SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HASSAN SESAY, CALVIN SESAY and CHRISTIANA CEESAY, by their litigation guardian, JULLIET BANGURA, and JULLIET BANGURA, Plaintiffs

AND:

TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR - CHIEF OF TORONTO POLICE SERVICE, CHILDREN’S AID SOCIETY OF TORONTO, PAUL ARBUS, MICHELLE CAMPESE, DETECTIVE CONSTABLE BARETTO, TROY TRILLEY, NICKKI HOLLAND-GREEN, LORA HILB, LISA TOMLINSON, WATCH TOWER BIBLE AND TRACT SOCIETY OF CANADA, and TANNIS HUGGINS, Defendants

BEFORE: SANFILIPPO J.

COUNSEL: Hassan Sesay, self-represented Plaintiff Julliet Bangura, self-represented Plaintiff Olanyi Parsons, lawyer for Julliet Bangura in her capacity as litigation guardian for the minor plaintiff, Calvin Sesay, and lawyer for Christiana Ceesay Rebecca Bush and Samantha Bonanno¸ lawyers for the Defendants Toronto Police Services Board, William Blair – Chief of Police Service, Paul Arbus, Michelle Campese and Detective Constable Baretto Carole Jenkins, lawyer for the Defendants Children’s Aid Society of Toronto, Troy Tilley, Nickki Holland-Green, Lora Hilb and Lisa Tomlinson David M. Gnam, lawyer for the Defendant Watch Tower Bible and Tract Society of Canada Sarah Mott-Trille, lawyer for the Defendant Tannis Huggins

HEARD (By Videoconference): October 28, 2020

6^th^ case management ENDORSEMENT

[1] The sixth Case Management Conference (“6^th^ CM Conference”) in this proceeding took place on October 28, 2020 and focused on the status of this action and the steps considered by the parties to be necessary to advance this action to adjudication.

[2] The written materials filed by the Defendants in advance of the 6^th^ CM Conference stated that the examination of PC Paul Arbus was conducted virtually on August 5, 2020 and the examinations for discovery of the Child Aid Society defendants were conducted virtually on August 6, 2020. These steps were further to the directions set out in paragraphs 20(a), (b) and (c) of the 5^th^ Case Management Endorsement (“5^th^ CM Endorsement”) issued January 9, 2020: Sesay v. Toronto Police Services Board, 2020 ONSC 175.

[3] The parties’ written materials identified a number of motions that the parties seek to advance, which were then canvassed at the Case Management Conference and may be summarized as follows:

(a) Mr. Parsons brought a motion for an Order to continue the claims advanced in this action on behalf of Christiana Ceesay in her own capacity, as opposed to through a Litigation Guardian, as she has now attained the age of majority and to amend the title of proceedings accordingly, as provided for by paras. 8-10 and 20(d) of the 5^th^ CM Endorsement (the “Motion to Continue”).

(b) The Plaintiffs Hasan Sesay and Julliet Bangura brought forward their request to advance a motion for summary judgment against all Defendants, as addressed at the 5^th^ CM Conference: paras. 18-19, 5^th^ CM Endorsement. The other Plaintiffs do not join into this request. I will refer to this as the “Sesay/Bangura Motion for Summary Judgment”.

(c) All Defendants except the Defendant Tannis Huggins, specifically Toronto Police Services Board, William Blair, Paul Arbus, Michelle Campese and DC Baretto (collectively the “TPS Defendants”) and the Children’s Aid Society of Toronto, Troy Tilley, Nickki Holland-Green, Lora Hilb and Lisa Tomlinson (collectively the “CAS Defendants”) and Watch Tower Bible and Tract Society of Canada (“WT”) seek to advance a motion for summary judgment dismissing all of the Plaintiffs’ claims. I will refer to this as the “TPS/CAS/WT Motion for Summary Judgment”.

(d) All parties seek to advance a motion before the assigned Case Management Master, Master Josefo, for answers to undertakings and questions refused on examinations for discovery conducted to date. I will refer to these motions as the “Plaintiffs’ Motion for Undertakings” and the “Defendants’ Motion for Undertakings”.

