Court File and Parties
Court File No.: CV-19-631672 Date: 2020-12-07 Superior Court of Justice – Ontario
Re: 2676547 Ontario Inc., Plaintiff And: Elle Mortgage Corporation, Sub-Prime Mortgage Corporation, Terry Michael Walman, Walman Catre & Stone, Tavasys Telecom Inc. and Danny Tavares, Defendants
Before: A.A. Sanfilippo J.
Counsel: John Lo Faso, for the Plaintiff Glenn Cohen, for the Defendants, Elle Mortgage Corporation, Sub-Prime Mortgage Corporation and Walman Catre & Stone Ranjan Das, for the Defendant Terry Michael Walman Richard Worsfold, for the Defendants Tavasys Telecom Inc. and Danny Tavares
Heard by Videoconference: December 4, 2020
Case Management Endorsement
1At the request of the parties, Justice F.L. Myers Wilson assigned this action into case management. I was appointed as the case management judge. The first case management conference was conducted on December 4, 2020, assisted by the written submissions, pleadings brief and brief of orders and directions, delivered by the parties.
A. Background
2This is a land dispute. The parties are litigating rights that each alleged to have, or had, in relation to property known municipally as 70A Elderberry Trail, Aurora, Ontario (the “Property”). The Plaintiff alleged that it entered into an Agreement of Purchase and Sale to acquire the Property from the mortgagee in possession, Sub-Prime Mortgage Corporation. This transaction did not close. The Plaintiff has sued not only Sub-Prime Mortgage Corporation, but also Elle Mortgage Corporation and Walman Catre & Stone (collectively the “Elle Mortgage Defendants”). The Plaintiff has also sued Terry Michael Walman who is said to be an officer and director of one or both of the corporate mortgagee defendants.
3The Defendant Tavasys Telecom Inc. purchased the Property on October 18, 2019. The Plaintiff has sued not only this purchasing corporation, but also Danny Tavares, who is said to be its principal (collectively the “Tavasys Defendants”).
4Although this action was initiated over one year ago, it remains at the pleading stage. The intervening time has been consumed with a motion brought by the Plaintiff for the issuance of a Certificate of Pending Litigation obtained and registered by the Plaintiff, without notice, on December 6, 2019, then discharged on full hearing by the Order of Master Josefo dated March 24, 2020. The Plaintiff brought a motion for leave to appeal, which was dismissed by the Divisional Court on October 9, 2020. The Plaintiff was ordered to pay costs totaling $56,000.
5Additionally, the Tavasys Defendants contended that the Plaintiff’s registration of a Certificate of Pending Litigation without a reasonable claim to an interest in the Property, gives rise to an exposure in damages under section 103(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, thereby expanding the matters in issue between these parties beyond those initially pleaded.
6On November 4, 2020, Justice F.L. Myers ordered, on the consent of the parties, that this action be assigned into case management, under Rule 77.06(1) of the Rules of Civil Procedure.
B. Purpose of Case Management
7The purpose of case management is to prepare a case for adjudication or, if the parties should so choose, resolution, as promptly, efficiently and cost-effectively as possible, always mindful of proportionality. The parties should always be working on a step or steps that move the action toward trial, and always have planned the next step required in the path toward trial. The parties do not need to move urgently, absent special circumstances, but must commit to proceeding consistently and efficiently in advancing the case toward trial.
8In my view, case management is not about layering motion upon motion. Case conferences are designed to “provide an opportunity for any or all of the issues in the proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain form the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding”: Rule 50.01. Case management conferences provide a forum for the parties to raise and address issues that impact and impede the orderly progression of an action to trial and foster an environment where the parties’ may accomplish their common objective of steadfastly advancing this action toward adjudication or, if they so choose, resolution.
9The parties and their counsel are expected to cooperate on procedural and scheduling matters to ensure there is a fair and just process for all, consistent with Rule 1.04 and with the principles of proportionality, fairness and efficiency set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28: “The principal goal remains the same: a fair process that results in a just adjudication of disputes.”
C. Issues Addressed at the Case Management Conference
10The Plaintiff is in the process of amending its statement of claim. Leave for this amendment was provided by Justice F.L. Myers on November 4, 2020. Upon this amendment being completed, the Defendants seek to deliver amended Statements of Defence.
11The Elle Mortgage Defendants and the Tavasys Defendants requested the scheduling of motions for security for costs, on the submission that the Plaintiff is a single-purpose entity that is without assets to satisfy any cost awards that might be rendered in favour of these Defendants in the event of their successful defence of this action. The Plaintiff denies these allegations. The Defendant Terry Michael Walman submitted that he is an unnecessary party to this action and contended that the Plaintiff ought to dismiss this action as against him and, otherwise, he joins with the other Defendants in seeking an Order for security for costs. Additionally, Mr. Waldman seeks particulars of the allegations advanced against him in the Amended Statement of Claim.
D. Specific Case Management Directions
12I direct as follows:
(a) The Plaintiff shall forthwith attend to the amendment of its Statement of Claim, the leave for which was granted by Order of this Court on November 4, 2020.
(b) The Elle Mortgage Defendants and the Tavasys Defendants may, by December 31, 2020, deliver Amended Statements of Defence (Rule 26).
(c) The Defendant Terry Michael Walman shall deliver any Demand for Particulars (Rule 25.10) by December 15, 2020. The Plaintiff shall respond to any such demand for particulars by January 8, 2021. The Defendant Terry Michael Walman shall deliver his Amended Statement of Defence within thirty days of receipt of the answers to the Demand for Particulars unless this Defendant considers that the answers so provided do not satisfy minimum pleading requirements (Rule 25.06), in which case this Defendant may bring this issue forward to the next case management conference.
(d) On the Parties’ consent, they shall confer and thereby continue their productive discussions on the potential for resolution of the Defendants’ demand for the Plaintiff’s posting of security for costs and shall bring this issue forward to the next case management conference.
(e) Subject to any further direction at the next Case Management Conference, the examinations for discovery of all parties in this action shall take place on February 23, 24 and 25, 2021, dates that are confirmed to be convenient to the parties’ schedules.
(f) The next Case Management Conference shall take place on January 26, 2021 at 4:00 pm, a time convenient to the parties and made available by the Court. This Case Management Conference shall take place by video conference, using video coordinates that will be provided by the Court.
(g) The parties shall, by January 25, 2021 at 1:00 pm, deliver a Case Conference Memorandum of no more than three pages setting out the status of the steps required to be taken in this matter, and listing the issues to be addressed at case conference. If they agree, the parties may concur in a single Case Conference Memorandum.
(h) The parties deliver their Case Conference Memorandum(s) by filing in the sync.com folder that has been established for this Case Management process. This on-line folder shall be maintained, subject to further Order.
E. General Case Management Directions
13No motion may be brought or scheduled for hearing in this action before being considered at a Case Management Conference.
14Any party who seeks to address an issue identified in this action between now and the next scheduled case conference of January 26, 2021, and who considers that an urgent case conference would assist in expeditious and efficient handling of any such issue, may request the scheduling of an urgent case conference using the following process: first, canvas with counsel opposite their availability for an urgent case management conference at 9:15 am, and concurrence to its scheduling, assembling a list of three such dates; then, with copy to all counsel, forward an email to my judicial assistant providing the list of the three available dates, together with a memorandum of not more than 2 pages explaining the issues to be addressed.
15Broad application of Rule 50. 13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel 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.
16The requirement of preparation, issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6).
A.A. Sanfilippo J.
Date: December 7, 2020