Court File and Parties

2020 ONSC 7035

COURT FILE NO.: CV-01-222572

DATE: 20201117

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sun Life Assurance Company of Canada, Plaintiff/Defendant by Counterclaim

AND:

Nubase Technologies Inc., Defendant/Plaintiff by Counterclaim

BEFORE: Darla A. Wilson J.

COUNSEL: Gillian Dingle, for the Plaintiff/Defendant by Counterclaim

Roy Wise, for the Defendant/Plaintiff by Counterclaim

HEARD: November 6th, 2020

ENDORSEMENT

[1] This action is a contractual dispute in which each party alleges the other breached its contractual obligations. In a nutshell, in April 2001, the parties entered into a series of agreements for the use of Nubase’s software by Sun Life’s retail customers. Sun Life issued the action in 2001 claiming damages for breach of contract for Nubase’s failure to deliver products in accordance with the agreement. The Defendant issued a counterclaim for damages for breach of contract and asserted that Sun Life made it impossible to meet its obligations pursuant to the contract. Significant damages are sought in the claim and in the counterclaim.

[2] It appears the parties have had the benefit of judicial involvement from very early on in this action. The Master set a timetable for the exchange of productions and attendance at a mediation. Pursuant to the order of Master Haberman of April 25, 2002, affidavits of documents and productions were to be exchanged by August 30, 2002 and the mediation completed by October 18, 2002.

[3] That timetable was not complied with and it appears that instead, the Defendant switched counsel, and there was someone from the corporation acting for a period of time, without obtaining leave from the Court. As a result, Master Haberman set a new timetable, requiring the Defendant to deliver its affidavit of documents and productions by December 31, 2002 and the mediation was to be completed by March 31, 2003.

[4] It is unclear what transpired in this action in 2003, and 2004 as neither counsel addressed this time period in their submissions.

[5] The Plaintiff brought a motion for security for costs in 2005, which was adjourned several times apparently because of the failure of the Defendant to file its materials. I do not know what the outcome of that motion was. Nubase then brought a motion for a further and better affidavit of documents. This motion led to cross examinations on affidavits which went on for two years.

[6] A consent motion was heard by Master Haberman on May 25, 2010 to vary the timetable. The time for completing the examinations for discovery was extended from February 28, 2010 to October 15, 2010. The time to answer the undertakings was extended to December 31, 2010 and the mediation was to be completed by February 28, 2011. Master Haberman further ordered that the action be set down for trial by June 30, 2011 failing which it would be dismissed without notice.

[7] On June 28, 2011, the parties brought yet another consent motion before the Court. Master Haberman ordered that the timetable be varied so that the time for the examinations for discovery was extended from October 15, 2010 to September 30, 2011. She extended the time to answer undertakings from December 31, 2010 to November 30, 2011. The time for the mediation was extended from February 28, 2011 to October 18, 2011. Master Haberman ordered that the action be set down for trial by December 31, 2011 failing which it would be dismissed without further notice.

[8] Master Brott varied the timetable yet again and made an order on December 15, 2011 requiring the examinations for discovery to be completed by June 30, 2012 and undertakings to be answered by September 30, 2012. Furthermore, she ordered that the mediation be held by March 8, 2012 and the action set down for trial by December 30, 2012. The parties did not comply with this timetable.

[9] As a result, a consent motion to vary the timetable and to extend the time to set the action down for trial was heard by Master Haberman on January 17, 2013. The Master ordered that the action be set down for trial by December 31, 2013 failing which it would be dismissed with costs. Master Haberman varied the timetable to permit the completion of the examinations for discovery by August 30, 2013 and the undertakings to be answered by October 30, 2013.

[10] I was not advised of what, if anything, transpired in this action from 2013 to 2018 because neither counsel addressed this time period in their written submissions. Five years is a long time in the life of a litigation file.

[11] Counsel appeared before Justice Firestone on December 12, 2018 and on consent, a 28-day fixed trial was set for January 11, 2021. A pre-trial conference was fixed on consent for November 12, 2020. As well, counsel agreed to a timetable for the delivery of expert reports. The parties each agreed to deliver their expert reports by June 11, 2020. The Plaintiff agreed to deliver its expert reply reports and updated damage reports by September 11, 2020. The Defendant agreed to deliver its updated reports by November 13, 2020. Justice Firestone approved the timetable, so that it had the force and effect of a Court order.

[12] The trial coordinator sent counsel the information for the pre-trial on November 12th to be conducted by Zoom. She was advised by counsel that the action was not ready for pretrial because the expert reports were not available and further discoveries might need to be conducted. A consent adjournment was being sought.

[13] In my capacity as co-leader of the civil team of judges, I am responsible for trials and pre-trial conferences. As a result, the trial coordinator arranged a teleconference with counsel on November 6th.

[14] Counsel for the Defendant advised me that in October 2019 over 500 new documents had been produced by the Plaintiff and that only recently Sun Life complied with its undertakings. Counsel for the Plaintiff told me that the Defendant had not completed its answers to the written interrogatories that were served on February 14, 2020. Since I was not familiar with the history of this action, I directed that counsel send me brief written submissions explaining why they were not ready for trial.