(e) The Plaintiffs Hasan Sesay and Julliet Bangura seek to advance the following motions before the Case Management Master:

(i) A motion to seek further rights of examination said to arise from examinations conducted to date, including the claim for further examination of the defendant, DC Campese (“Motion for Further Examination”);

(ii) A motion to compel the examination of the defendant, former Chief of Police William Blair (“Motion for Examination of Defendant”);

(iii) A motion for an Order for the inspection of documents and/or property (“Motion for Inspection”);

(iv) A motion for response to a Demand for Particulars (“Motion for Particulars”).

[4] This is an extensive list of motion practice requested by the parties: six proposed motions by the Plaintiffs, or certain of them; two proposed motions by the Defendants, or certain of them.

[5] In accordance with the objectives of Rule 50.01 of the Rules of Civil Procedure, extensive discussions have taken place at various case management conferences to address whether any of these motions can be narrowed in scope or resolved, and I am satisfied that they cannot. The parties have raised issues about undertakings and refusals, and examination practice, at each of the case conferences conducted in this action. These issues must now be determined. So too the other issues raised by the Plaintiffs regarding entitlements to oral and written examination, documentary production and inspection of pertinent documents and property.

[6] I observe that the parties were first authorized to bring the motions listed above in sub-paragraphs 3(d), 3(e)(i) and 3(e)(ii) at the fourth case management conference conducted on September 24, 2019: Sesay v. Toronto Police Services Board, 2019 ONSC 5545, at paras. 23(a) and 23(b) (the “4^th^ CM Endorsement). This authority was reiterated in the 5^th^ CM Endorsement at para. 23. To date, the Defendants sought the scheduling of the Defendants’ Motion for Undertakings (tentatively for January 7, 2021), but the Plaintiffs have not until now taken steps to advance the scheduling of any of the Master’s Motions first authorized on September 24, 2019.

[7] I continue to doubt that the Sesay/Bangura Motion for Summary Judgment and the TPS/CAS/WT Motion for Summary Judgment are advisable in the context of the “litigation as a whole”, as emphasized by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 60 and 72: “the interest of justice inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole”, including for the reasons that I explained in earlier Case Management Endorsements: 5^th^ CM Endorsement, at paras. 18-19; 4^th^ CM Endorsement, paras. 19-21. I also have considerable doubt that the summary judgment motions serve to advance the principles of effective case management, designed to prepare this action for trial in an efficient, proportionate and expeditious manner, in furtherance of the objective of “a fair process that results in a just adjudication of disputes”: Hryniak, at para.28.

[8] I heard submissions on the order of the proposed motions and accept the Plaintiffs’ submission that the Master’s Motions ought to proceed before the scheduling of any motions on summary judgment. The Master’s Motions have been discussed and pending for some time, and they will serve to formalize the evidentiary record on which the proposed summary judgment motions may be framed for determination.

[9] Accordingly, I will at this time schedule the Master’s Motions and hold down further consideration of the scheduling of the proposed summary judgment motions until these motions are determined. The parties may bring forward, and speak to their request for the scheduling of summary judgment motions after the determination of the Master’s Motions. To ensure that this action moves forward, the Master’s Motions must be brought within the time frame provided or they will not be heard before any scheduling of the proposed summary judgment motions.

A. Specific Case Management Directions

[10] Having considered the issues raised and submissions made at the 6^th^ CM Conference, I direct, in accordance with Rule 50.13(6), as follows:

(a) On the consent of the parties, as provided at the 6^th^ CM Conference, the Motion by Christiana Ceesay for the continuation of this action by her as a party Plaintiff no longer represented by a Litigation Guardian is granted. I order, as well, that the title of proceedings be amended accordingly, and in the form of the draft Order, filed. An Order shall issue accordingly.

(b) The CAS Defendants shall use their best efforts to comply with undertakings by November 30, 2020.

