Superior Court of Justice - Ontario
COURT FILE NO.: CV-15-524612
DATE: 20200916
RE: CONCORD ADEX INC., CONCORD ADEX PROPERTIES LIMITED, C C ACQUISITION CORP., CONCORD ADEX INVESTMENTS LIMITED, CITYPLACE DEVELOPMENTS LIMITED, CITYPLACE DEVELOPMENTS CORP., CONCORD ADEX DEVELOPMENTS CORP. and CONCORD PANORAMA LIMITED, Plaintiffs
AND:
20/20 MANAGEMENT LIMITED, URBAN RENAISSANCE INC., TONI VARONE, ARASH BEHESHTI, ESPEDITO ARIGANELLO and FELICE METE, Defendants
AND RE: COURT FILE NO.: CV-15-526661
20/20 MANAGEMENT LIMITED, CONAMORE PROPERTY MANAGEMENT LIMITED, URBAN RENAISSANCE and TONI VARONE, Plaintiffs
AND:
CONCORD ADEX INC., CONCORD ADEX PROPERTIES LIMITED, CC ACQUISITION CORP., CONCORD ADEX INVESTMENTS LIMITED, CITYPLACE DEVELOPMENTS LIMITED, CITYPLACE DEVELOPMENTS CORP., CONCORD ADEX DEVELOPMENTS CORP., CONCORD PANORAMA LIMITED, CONCORD TANGO GP LIMITED, CONCORD TANGO 2 GP LIMITED, HENRY MAN, DENNIS AU YEUNG, GABRIEL LEUNG, ERIC FUNG and MICHAEL HOPKINS
BEFORE: SANFILIPPO J.
COUNSEL: Junior Sirivar and Jacob Klugsberg, for the Plaintiffs in court file no.: CV-15-524612; and for Defendants in court file no.: CV-15-526661
Emilio Bisceglia, for all the Defendants except Arash Beheshti in court file no.: CV-15-524612; and for the Plaintiffs in court file no.: CV-15-526661
Mark A. Veneziano and Aoife Quinn for the Defendant Arash Beheshti in court file no.: CV-15-524612
HEARD: September 15, 2020
CASE CONFERENCE ENDORSEMENT
[1] At the request of the Plaintiffs in court file number CV-15-526661 (the “526661 Action”), a case conference was convened in both the 526661 Action and the related action in court file number CV-15-524612 (the “524612 Action”). All parties acknowledged that these actions have common questions of fact or law and are related by the common transactions or occurrences from which they arise. The parties intend to consider whether these actions should be consolidated or tried together under Rule 6 of the Rules of Civil Procedure.
[2] To avoid confusion of the parties’ different roles in the two actions, I will refer to the Plaintiffs in the 526661 Action as the “Varone Parties”. Certain of them, along with the Defendant Arash Beheshti, are the Defendants in the 524612 Action. I will refer to the Plaintiffs in the 524612 Action as the “Concord Adex Parties” which, together with additional related parties, are the Defendants in the 526661Action.
[3] At the case conference, the Varone Parties raised two issues: (a) The alleged failure by the Concord Adex Parties to comply with the Order rendered by Master Muir on February 25, 2020; (b) the undetermined cost issue from Master Muir’s Order of February 25, 2020.
A. The Failure by the Concord Adex Parties to Comply with the Master’s Order
[4] On February 25, 2020, Master Muir heard two motions brought by the Varone Parties and the Concord Adex Parties for the implementation of “competing discovery plans”. By Reasons for Decision issued February 26, 2020, the Master found that the “discovery plan proposed by the [Varone Parties] is the preferable plan to be approved by the court in the circumstances of this action”: Concord Adex Inc. v. 20/20 Management Limited, 2020 ONSC 1237, at para. 9. (the “Reasons for Decision”). The Master ordered that the parties adhere to a timetable that arose from the Varone Parties’ discovery plan, the timing elements of which were then annexed to his Order.
[5] The Master stated that “this order shall apply to action no. CV-15-526661 (Toronto)”: Reasons for Decision, at para. 18. The parties took out the Master’s Order in the 526661 Action, even though his Reasons for Decision were issued in the 524612 Action (the “Order”). However, the Order applies to both the 526661 Action and the 524612 Action.
[6] The Order provided, in para. 1, that the parties shall adhere to the Timetable annexed as Schedule “A” to the Order. The first Timetable step was that the parties deliver Affidavits of Documents and Schedule “A” productions by April 30, 2020. This requirement could be varied by mutual consent: Order, para. 2. The parties did not agree to any variation.