[15] I have reviewed the submissions that were sent to me by counsel. The Plaintiff submits that “critical steps remain to be completed.” Nubase has not answered the last round of discovery questions and has failed to serve it expert reports on liability or damages. Sun Life asserts that the discoveries started in 2007 and comprised “many days” but still are not complete. Sun Life submits that it has taken “all possible steps to prepare for trial” since the trial date was fixed in 2018. Sun Life states that it realized only in May 2020 that its undertakings had not been answered; this was remedied in September 2020. It asserts that because Nubase has delivered only part of its liability report and has not served its expert report on damages, the Plaintiff cannot prepare for trial. Sun Life submits that without an adjournment of the trial date, it will be prejudiced in a significant manner. It fails to articulate what the prejudice is.

[16] Nubase’s submissions really do not add much to the history of this action nor to the reasons justifying an adjournment. Counsel asserts that the “lack of documentation” has hindered the matter moving forward as has the fact that many of Sun Life’s employees are no longer with the company. Somewhat incredibly, counsel submits that “Because of the need to produce all relevant documents for each question [written interrogatories], the two Nubase principals, both involved in demanding and intensive IT positions and both being family men, have had great difficulty in finding the necessary time to review all documents in order to provide proper responses.” Nubase has not delivered an expert report on liability or on damages and counsel is unable to advise when expert reports might be served.

Analysis

[17] The manner in which this action has proceeded through the justice system over the course of 19 years is nothing short of disgraceful. This is a case of breach of contract; there is nothing that distinguishes it from many other cases arising from alleged breaches of agreements that make their way through the Court system. What is unusual, however, is the number of times the Court has attempted to move this action forward by implementing timetables for the usual steps in a litigation case: delivery of affidavits of documents; attendance at examinations for discovery; answering undertakings from the discovery; serving expert reports; attending mediation; and setting the action down for trial. As I have noted, the parties had the benefit of the involvement of the Master early on, from 2002. Each time, the parties breached the timetable deadlines and returned to the Master for extensions.

[18] By my count, which I do not believe to be complete, Master Haberman issued orders varying the timetable no less than 6 times at the request of counsel, because they had failed to comply with the timetable deadlines they had agreed to. Master Brott in 2012 made a further order for an extension of the existing timetable. There was apparently an attendance before the Court in 2017 to obtain yet another extension of the time for setting the action down for trial.

[19] Counsel appeared before Justice Firestone in December 2018 and they fixed the trial date for January 2021, more than 2 years away. In my view, that was more than ample time to complete whatever steps remained outstanding—finishing the discoveries, producing any remaining documentation, answering the undertakings and obtaining expert reports. I say this recognizing that the parties had already been involved in litigation for 17 years at that point and had attended before the court on numerous occasions seeking and obtaining indulgences from the Court to extend the time for the completion of various steps. Instead of giving this case priority in 2019 and 2020, as the pre-trial date and trial date approached, counsel seem to have done very little to ensure the case was ready for trial. Perhaps given that they had breached 7 or 8 timetables over the years and had simply gotten extensions on consent, they seemingly were of the view that on a consent basis, the trial would be adjourned.

[20] The fact that both parties have changed counsel at various points does not account for the inordinate delay; nor does the fact that the action involves a great deal of documentary production. This case has been in the judicial system for 19 years; I would be surprised if either counsel has a case in their portfolio that is older than this one. That, in itself, ought to have caused counsel to ensure that there were no further delays in this action and that each party was ready to proceed on the agreed upon trial date.

[21] Fixing a trial date is a significant event in the litigation process. So is agreeing to a timetable for the completion of various steps. I appreciate that sometimes, something unexpected occurs that prevents counsel from complying with their timetable or for being ready for trial. In Toronto, adjournments of fixed trial dates are granted only in extenuating circumstances. Counsel did not suggest that anything unusual happened to account for their failure to be ready for trial. Neither counsel suggested that Covid played any role in their inability to comply with the 2018 timetable for the delivery of expert reports. Having a case that involves many documents or large companies with employees that have retired or are no longer with the company does not justify multiple breaches of court orders.

[22] Rule 52.02 of the Rules of Civil Procedure provides that a judge may adjourn a trial to such time and on such terms as are just. It does not appear to me that counsel respected the January 2021 trial date or the timetable they agreed to for the delivery of expert reports. They have failed to provide a reasonable explanation for their inability to be ready for the trial.

[23] Given the history of this action, I am reluctant to adjourn the trial date. However, until the expert reports are in hand, the case is not ready for trial. Counsel suggested another amended timetable to provide that their expert reports be served commencing in January 2021 and finishing in June 2021. It appears they wish the trial to proceed in the fall of 2021, a year away. I am not prepared to grant such a lengthy adjournment in light of its history of inordinate delay.

[24] The Court has capacity for this 28-day trial on May 17, 2021 and I adjourn the trial to that date, peremptory on all parties. Counsel can contact the trial coordinator to secure a pre-trial date. I order the following timetable:

• Nubase shall deliver answers to outstanding written interrogatories by November 30, 2020.

• Nubase shall deliver its second expert liability report by December 31, 2020.

• Nubase shall deliver its expert report on damages by February 1, 2021.

• Sun Life shall deliver its expert report on liability by February 15, 2021

• Sun Life shall deliver its expert report on damages by March 15, 2021.

• Any reply reports are to be delivered by April 30, 2021.

Date: November 17, 2020