Geraldine Sanson v. John B. Paterson, 2020 ONSC 7773

COURT FILE NO.: CV-14-513023

DATE: 20201214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GERALDINE SANSON

Plaintiff

– and –

JOHN B. PATERSON

Defendant

Tammy Ring and Alec Yarascavitch, for the Plaintiff

Martin Forget and Riley McIntyre, for the Defendant

HEARD: December 4, 2020

a.a. SANFILIPPO J.

ENDORSEMENT

Overview

1This action arises from a motor vehicle collision that occurred on October 19, 2012, involving the plaintiff, Geraldine Sanson and the defendant John B. Paterson. Ms. Sanson was riding her bicycle when she alleges to have been struck by the defendant motorist. Ms. Sanson brought this action for personal injuries alleged to have been sustained.

2The jury trial in this action was scheduled for October 5, 2020. On October 1, 2020, the parties were notified that this trial was rescheduled to January 11, 2021. Ms. Sanson brought this motion, effectively on the eve of trial, for an order to remove Mr. Paterson’s lawyer of record. The motion does not seek the removal of the law firm representing Mr. Paterson, but only the lead counsel. The motion was based on the Plaintiff’s submission that the lawyer’s conduct necessitated her removal for the proper administration of justice.

3The Plaintiff’s allegation of improper conduct was based on the defence lawyer’s use of Summonses to Witness (“Summonses”), delivered under Rule 53.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Plaintiff contended that Mr. Paterson’s lawyer served four Summonses that were specifically intended to obtain pre-trial disclosure of evidence. The Plaintiff maintained, further, that this alleged pre-trial disclosure was in breach of Ms. Sanson’s privacy and confidentiality rights, pertained to evidence that was refused in this action and, in certain instances, was in relation to witnesses who were not identified on the defence witness list. The issues raised on this motion brought sharply into focus the proper purpose and use of a Summons to Witness.

4As additional or alternative relief, the Plaintiff sought an order to quash all Summonses served by the Defendant for the pending trial in this action and an Order to compel the Defendant to disclose the identity of any other witness summoned to trial by the defence.

5To succeed on a motion to remove the lawyer of record for an opposing party on the basis of conduct, the moving party must establish that a fair-minded and reasonably informed member of the public would conclude that the lawyer’s removal is necessary for the proper administration of justice. This is reserved to the rarest of cases. For the reasons that follow, I have determined that this is not such a case. This motion is dismissed.

I. BACKGROUND TO THIS MOTION

6In anticipation of the trial scheduled for October 5, 2020, Ms. Vanessa Tanner of Aviva Trial Lawyers, the counsel of record for Mr. Paterson (the “Defence Lawyer”), served four Summonses on the following witnesses: Henry Godzik, the Plaintiff’s certified personal trainer; Dr. Catherine McNally, the Plaintiff’s family doctor; Evolve Complete Chiropractic Care, whose director and chiropractor is Dr. Michael Sommers; and Dr. Marta Durski.

7These Summonses are in the form prescribed by Form 53A of the Rules of Civil Procedure. They are identical except that they are each customized to specify the name of the witness mandated to attend at the trial. The Plaintiff correctly takes no issue with any of these Summonses. These Summonses are compliant with Rule 53.04 and Form 53A.

8Each of the Summonses was accompanied by a cover letter signed by the Defence Lawyer. The letters to Mr. Godzik and Dr. McNally are both dated September 9, 2020 and the letter to Dr. Sommers is dated September 17, 2020. These three letters contain identical wording. I will set out the entire content of these letters, to frame and provide context for the analysis that follows, but I preview that only one paragraph was objected to by the Plaintiff:

“We have been retained to represent the defendant, John B. Paterson, in a lawsuit commenced by the Plaintiff, Geraldine Sanson.

The lawsuit involves a motor vehicle accident which occurred on October 19, 2012.

The trial of this action is scheduled to start on October 5, 2020 at 9:00 am in the Superior Court of Justice at 330 University Avenue, Toronto, Ontario.

Please find enclosed a Summons to Witness served upon you pursuant to the Rules of Civil Procedure and the Evidence Act.

You are required by law by this Summons to send someone from your office to the Courthouse at the opening of trial on October 5, 2020 at 9:00 am, with any relevant documents as listed in the Summons in a sealed envelope to be deposited with the Court for the duration of this trial.