(c) Any motions that the Plaintiffs currently have identified for determination by the Case Management Master, being the Plaintiffs’ Motion for Undertakings, the Motion for Further Examination, the Motion for Examination of Defendant, the Motion for Inspection and the Motion for Particulars (collectively the “Plaintiffs’ Master’s Motions”), must be brought returnable before Case Management Master Josefo on February 25, 2021, to continue into February 26, 2021 if necessary, in accordance with the timetable set in paragraph 10(e), below.

(d) The motion that the Defendants have identified for determination by the Case Management Master, being the Defendants’ Motion for Undertakings, must be brought returnable before Case Management Master Josefo on February 25, 2021, to continue into February 26, 2021, if necessary, in accordance with the timetable set out in paragraph 10(e), below.

(e) The Plaintiffs’ Master’s Motions and the Defendants’ Motion for Undertakings, which I will refer to collectively as the “Pending Master’s Motions”, shall be prepared for hearing in accordance with the following Timetable:

(i) Any party bringing a Pending Master’s Motion shall deliver her or his Motion Record by December 9, 2020.

(ii) Any party responding to a Pending Master’s Motion shall deliver her or his Responding Motion Record by December 31, 2020.

(iii) If required, any moving party shall serve any Reply Motion Record by January 15, 2021;

(iv) If required, any cross-examinations shall be conducted by videoconference by January 29, 2021.

(v) Any party bringing a Pending Master’s Motion shall deliver her or his Factum by February 12, 2021.

(vi) Any party responding to a Pending Master’s Motion shall deliver her or his Factum by February 19, 2021.

(vii) The moving party on any Pending Master’s Motion shall deliver a Motion Confirmation Form in relation to each such Motion by February 22, 2021.

(viii) The Pending Master’s Motions shall be heard on February 25, 2021 and February 26, 2021, if necessary, by the Case Management Master.

(f) As the specific details of the Timetable for the development of the development of the Pending Master’s Motions (para. 10(e)) were not canvassed with the parties at the 6^th^ CM Conference, if any party considers that the Timetable does not provide sufficient time for the step indicated, that party may, by November 6, 2020, request a Case Management Conference for the adjustment of the timing for any step in the Timetable, after first conferring with other counsel and parties about the proposed modification to determine whether an agreement can be reached to vary the Timetable, and following the process set out in para. 12, below, for convening an urgent Case Management Conference.

(g) The parties may bring forward, and speak to their request for the scheduling of the Sesay/Bangura Motion for Summary Judgment and the TPS/CAS/WT Motion for Summary Judgment at the next Case Management Conference conducted upon completion of the Pending Master’s Motions.

(h) At the 6^th^ CM Conference, the next Case Management Conference was scheduled for February 25, 2021 at 3:00 pm. However, as this date will now be used for the hearing of the Pending Motions, the next Case Management Conference will be conducted one week later, on March 4, 2021 at 3:00 pm. This next Case Management Conference shall be conducted by video conference, using connection coordinates that will be provided by the Court.

B. General Case Management Directions

[11] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Parties ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.

[12] Any party who seeks to address an important issue identified in this Consolidated Action between now and the next scheduled case conference of March 4, 2021 at 3:00 p.m., and who considers that an urgent case conference would assist in expeditious and efficient handling of any such issue, may request the scheduling of a further case conference by letter to my judicial assistant, with copy to all counsel and self-represented parties, using the following protocol:

i. The party requesting the further case shall canvas with all other parties their availability for a video Case Management Conference at 4:30 pm;

ii. The party shall provide my judicial assistant with a list of three such dates on which all parties are available at 4:30 pm for a video Case Management Conference;

iii. The requesting party shall provide my judicial assistant with a written submission, of no more than 3 pages in length, copied to all parties, setting out the status of this proceeding and detail of the issue that requires the urgent scheduling of a Case Management Conference.

[13] With the sole exception of communication for the purpose of scheduling an urgent Case Management Conference in accordance with the procedure set out in paragraph 12, above, no party shall communicate with my judicial assistant. All communications in this case management must take place at a Case Management Conference with the participation of all parties.

[14] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with in accordance with Rule 77.07(6).

Sanfilippo J.

Released: October 30, 2020