COURT FILE NO.: CV-16-553042

DATE: 20210419

ONTARIO SUPERIOR COURT OF JUSTICE

RE: COHEN, Plaintiff

-and-

WOODCLIFF, Defendant

BEFORE: F.L. Myers J.

COUNSEL: Jamie VanWiechen, for the plaintiff Maureen Whelton and Neil Wilson, for the defendant

HEARD: April 19, 2021

ENDORSEMENT

[1] The defendant moves for another adjournment of this civil, non-jury trial scheduled for two-weeks to begin on April 26, 2021.

[2] For the reasons set out below, I conclude that it is appropriate to recognize the child care responsibilities of the defendant’s counsel given the extraordinary third wave COVID-19 lockdown in which we are now embroiled. However, the trial must be heard. It will be re-scheduled for June, 2021 peremptory to the defendant.

[3] The plaintiff claims a share of profits on a sale of land that took place in 2016.

[4] This lawsuit is five years old. The plaintiff set it down for trial in September, 2018.

[5] It took 17 months for the case to reach trial after being set down. The trial was initially scheduled for February, 2020.

[6] On the first day of trial, the defendant’s counsel took seriously ill. The trial was therefore adjourned to accommodate the defendant’s counsel.

[7] The plaintiff waited another year for the trial to commence.

[8] The trial was set to resume in February, 2021. When the trial was called, the court did not have a judge available. The trial was adjourned for a second time.

[9] The court gives priority to hearing trials that have been adjourned due to institutional reasons. The parties agreed with the Trial Coordinator to re-schedule the trial for April 12, 2021.

[10] Before that date could be formally ordered, the Government announced that March Break for school children would be deferred to the week of April 12, 2021.

[11] Ms. Whelton has two children with special needs. Her usual supports are not available due to the lockdown. Mr. Wilson has two young children at home too.

[12] The defendant’s counsel again requested accommodation. The parties agreed to a two week delay of the trial to April 26, 2021. The Trial Coordinator could not schedule the trial to start that week because the court would not have been available for the second week of the trial due to a long-planned education course for judges and associate judges of this court throughout Ontario.

[13] At a case conference to re-schedule the trial, D. Wilson J. allowed the trial to be scheduled to commence April 26, 2021 despite the judges’ education conference. Justice Wilson accorded this case priority and accepted that allowances will be made to ensure that it is heard.

[14] With the trial two weeks away, last week, counsel for the defendant served a new expert report. The defendant has purported to improve his evidence during an interregnum taken to accommodate his counsel’s family responsibilities.

[15] The delivery of a report right before trial appears to violate Rule 53.03 (2) and presumably, the order enforcing the schedule made under Rule 53.03 (2.2). The report was too late to be admissible as a supplementary report under Rule 53.03 (3).

[16] The defendant seems to have acted to breach the Rules and a judge’s order without so much as a “by your leave”.

[17] The new expert report is presumptively inadmissible at the trial without leave of the trial judge.

[18] If leave was not sought because counsel expects that the trial judge will be required to allow the late report to be admitted under Rule 53.08 (2)(5), I suggest counsel re-consider that tactic. The rule says nothing about breaches of court orders or deemed prejudice by years of delay.

[19] The defendant ought to be required to explain why this situation occurred and why it ought to be tolerated.

[20] Having said that, it is not news to anyone that we are living in extraordinary times. I can take judicial notice of the fact that the third wave of COVID is currently in full swing in Ontario. We are once again living in emergency conditions. As a caring society, we need to try to understand the extreme and unusual stresses that the lockdown puts on many of us. Not only are parents and children cooped up at home giving parents’ fulltime child care duties, but many parents are required to work remotely at the same time.

[21] Many parents now have two fulltime “jobs” to be carried out simultaneously.

[22] I am most reluctant to delay this trial again. While the 1984 Rules of Civil Procedure tend to treat timeliness and affordability as something distinct from the holy grail of “justice on the merits”, we know better today. The aphorism “[j]ustice delayed is justice denied” applies with full rigour to our civil justice system. The culture shift heralded by the Supreme Court of Canada in 2014 remains a largely unheard clarion call for recognition that efficiency and affordability are central elements of our ability to deliver civil justice on the merits.

[23] In my view, further delay threatens to rob the decision in this case of its justness.

[24] As it happens, another effect of the pandemic is that the civil jury sittings that were scheduled for Toronto in June, 2021 have been cancelled. This opens up some trial dates although there is no shortage of backlogged cases vying for them. This case gets priority as discussed above.

[25] In my view, the loss of a few more weeks to allow counsel to make arrangements to carry out their dual responsibilities will not cause much prejudice to the defendant. Although delay is prejudice in itself, practically speaking, a few more weeks cannot be said to have any significant downside effect that cannot be compensated.

[26] Ms. Whalen advises however that she has a three-week arbitration commitment for June. She asks that the trial be scheduled for the next available trial dates in September.

[27] In my view, the justification for adjourning the trial is to make accommodation for the family and child care responsibilities of counsel. That is a very different thing than counsel having competing client commitments. I have great empathy for the former and, in the circumstances of this case, little for the latter.’

[28] The plaintiff is entitled to have his case heard. The only reason it is not being heard is because it is important for the court to take into account the special needs of the bar, its officers, during this emergency time. The plaintiff has been waiting for more than a year for counsel for the defendant. The court has granted accommodations to counsel three times now. The court can justify doing so because it can prioritize the re-scheduling to minimize prejudice to the plaintiff. I fear what other steps the defendant might take to improve his case during a longer delay.

[29] If Ms. Whalen cannot find a way to prioritize this trial in her practice, then that will be an issue for her to discuss with her client.

[30] The trial currently scheduled for April 26, 2021 is adjourned to June, 2021 to a date to be set in Trial Scheduling Court in the next few weeks. This date is peremptory to the defendant.

[31] The plaintiff is entitled to any costs thrown away by wasted expenditures that will have to be repeated if any. The plaintiff may file by April 26, 2021 no more than three pages of costs submissions particularizing any

costs that it seeks. The defendant may respond with no more than three pages of submissions by May 3, 2021. Submissions shall be filed through the Civil Submissions Online portal and emailed to my assistant.

F.L. Myers J.

Date: April 20, 2021