You will also find enclosed conduct money of $53.00 served upon you pursuant to the Rules of Civil Procedure and the Evidence Act.

Please do not cash this cheque before fulfilling your requirements (providing a copy of your complete file) under the summons as you maybe asked to pay the money back.

Please note that due to the recent COVID-19 restrictions, you may make arrangements to deliver your documents via email or other sources with my office.

I ask that you provide me with your contact information which will enable me to reach you closer to the trial date to advise of the Courtroom number where you will be required to deposit your file.

Please be advised that due to COVID-19, this trial may be postponed. At that time you will (sic) contacted by my office and asked to return the cheque provided. It is imperative that you reach out to me prior to October 1, 2020.

You can contact me at [telephone number], or at [email address] if you have any questions regarding this matter.” [All emphasis in original]

9The paragraph objected to by the Plaintiff (the “Objected Paragraph”), is the following:

“Please note that due to the recent COVID 19 restrictions, you may make arrangements to deliver your documents via email or other sources with my office.”

10The cover letter to Dr. Durski, dated September 28, 2020 does not contain the Objected Paragraph. The Plaintiff submitted that this is because the Plaintiff had by then raised issues regarding this paragraph, causing the Defence Counsel to remove it from her cover letter. Nonetheless, the Plaintiff contended that the Summons served on Dr. Durski must also be quashed because it is tainted by the Defence Lawyer’s attempt at pre-trial discovery.

II. POSITIONS TAKEN ON THIS MOTION

11The Plaintiff contended that the Objected Paragraph, read together with the cover letter and Summons as a whole, and viewed through the lens of a witness being compelled to attend a Courthouse during a global pandemic, was an attempt to coerce or manipulate a witness into providing confidential documents prior to trial in exchange for being excused from attending at trial. The Plaintiff submitted that the Objected Paragraph shows that the purpose for serving these Summonses was an attempt at impermissible pre-trial discovery. The Plaintiff contended that this was a proposal to barter: provide the documents in advance of trial or attend at the Courthouse in the midst of a pandemic.

12The Plaintiff’s position is principally based on the wording of the Objected Paragraph. The Plaintiff submitted that its only reasonable interpretation is that the witness being summoned is invited to make arrangements with the Defence Lawyer’s office to deliver documents to her “via email or other sources” before trial and thereby be excused from attendance at trial. The Defendant submitted that the Objected Paragraph invited a witness to contact the Defence Lawyer by “email or other sources” to make arrangements for the delivery of documents at trial: not to deliver the documents to the Defence Lawyer before the trial. The Defendant contended that its interpretation accords with multiple other references in the Summons and the cover letter that specifically stated that the witnesses are to bring their documents to trial, in a “sealed envelope” which, of course, is incapable of being done by email.

13To support its interpretation of the Objected Paragraph, the Plaintiff urged consideration of the context in which these witnesses were summoned to trial which, the Plaintiff contended, is replete with breaches of the Rules. First, the Plaintiff submitted that the Defendant did not list certain of these four witnesses on her witness list notwithstanding that this action has proceeded through four pre-trial conferences. Second, certain of the evidence that is expected to be elicited from certain of these summoned witnesses had been refused by the Plaintiff during the discovery stage of this action and no motion was brought by the Defendant to compel this evidence. Third, the Plaintiff submitted that the Summonses were an attempt to intimidate these witnesses into delivering documents to the Defence Lawyer prior to trial notwithstanding the witnesses’ obligations of client privacy and confidentiality.

14In furtherance of this last submission, the Plaintiff tendered the affidavit evidence of two of the summoned witnesses: Mr. Godzik and Dr. Sommers. Mr. Godzik deposed that he felt intimidated by the Summons and accompanying cover letter and “distressed by the prospect of being required to attend court in the midst of a pandemic to deliver records that I have already provided”. Dr. Sommers’ affidavit contains a statement worded identically.

15The day after receipt of his Summons, Mr. Godzik brought the cover letter and Summons to the attention of the Plaintiff. Mr. Godzik did not deliver any documents to the Defence Lawyer. Mr. Godzik did not speak with the Defence Lawyer.

