emergency, and because of reduced office operations resulting from the pandemic, the Defendant did not take the steps set out in the CPC Order.

[10] The Plaintiff submitted that he should be allowed to proceed with his Summary Judgment Motion on July 22, 2020, unopposed, on the basis that the Defendant was breach of the CPC Order and has not provided an acceptable basis on which he ought to be relieved of the consequences of his breach. Alternatively, the Plaintiff submitted that if the Defendant were allowed an opportunity to respond, the Defendant should pay costs thrown away resulting from the delay in the hearing of this motion. Last, the Plaintiff asked the Court to take into consideration the Defendant’s non-compliance with the Order of Master Abrams of February 3, 2020, by which the Defendant was ordered to pay the Plaintiff $2,500 in costs, forthwith (the “February 2020 Master’s Order”).

[11] The Defendant asked that his client now to be provided with an opportunity for response without any obligation to pay costs thrown away. The Defendant undertook to pay immediately the cost award outstanding under the February 2020 Master’s Order.

[12] The miscommunication between the parties regarding the delivery of the Motion Record cannot be reconciled at case conference but constitutes an unfortunate mis-step that jeopardized the orderly development of this motion. However, this issue was discovered by April 1, 2020, and there was no reason for the parties to suspend their development of this motion. The March 2020 Notice caused the hearing of the Summary Judgment Motion to be adjourned, but the parties otherwise had in place a timetable for its development for argument when the Court’s return to regular operations might permit. In such circumstances, the parties ought to have collaborated in the continued preparation of the Summary Judgment Motion.

[13] In balancing fairness to the Moving Party Plaintiff, who has an entitlement for his Summary Judgment Motion to be heard in accordance with the CPC Order, and fairness to the Responding Party Defendant, who seeks an opportunity to be heard in response to the relief sought in the Summary Judgment Motion, I will implement a revised Timetable for the development of this motion.

[14] In doing so, I am in no way condoning the Defendant’s breach of the CPC Order, which I have been assured was unintended. Rather, in varying the Timetable to allow the Defendant an opportunity for response, I am giving precedence to the objective that each action be adjudicated on its merits, on an efficient, effective and expeditious basis, to allow for a just and fair result.

[15] I decline to award the Plaintiff any costs of the adjournment, thrown away, because the Defendant has explained that he had unexpected complications in responding to this motion by reason of the pandemic. Having canvassed the schedule for the further steps in this motion and having ensured that they are convenient to the parties, no one expects any further issues in the preparation of this motion for adjudication.

[16] In addition to sending all documents to the Court by email, the Plaintiff shall provide an online document storage location at www.sync.com and advise the Motions Coordinator and the Defendant of its location. I adopt the statement by F.L. Myers J. in Mann v. Chac-Wai, 2020 ONSC 3428, at paras. 7-10, of the purpose for the use of two distinct filing processes during this time: specifically, electronic filing with the Court; and filing in the on-line sync.com folder for use by the Motions Judge. Also, this should alleviate any further issue in the parties’ transmission of documents.

C. Timetable

[17] I order that the CPC Order be varied and, with the concurrence of the parties on timing, I direct that the parties advance this motion for hearing in accordance with the following Timetable:

(a) The Defendant shall deliver his Responding Record by July 28, 2020. (b) The Plaintiff shall deliver any Reply Record by August 4, 2020. (c) In addition to sending all documents to the Court by email, counsel for the Plaintiff shall provide an online storage location at www.sync.com and all motion materials shall be uploaded to the sync.com site (the “Document Folder”). The counsel for the Plaintiff shall provide the Motions Coordinator and the counsel for the Defendant with the internet location of the Document Folder. The parties’ Motion Confirmation Form shall contain the internet location of the Document Folder for use by the Motions Judge. (d) The parties shall, by August 31, 2020, complete any cross-examinations on affidavit evidence filed. The cross-examinations may be conducted remotely at any party’s request, by videoconference, with the use of a local interpreter in the cross-examination of any affiant requiring translation. (e) The parties shall expedite the production of any cross-examination transcripts. (f) The Plaintiff shall deliver his Moving Party Factum by September 21, 2020. (g) The Defendant shall deliver his Responding Party Factum by October 6, 2020. (h) The Plaintiff may deliver any Reply Factum by October 13, 2020. (i) The parties may speak to the scheduling of the hearing of this motion as soon as the Civil Practice Court is open for the scheduling of long, oral motions. (j) The Defendant shall, by July 22, 2020, pay the cost award provided by the February 2020 Master’s Order.

[18] Notwithstanding Rule 59.05, this Order is effective from the date that it is made and is enforceable without the need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal order need be entered and filed unless an appeal or a motion for leave to appeal is brought. Any party may nonetheless submit a formal order for original signing, entry and filing when the court returns to regular operations should the party wish to do so.

Sanfilippo J. Date: July 15, 2020