Gould Leasing Ltd. v. Levy, et al. and related

Court File Nos.: CV-17-578563; CV-16-563463; CV-17-568528

Re: February 26, 2020 Motion: Adjourned for Continuation And Re: Request by the Plaintiff that the Motion be Brought Back on for a Hearing

Counsel: For the plaintiff: Mr. M. Reinhart For 1346150 Ontario Inc. and Sadie Moranis Real Estate Limited: Mr. S. Moranis For herself: Ms. B. Levy Counsel for the remaining defendants: Mr. A. Sternberg

Endorsement

[1] The plaintiff’s motion is a simple one. It is a motion to compel 1346150 Ontario Inc. ^1, Sadie Moranis Real Estate Limited [^2] and Ms. Bella Levy [^3] to comply with their obligations under, inter alia, RR. 30.02 and 30.03 of the Rules of Civil Procedure. While it is true that “an Order striking [these parties’ respective] statement[s] of defence” was sought in the notice of motion (in accordance with R. 30.08(2)), the plaintiff indicated--on the February 26/20 return date--that it would be satisfied with the alternative form of relief referenced: service of affidavits of documents.

[2] Notwithstanding the simplicity of the motion [^4], the motion was adjourned for continuation to permit 1346150 Ontario Inc., Sadie Moranis Real Estate Limited and Ms. Levy time to further consider their respective positions, determine what access they had or could have to documents and/or consult with counsel. They were to have been ready to complete the hearing of the motion on March 17/20 (and I heard nothing, before March 17th, to indicate that they were not). The motion was not heard then because all March 17/20 regular motions were adjourned sine die, as a result of the court’s suspension of certain operations--owing to COVID-19. As the parties have been advised, adjourned hearings are now being rescheduled; and the plaintiff has asked that the hearing of the February 26/20 motion be concluded.

[3] In this regard, Mr. Moranis has filed letters from two doctors by way of an email sent to the court. Dr. Singal, Mr. Moranis’ urologic surgeon, indicates that “in light of th[e] recent pandemic, [his] office feels that the health of [his] patient Stephen Moranis is vulnerble [sic] at this time, and he will not be able to participate in any court room proceeding, whether in person, telephone or video”. Dr. Singal asks, without any explanation, that any such proceedings be postponed until “January 2021”. The second doctor, Dr. Mintz, says that, because of Mr. Moranis’ health conditions, he ought not to be required to “attend meetings during this pandemic period”.

[4] Ms. Levy has not indicated any concerns with reprising the hearing of the motion, in any fashion or at any time. The motion as it relates to Ms. Levy will continue, in accordance with the terms set out in paragraph 8, below.

[5] No relief is being sought as against Mr. Moranis, personally. All that is being sought, for now, is service of Ms. Levy’s and the corporations’ affidavits of documents. I fully understand the concerns raised by Mr. Moranis and his doctors about an in-person attendance in court and none is now suggested. And while I do not understand what the impediment would be to a telephone or videoconference herein, I accept and respect Dr. Singal’s views as to his client’s limitations.

[6] That said, with Mr. Moranis having shown himself to be capable of addressing issues relevant to this litigation, in writing [^5], and with no concerns having been raised by either Dr. Singal or Dr. Mintz as to issues relevant to this litigation being addressed in writing, this very simple motion as it relates to the two corporations will be continued in writing. The only questions that Mr. Moranis needs to answer at this time are:

1. By when does he propose to have the two corporations serve their respective affidavits of documents (in these 2016 and 2017 actions)?
2. What is the reasoning behind whatever deadline he proposes for service?

[7] The answers to these questions are to be furnished to the court, by way of written submissions, by August 31/20, with the plaintiff’s reply submissions (if any) to be furnished by September 8/20. So as to simplify the process for Mr. Moranis (and the plaintiff), the submissions may be filed by way of email, sent to my assistant (Ms. Mahase), at jennifer.mahase@ontario.ca. The issue of costs of the motion, as it relates to the two corporations, will be addressed at a later date and not as part of this exchange of written submissions.

[8] If Ms. Levy wishes to supplement her February 26/20 submissions, she may do so. Unless I hear from Ms. Levy by August 6/20 (indicating that she does wish to make further submissions by telephone, videoconference or in writing)—this by way of an email sent to Messrs. Reinhart, Moranis and Sternberg and to me (c/o Ms. Mahase)—I will assume that Ms. Levy’s submissions on the motion are complete. If I do hear from Ms. Levy, I will fix a timetable for next steps. The issue of costs of the motion, as it relates to Ms. Levy, can also be addressed at this time. After the motion as it relates to Ms. Levy is decided, I will ask that costs outlines be filed by Ms. Levy and the plaintiff, to be supplemented by brief submissions (if anyone wishes to make submissions).

[9] I note, parenthetically, that Mr. Moranis had asked, on February 26/20, that he be permitted to act as agent for Ms. Levy on this motion. No evidence was proffered as to why that might be appropriate and, in all of the circumstances (including the fact that Mr. Moranis and Ms. Levy are potentially in a conflict of interest position, given the issues raised in the litigation), it is not appropriate.

July 30, 2020 “Original Signed by Master” Master Abrams

The Order endorsed above is effective without further formality.

Footnotes

[^2]: CV-17-568528 and CV-17-578563 [^3]: CV-17-578563 [^4]: Litigants in Ontario are required to serve affidavits of documents. If (as Ms. Levy and Mr. Moranis have suggested might be the case here) there are issues with respect to documents no longer being in their power, possession or control, they can list the documents in Schedule “C” of the corporations’/Ms. Levy’s respective affidavits of documents with statements as to “when and how [they] lost possession or control of or power over them and their present location” (R. 30.03(2)(c)). [^5]: At least two emails were sent by Mr. Moranis, to the court, dealing with this motion: one on July 23/20 and one on July 24/20.