16Dr. Sommers deposed that he spoke with the Defence Lawyer upon receipt of the Summons and was told that he “did not necessarily have to attend court as long as I provided my records”. On cross-examination, Dr. Sommers testified that he had a “decently cordial conversation” with the Defence Lawyer in which she told him that he was not required to attend at the opening of trial. Dr. Sommers recalled that the Defence Lawyer asked him of his specialty, but that his evidence was not discussed. Although Dr. Sommers testified that he “felt swindled” by the Defence Lawyer’s conduct, he conceded in cross-examination that he knew and understood, throughout, that his records were subject to confidentiality in favour of the Plaintiff and that they could not be produced except on his patient’s consent or at trial. Dr. Sommers admitted that he was also concerned of the impact that time required for attendance at trial could have on his busy practice.

17Dr. Sommers testified that he spoke with his client within 60-90 minutes of being served with the Summons and determined that he would not produce any documents to the Defence Lawyer without the client’s consent or a Court order. Accordingly, any uncertainty caused by the wording of the cover letter was clarified for Dr. Sommers within this time frame without disclosure of confidential information to the Defence Lawyer. Last, the motion record showed that the Plaintiff had already produced in this action over 800 pages of Dr. Sommers’ clinical notes and records, as recently as February 2020. I take from this that there was an understanding that Dr. Sommers could have a role in this trial.

18There is no evidence that the Defence Lawyer had any contact with Dr. McNally or Dr. Durski. They did not produce any documents to the Defence Lawyer. Like Dr. Sommers, Dr. McNally’s records had been produced in the action.

19The Plaintiff relied heavily on the production of documents by Mr. Bryan Marchetti, the director of a gym formerly known as Systems Fitness and now known as Conquest Fitness, as representative of the Defence Lawyer’s plan to use a Summons to obtain pre-trial discovery. On September 24, 2020, Mr. Marchetti sent an email to both the Defence Lawyer and to the counsel for the Plaintiff attaching the gym’s attendance records showing the days that the Plaintiff attended at Systems Fitness. Mr. Joseph Chan, a lawyer working with the Defence Lawyer, deposed that this came about further to a call that he made to Systems Fitness to make sure that they had received the Summons, only to learn that it had not been received by Mr. Marchetti due to corporate transition. As a result of their discussion, Mr. Marchetti sent the attendance records to both counsel for the Plaintiff and for the Defendant. There is no evidence that the Defence Lawyer was involved in this exchange other than as a recipient of the attendance records sent by Mr. Marchetti.

III. THIS MOTION

20The Plaintiff sought the following relief:

(a) An Order removing the Defence Lawyer as counsel of record for the Defendant;

(b) In addition, or in the alternative, an Order quashing the Summonses served by the Defendant for the pending trial;

(c) An Order requiring the Defence Lawyer to disclose any and all information and documents that she secured from those witnesses upon whom a Summons was served.

IV. GOVERNING PRINCIPLES IN THE REMOVAL OF COUNSEL

21Although the Plaintiff purported to rely on certain Rules of Civil Procedure in support of her motion, none were applicable to the primary relief sought: to remove another party’s counsel of record. The Plaintiff referred to Rule 15.04 as analogous, but I do not see the connection between a Rule applicable to a lawyer seeking to remove herself from record and a party seeking to remove another party’s lawyer.

22The removal of counsel is within the inherent jurisdiction of the Court: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. The test for removing counsel is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice: Kaiser (Re), 2011 ONCA 713, 84 C.B.R. (5th) 269, at para. 21. This principle was applied by the Court of Appeal in Maftoun v. Banitaba, 2012 ONCA 786, at para. 4, and in Best v. Cox, 2013 ONCA 695, at para. 8, wherein the Court of Appeal affirmed the statement of Cronk J.A. in Kaiser (Re), at para. 21:

As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause…” For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice … [Citations omitted.]

23These principles can be traced to the values identified by the Supreme Court of Canada in MacDonald, at p. 1243, as applicable to the consideration of removal of counsel. The Supreme Court stated that the values to assess are: first, “the concern to maintain the high standards of the legal profession and the integrity of our system of justice”, and; second, “the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause.” There was a third value stated in MacDonald, “the desirability of permitting reasonable mobility in the legal profession”, but it is not relevant to the issue on this motion. Of these values, primacy is given to the integrity of both the legal profession and the administration of justice over the other two competing values: Ontario v. Chartis Insurance Company of Canada, 2017 ONCA 59, at para. 70, citing Wallace v. Canadian Pacific Railway, 2011 SKCA 108, 340 D.L.R. (4th) 402, at para. 55, rev’d on other grounds (sub nom. Canadian National Railway Co. v. McKercher LLP), 2013 SCC 39, [2013] 2 S.C.R. 649.