[7] The Concord Adex Parties did not comply with this term of the Timetable. Indeed, not only did they not comply by the deadline date of April 30, 2020, they had still not complied by the date of the case conference, even though they knew since at least August 25, 2020 that the Varone Parties sought an Order to compel their compliance.
[8] The Concord Adex Parties submitted that they have been unable to complete their Affidavit of Documents, or revised Affidavit of Documents, by disruptions caused by the COVID-19 pandemic. However, they conceded that they had several weeks to comply with this term before the Province’s declaration of a state of emergency on March 17, 2020, and that they have had almost seven months to comply with this term since the Order was rendered. I note that all other parties have complied with this term.
[9] I order that the Concord Adex Parties serve, within ten (10) days from the date of this Order, their Affidavit of Documents or Revised Affidavit of Documents and Schedule “A” productions in accordance with the Discovery Plan ordered by Master Muir.
[10] The delay in service by the Concord Adex Parties of their documentary production necessitated changes to all the Timetable steps set out in the Order. After hearing submissions from all parties regarding their schedules and requirements, I order that the Timetable set out in Schedule “A” to the Order is varied as follows:
REMAINING STEP IN THE ACTION
PARTY
DATE STEP IS TO BE COMPLETED
Delivery of Affidavits of Documents (or Revised Affidavits of Documents if the party has previously served an Affidavit of Documents) and Schedule “A” productions in accordance with the Discovery Plan as ordered by the Court or agreed to by the parties
All parties
April 30, 2020
September 25, 2020
Examinations for Discovery
All parties
September 30, 2020 November 30, 2020
Delivery of answers to undertakings
All parties
November 30, 2020
January 31, 2021
Undertakings and Refusals Motions
All parties
To be heard no later than January 31, 2021
March 31, 2021
Service of Plaintiffs’ expert reports (if any)
Parties in their capacity as Plaintiffs
May 29, 2021
July 30, 2021
Service of Defendants’ expert reports (if any)
Parties in their capacity as Defendants
September 30, 2021
January 31, 2022
Completion of mandatory mediation
All parties
December 18, 2021
April 30, 2022
Date before which the action these actions will be set down for trial: FEBRUARY 1, 2022
JUNE 30, 2022
B. The Undetermined Cost Issue
[11] In paragraph 19 of the Reasons for Decision, the Master provided the parties with a process for the determination of the issue of costs of the motion through written submissions, should they not be able to agree on the issue of costs, as follows:
If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by March 27, 2020. These costs submissions may be sent directly to me by email.
[12] The parties delivered written submissions to the Master. Sadly, Master Muir passed away on July 9, 2020. At the time of his passing, he had not released his decision on the costs issue that he had under consideration.
[13] The parties’ recourse for an adjudication of the cost issue, in such circumstances, is to bring a motion to the Chief Justice for an order that the matter be reheard, as provided by sections 123(1.1) and 123(4)(a) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43.
[14] The parties have another option, and that is to settle the issues of entitlement and amount of costs. Rule 50.01 provides as follows:
The purpose of this Rule is to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain from the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding, including directions to ensure that any hearing proceeds in an orderly and efficient manner.
[15] Rule 50.13(5) provides as follows:
At the case conference, the judge or case management master may,
(a) Identify the issues and note those that are contested and those that are not;
(b) Explore methods to resolve the contested issues;
[16] In accordance with these Rules, the parties’ addressed at the case conference whether the outstanding cost issue can be resolved. The cost demands of those parties seeking costs are within the monetary jurisdiction of the Small Claims Court. The parties required an opportunity to consider their positions and to take instructions.
[17] As did the Master, I encourage the parties to continue with their efforts to resolve the cost issue. Should they be unable to reach a resolution, and should any one party consider that a further case conference would assist in advancing the possibility of resolution, that party may, within the next thirty days, request that a further case conference be convened by video in accordance with Rules 50.13(1) and 1.08, annexing this Endorsement as part of their Chambers Appointment Hearing Request Form. I am seized of any such further case conference.
[18] If all parties seek to bring a motion before the Chief Justice, they may deliver a “Toronto Civil List Request to Schedule Short, Opposed Motions and Applications to a Judge or Master”.
[19] Notwithstanding Rule 59.05, and in accordance with Rules 77.07(6) and 1.04, this order is effective from the date that it is made and is enforceable without any need for entry and filing, and without the necessity of a formal order.
Sanfilippo J.
Date: September 16, 2020