Court File and Parties
Court File No.: CV-19-00631377-0000 Date: 2021-03-01 Superior Court of Justice – Ontario
Re: Tom Rossi, plaintiff And: Sanna Health Corp. et al, defendant
Before: S.F. Dunphy J.
Counsel: Paul Schwartzman and Anoushka Zaccharia, for the plaintiff Jason Jagpal, for the defendant
Heard at Toronto (by Telephone): February 24, 2021
Case Conference Endorsement (Conference #2)
[1] I conducted a first case conference in this matter in early January, the goal of which was to attempt to work out a means of scheduling a summary judgment motion to deal with this wrongful dismissal matter. In recognition of the principles embodied in R. 1.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, summary judgment is usually the preferred route to deal with wrongful dismissal claims, particularly where cause is not in issue.
[2] Tactical pleadings are the bane of the civil litigation bar. By tactical pleadings I refer to pleadings that counsel hope will achieve some sort of tactical goal in the litigation process even if there is little to no realistic expectation that anything other than pressure on the other side to settle will result. They seldom produce that result and add expense and friction to the process.
[3] The problem from the court’s perspective is tactical positions and bona fide legal claims cannot be diagnosed with certainty in a summary way, even if strong suspicions may be aroused that one is faced with a tactical pleading at first blush. And the court cannot deprive a party of its right to be heard on mere suspicion.
[4] It is here where I make an appeal to the bar to remember that the duty they owe to their clients includes TWO words that begin with the letter “A”: Advocacy and Advice. Clients have a right to expect their counsel to be fearless advocates for their rights. They also have a right to expect their lawyer’s objective advice about which claims or defences have a reasonable prospect of success and which look likely to introduce expense and delay into the process and run the risk of incurring costs sanctions or other negative outcomes.
[5] In this wrongful dismissal case, the plaintiff chose to sue his former employer and a number of directors and officers in their personal capacity. While I cannot say if the exceptional facts that may make such a course of action reasonable do not exist, I can say that it is seldom that they do. The defence for its part terminated the plaintiff’s employment on the eve of a change of control and in the context of an employment agreement that provided for a premium payable to the plaintiff in the event of a termination following a change in control. Issue is fairly joined between plaintiff and defendants on the proper interpretation of the contract and I express no view on that matter. The assertion in the statement of defence that the plaintiff’s dismissal was for cause, particularly cause relating to matters some months or longer in the rearview mirror, raises eyebrows as to how sincerely the claim is advanced. As noted, I cannot begin to assess such matters in a summary case conference beyond expressing the suspicion that the matter may warrant closer examination.
[6] Advocacy and advice. My role is to judge not to advise and I am in no position to judge on the limited record before me.
[7] The result of these potentially tactical claims persisting is that there is simply no realistic prospect of getting this case into shape for a summary judgment motion. I had hoped mediation might settle the matter or at least cause enough focus to be brought to bear on the real issues the parties need to litigate that such a motion with its attendant efficiencies in speed and cost relative to the amounts at issue could be possible. It was not to be. I cast no aspersions so much as drawing the parties’ attention to the state of affairs as I see it.
[8] On the bright side, the case is ready for trial and I am in a position to issue some directions that will hopefully achieve some streamlining for their benefit. Discoveries have been held, mediation has been tried. The plaintiff was waiting only for the outcome of this case conference to set the matter down for trial. That can now be attended to.
[9] My directions therefore are as follows:
The motion the defence has been looking to bring to appeal the costs award made against it for a “no show” at a motion set down when they were not available cannot be heard prior to trial and there is no point in diverting energies in that direction at this stage. I gather that the motion was filed and is awaiting a date. I am directing that the motion shall be returnable before the trial judge to be decided at the end of the trial.
This case is an appropriate case for some level of hybrid trial. Unfortunately, I don’t believe the parties have cooled down from the heat of battle sufficiently to address the matter dispassionately. I am directing them to start work on that NOW so as to have either a fully baked hybrid trial plan to present to the pre-trial judge or one where their differences have been talked through and the pre-trial judge can resolve outstanding details. The hybrid trial provisions I believe the parties should focus on: (a) Identify ALL witnesses needed. I am advised that there is a simmering valuation issue regarding an option or share entitlement in the employment contract. If an expert is going to be needed to address that issue, and it seems likely that one will, consider a joint expert but at all events get the expert(s) retained and reports exchanged forthwith. (b) Put together a joint book of documents in a form ready to be uploaded to CaseLines. Don’t forget to add hyperlinks for every document in the index so the trial judge can find documents quickly. All documents in the joint book of documents will be considered authentic and not need to be proved via a witness UNLESS a reservation is stated in the index. Each party shall be entitled to add documents to the joint brief and each party shall be entitled to add a reservation to the index if they wish. Efficiency not tactical advantage is the goal. Try to include only documents you expect to refer to at trial and remember that you are not precluded from proving documents “the old way” at trial should a document you didn’t expect to need become relevant for some reason. Obviously, ALL such documents should have been produced by now by one side or the other. (c) Identify the small number of witnesses that will need extensive cross-examination time set aside (i.e. half a day or so). Few if any witnesses should expect to require more than a half day. (d) Identify witnesses who will need only a short, focused cross-examination on the one or two issues they have relevant information to share and budget a short period of time for them (one hour). (e) Agree that all witnesses shall testify in chief by way of affidavit subject to a five minute “warm-up” in chief at trial to settle the witness (i.e. general introduction and affirm they are standing by affidavit) followed by cross-examination with the agreed upon time limits. (f) See what witnesses can be dispensed with altogether by way of agreed facts. (g) If there are witnesses that can be dealt with by way of Zoom or if their discovery transcript can be treated as their evidence, consider agreeing to that in advance and dispensing with that witness. (h) Throughout: see what issues that offer low probability of assisting a party and high probability of lengthening trial and adding expense can be withdrawn or dealt with in some other way.
When the parties have held enough discussions on this subject to tell a pre-trial judge with a straight face that they have gone as far down the road as they can towards getting a hybrid trial plan put together, they may approach the trial office with this endorsement in hand and try to get an early or expedited pre-trial date.
Don’t be afraid to settle before you run up significant trial preparation costs and both sides feel they have dug too deep a hole to turn back.
[10] I hope some or all of these comments are of some assistance to you collectively for it is in that spirit that I have written them out in as much detail as I have done.
S.F. Dunphy J. Date: March 1, 2021