24Here, the Plaintiff did not seek to remove the Defence Counsel on the basis of a conflict of interest arising from a prior retainer, such as in MacDonald, Chartis, Kaiser (Re) or Maftoun. The Plaintiff sought to remove the Defence Counsel on the basis of alleged improper conduct. Although a motion of this nature is rare, a survey of the authorities showed that there are other instances in which the Court has been asked to remove counsel of record for the opposing party based on conduct: Zawadzki v. Matthews Group Ltd. (1998), 50 O.T.C. 392 (Ont. C.J. Gen. Div.); 781332 Ontario Inc. v. Mortgage Insurance Co. of Canada (1991), 1991 CanLII 7076 (ON SC), 5 O.R. (3d) 248 (Gen. Div.); Chapman v. 3M Canada Inc. (1995), 1995 CanLII 7128 (ON SC), 25 OR (3d) 658 (Gen. Div.); Straw v. ThyssenKrupp, 2020 ONSC 5253. The Court did not order the removal of the counsel for the opposing party in any of these cases.

25The parties did not identify a single instance in which the Court has rendered an order for removal of counsel for an opposing party based on alleged improper conduct. The order sought by the Plaintiff on this motion was unprecedented.

26The Plaintiff relied heavily on Smith v. Muir, 2019 ONSC 2431. There, the Court found that a defence lawyer had exceeded the permissible use of a Summons by expressly requiring that the summoned witnesses, in that case the plaintiff’s family doctor and a neuropsychiatrist, deliver to him their entire file before trial. Justice R. Raikes found that this “went too far” in that it invited an unwitting health practitioner to breach the duties of confidentiality and privacy owed to the plaintiff. Raikes J. declined to remove the offending lawyer from the record, on his finding that “a fair-minded and reasonably informed member of the public would be troubled by defence counsel’s conduct but would not remove him as counsel of record in the facts of this case”, but commented that it was a “close call”: Smith, at para. 37.

27The Defendant submitted that the findings in Smith support the dismissal of this motion because even with a clear finding that the defence counsel had exceeded the permissible use of a Summons – being the express and deliberate use of the Summons for pre-trial discovery - the Court did not remove the defence counsel from the record. The Defendant relied also on Burgess (Litigation Guardian of) v. Wu (2003), 2003 CanLII 6385 (ON SC), 235 D.L.R. (4th) 341, where Ferguson J. found that counsel for the defendant had engaged in substantive discussions with one of the plaintiff’s treating physicians, and then retained that physician to act as an expert witness for the defence. Although Ferguson J. found that the defence counsel’s conduct was improper, he saw no benefit in removing the defendant’s lawyer as it would only increase costs and cause further delay: at para. 140.

V. ANALYSIS

A. The Removal of Counsel of Record

28A Summons served under Rule 53 cannot be used to obtain pre-trial discovery. The Summons serves only the two purposes set out in Rule 53.04: that the witness “attend the trial at the time and place stated in the summons”; and, that the witness “produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action”.

29Once at trial, regardless of whether the witness is called by the party with whom the witness has a relationship or whether the witness is called by the party opposite in interest, the witness must answer all relevant questions: Burgess, at para. 55. This is to enable the judge or jury to have the evidence necessary to render a just verdict: A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at para. 38.

30The Plaintiff submitted that the Defence Lawyer’s use of the Summons, accompanied by the letter, impermissibly exceeded the proper use of the Summons in a manner that would cause a reasonably informed member of the public to conclude that the lawyer’s removal is necessary for the proper administration of justice. I do not accept this submission. I will explain why.

31I do not accept the Plaintiff’s submission that a reasonably informed member of the public would interpret the cover letter to be an invitation to a medical caregiver, who is subject to a duty of patient confidentiality, or a record holder who is subject to a duty of privacy, to barter the abandonment of their duty of confidentiality or of privacy in exchange for being excused from the obligation imposed by the Summons to attend in Court. I accept that the wording of the Objected Paragraph is ambiguous when read alone because it gives rise to two contrasting interpretations: the Plaintiff’s interpretation, that the summoned witness may “make arrangements via email or other sources with my office” for the delivery of documents prior to trial; or the defence interpretation that the summoned witness may “make arrangements via email or other sources with my office” for the delivery of documents at trial.

32However, the Objected Paragraph must be read in the context of the Summons and the cover letter taken as a whole, including as follows:

(a) The second paragraph of the Summons stated clearly that the witness is required to “BRING WITH YOU and produce at the hearing the following documents and things…”

(b) The cover letter stated clearly that the witness was required by law by the Summons to deliver to the Court any relevant documents as listed in the Summons “in a sealed envelope to be deposited with the Court for the duration of this trial”.

(c) In the paragraph immediately following the Objected Paragraph, the Defence Lawyer asked that the witnesses provide their contact information, so that they could be contacted closer to trial to be advised “of the Courtroom number where you will be required to deposit your file”.

(d) The cover letter stated that it was imperative that the witnesses “reach out to me prior to October 1, 2020”. This request was contained in a paragraph that notified the witness that the trial may be postponed due to the pandemic, not in a paragraph that spoke to the necessity to bring documents to trial.

33These references show that the Summons and the cover letter stated, in numerous instances, that the witnesses’ obligation was to bring documents to Court and deposit the documents in Court, highlighted by the instruction to bring the documents “in a sealed envelope”.

34The test for removal requires an objective assessment of how a reasonably informed member of the public would interpret the Objected Paragraph in the context of these passages contained in the Summons and the cover letter. I am not assisted in this analysis by the evidence of Mr. Godzik and Dr. Sommers because I am not satisfied, on the evidence contained in the record, that they considered, or even read the entirety of the cover letter and Summons before becoming distressed at the prospect of attending a physical trial during a pandemic.

35I find that a reasonably informed member of the public would not interpret the cover letter as an attempt by the Defence Counsel to obtain pre-trial documentary production. Read objectively and thoroughly, a reasonably informed member of the public would not conclude that the cover letter and Summons required pre-trial disclosure of confidential and private records. This is particularly so in the case of the summoned medical professionals who understand, or ought to understand, that they owe a duty of confidentiality to their patient and would be expected to read the Summons and the cover letter through the lens of that duty.

36There is no evidence of any medical records being produced to the Defence Lawyer through the Summons or the cover letter. The only documents produced were the gym’s daily attendance records, delivered by Mr. Marchetti of Systems Fitness to both the Plaintiff’s counsel and the Defence Lawyer. However, I saw no evidence of any involvement by the Defence Lawyer in the steps that led to this production. Indeed, the cover letter and Summons to Systems Fitness were not even part of the record on this motion.

37There is no evidence of any communications between the Defence Lawyer and Mr. Godzik or Dr. McNally or Dr. Dursky, at all. There was a discussion by the Defence Lawyer with Dr. Sommers, but I cannot find that the elements discussed in this call would be sufficient to support the removal of a lawyer from the record.

38The Plaintiff’s submission that the Defence Lawyer failed to identify certain of the summoned witnesses in a witness list, or that certain of the evidence is inadmissible or inconsistent with pre-trial disclosure requirements, is not a basis to remove a counsel from the record. The Plaintiff can raise these issues with the trial judge, if considered material to the admissibility of evidence at trial. I do not accept the Plaintiff’s submission that these alleged breaches of the Rules inform my determination of whether the Defence Lawyer attempted improper pre-trial discovery.

39The Plaintiff has failed to establish that a fair-minded and reasonably informed member of the public would conclude, on the evidence on this motion, that the Defence Lawyer’s removal is necessary for the proper administration of justice. I thereby decline to provide this relief.

40Last, I make an observation regarding how this Motion was structured. The Plaintiff sought only the removal of the Defence Lawyer, not the law firm with which she practices. If the Plaintiff had established that there had been a breach of confidentiality resulting from production of evidence before trial, this evidence would now be in the possession of the law firm acting for the Defendant. In Smith, Straw and Burgess, the cases most directly applicable and relied upon by the parties, the relief sought was the removal of the law firm representing the opposing party. Had the Plaintiff established that removal was necessary for the proper administration of justice, I would have questioned the benefit of removing a single lawyer when the alleged receipt of confidential evidence said to have been obtained improperly before trial was alleged to be in the possession of the law firm.

B. The Additional or Alternative Relief Sought

41The Plaintiff sought two forms of additional or alternative relief: (i) an Order quashing all Summonses served by the Defendant, and; (ii) an Order requiring the Defendant to disclose any and all information obtained from witnesses upon whom Summonses were served.

42I will quickly address the second form of additional relief. There were four Summonses at the core of this motion, served on Mr. Godzik, Dr. McNally, Dr. Sommers and Dr. Durski. None resulted in the disclosure of any documents and no evidence of any significance, the only evidence of any nature being from Dr. Sommers. Accordingly, I see no merit in this alternative relief on the record on this motion and thereby decline to grant this relief.

43The relief sought by the Plaintiff to quash all Summonses served by the Defendant, including those not before me on this Motion, leaving the Defendant with no witness evidence at trial, is excessive and unfounded on the record on this Motion. However, I have concluded that any issue pertaining to the Summonses served by the Defendant, or either party for that matter, ought not to be determined on motion at the eve of trial but should be reserved to the trial judge. I will explain why.

44As I have explained, a Summons served under Rule 53 is for the purpose of trial. The ultimate responsibility for the determination of the admissibility and relevance of evidence by a witness at trial is reserved to the trial judge: R. v. Grueneke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 293; Allen v. Morissette (1993), 1993 CanLII 14663 (ON CA), 69 O.A.C. 76 (C.A.). This is reflected throughout the Rules, which contain numerous provisions that provide discretion to the trial judge to grant leave to admit evidence that would otherwise be inadmissible by reason of procedural breach, including, by way of example: Rule 30.08 (leave to rely a trial on a document that was not disclosed in an affidavit of documents); Rule 30.09 (leave to rely at trial on a document over which privilege was claimed in pre-trial documentary disclosure); Rule 31.07(2) (leave to introduce evidence at trial refused at discovery); 31.09(3) (leave to introduce at trial evidence on answers not corrected on discovery); Rule 31.11(6) (leave to admit evidence of person unavailable or unable to testify); Rule 53.03(3) (leave for expert to testify on issue not set out in expert report) and Rule 53.08(1).

45In recognition of the authority of the trial judge to control the admissibility of evidence at trial, including the tendering of witness testimony through Summonses, I will reserve the Plaintiff’s request to quash the Defendant’s Summonses to the trial judge. In doing so, I ought not to be taken to intend that I consider that this issue requires the attention of the trial judge, that it is a close call or requires additional context for assessment, because I have made no such findings. However, I reserve this issue to the trial judge because I am of the view that procedural rulings affecting the evidence at trial should not be brought on the eve of trial before a Motions judge but should be reserved to the trial judge.

C. Conclusions

46I am not satisfied that this is one of those rare cases where it is necessary for the administration of justice that, in exercise of the Court’s inherent jurisdiction, the Court should order the removal of a lawyer of record. The Plaintiff has not established that a fair-minded and reasonably informed member of the public would conclude that the Defence Lawyer’s removal is necessary for the proper administration of justice.

47The Plaintiff has not established, on this record, that I should order disclosure of all evidence pertaining to Summonses not identified in this Motion. I am similarly not satisfied that there is any basis to grant the Order sought by the Plaintiff to quash any or all Summonses served by the Defendant, but have concluded that any issue pertaining to the quashing of the Summonses issued by the Defendant for the purposes of this pending trial affect the evidence available at trial and must be reserved to the trial judge.

VI. DISPOSITION

48This motion is dismissed.

VII. COSTS

49I encourage the parties to confer and agree on the issue of costs.

50If the parties are unable to agree on the issue of costs, they may deliver written submissions on costs (Rule 57.01(7)) by delivery to my judicial assistant and by uploading to the on-line document storage folder at sync.com, according to the following schedule: (i) any party seeking costs, shall, on or by December 31, 2020, serve and file their Cost Outline (Rule 57.01(6)), together with any supporting material and their written submission of no more than 4 pages with authorities hyperlinked; (ii) any party against whom costs are sought shall, on or by January 15, 2021, serve and file their responding written submissions of no more than 4 pages with authorities hyperlinked.

51If no party delivers any written submissions on costs by December 31, 2020, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J.