Court File and Parties

COURT FILE NO.: CV-17-569102

DATE: 20210525

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Tanya Rebello, Plaintiff -and- Her Majesty the Queen in the Right of the Province of Ontario et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Ananthan Sinnadurai, for the moving party defendants Tanya Rebello, representing herself

READ: May 25, 2021

ENDORSEMENT

Background

[1] The Province moves to assign this action and two others to case management under Rule 77. The motion has been delegated to me for hearing by Acting Regional Senior Justice MF Brown.

[2] This endorsement applies to the request for case management of this action and the following two actions:

Rebello v. Attorney General of Ontario et al. (CV-19-618436); and

Rebello v. Her Majesty the Queen in right of Ontario (CV-19-629849)

[3] Counsel for the government made the request by letter dated May 3, 2021. In her responding letter, also dated May 3, 2021, Ms. Rebello raised a preliminary concern that Mr. Sinnadurai is not counsel of record for the defendants in the three actions. Ms. Rebello submits that Ms. Yousefian is the lawyer of record and only she is entitled to represent the defendants in these actions.

[4] Under s. 5 (h) of the Ministry of the Attorney General Act, RSO 1990, c M.17 the government, whether sued in the name of Her Majesty the Queen in right of Ontario or through a Minister of the Crown, is represented before the court by the Attorney General of Ontario. The Minister, through the Ministry, is the lawyer of record. Any lawyer authorized by the Ministry of the Attorney General may appear on the Minister’s behalf. This is no different than how any private law firm that is lawyer of record for a party can be represented by any lawyer authorized by the firm to do so.

[5] Therefore, I find that Mr. Sinnadurai is entitled to be heard on behalf of the defendants on this motion.

[6] On May 12, 2021, the RSJ’s office advised the parties that this motion had been delegated to me. On May 13, 2021, Ms. Rebello told the Acting RSJ that she objected to me hearing the motion. By letter dated May 13, 2021, Acting RSJ Brown advised Ms. Rebello that:

…the appropriate manner of dealing with these concerns is to raise those issues with Justice Myers directly, pursuant to the rules of procedure of the court, with notice to the other parties in the proceedings.

[7] Later that day, Ms. Rebello asked for the email address of my Judicial Assistant so she could write to me. The RSJ’s office advised her that writing to a judge is not appropriate under Rule 1.09 of the Rules of Civil Procedure. Rather, if she wished to make a motion in connection with the proposed hearing of the request for case management, she should do so formally and on notice to the other parties.

[8] As of the close of business on May 21, 2021 no motion or request to schedule a motion had been received from Ms. Rebello under Part “C” of the Notice to Profession – Toronto, Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic, effective April 27, 2021.

The Status of the Actions

[9] None of the three actions has advanced beyond pleadings as yet.

[10] The government says it intends to bring a motion for summary judgment in this action.

[11] The government says it intends to bring a motion to strike action No. CV-19-00618436.

[12] Ms. Rebello has brought a motion returnable before a Case Management Master for an order to join these two proceedings. The parties agree that there is a common fact base in both actions. Ms. Rebello asks to amend the pleadings and have the court impose a timetable for common discoveries and then a common trial (or one following the other) for these two actions.

[13] The government has brought a motion to strike Ms. Rebello’s third action - No. CV-19-629849. That motion is awaiting scheduling of a hearing. Ms. Rebello writes that she intends to abandon this action and that she made this known to the government some time ago.

[14] Given Ms. Rebello’s clear statement, I deem action CV-19-629849 abandoned. I make no determination of whether the abandonment is without prejudice to Ms. Rebello’s right to commence a further claim on the same causes of action. My order is also without prejudice to a subsequent determination of any cost consequences of the abandonment.

[15] There is no ongoing need for case management of the abandoned action.

Positions of the Parties

[16] Ms. Rebello says that case management is not required. She just wants to government to produce its documents and get on with oral examinations for discovery in the remaining two common actions.

[17] For its part, the government asserts that its efforts to schedule its motions to end the actions have been thwarted by Ms. Rebello requesting to bring other motions. Those motions have either been abandoned or been unsuccessful.

[18] The government seeks case management because the conduct of the plaintiff has delayed the actions. They have a common, self-represented plaintiff, and common facts.

[19] The government submits that its,

…efforts to bring motions to strike and/or for summary judgment in relation to these proceedings have not moved forward because the plaintiff maintains that Ontario is obligated to participate in documentary and oral discoveries and is not entitled to bring motions at this time.

[20] Of greatest significance, the government submits that,

it is anticipated that significant involvement will be required from the Court with respect to the scheduling of Ontario's motions to strike and for summary judgment and the adjudication of interim disputes that are anticipated before they are heard.

Rule 77 Analysis

[21] Rule 77.05 (4) provides the following criteria for determining whether an action should be assigned to case management:

(4) In considering whether to assign a proceeding for case management, the regional senior judge, other judge or case management master shall have regard to all the relevant circumstances, including any or all of the following:

1. The purpose set out in subrule 77.01 (1).

2. The complexity of the issues of fact or law.

3. The importance to the public of the issues of fact or law.

4. The number and type of parties or prospective parties, and whether they are represented.

5. The number of proceedings involving the same or similar parties or causes of action.

6. The amount of intervention by the court that the proceeding is likely to require.

7. The time required for discovery, if applicable, and for preparation for trial or hearing.

8. In the case of an action, the number of expert witnesses and other witnesses.

9. The time required for the trial or hearing.

10. Whether there has been substantial delay in the conduct of the proceeding.

[22] The issues in the two remaining actions are not factually or legally complex.

[23] The issues of fact and law have no public importance extending beyond the impact on the parties themselves.

[24] There are effectively only two parties in interest.

[25] There is no indication that discovery or trial will take an unusual amount of time or that this will be a case involving an unusual number of expert witnesses (if any).

[26] The only issues requiring some consideration are that the actions have proceeded slowly, allegedly due to acts of Ms. Rebello, and that further motion practice can be expected.

[27] The tension between a defendant seeking summary resolution of two actions concerning the same subject matter and the plaintiff’s desire to combine the actions and move forward with written and oral discovery is the normal stuff of Civil Practice Court.

[28] Every week in Civil Practice Court, the court hears numerous requests to schedule motions for summary judgment. The plaintiffs often submit that they should be entitled to documentary and/or oral discovery before the motions are scheduled.

[29] The Supreme Court of Canada invited this very consideration to be brought by way of a motion for directions in Hryniak v Mauldin, 21014 SCC 7 at paras. 69 to 73. Rules 50.13 (1) and (6) provide a process for directions to be obtained by a case conference rather than a full motion.

[30] Moreover, this is the very type of issue to be raised in Civil Practice Court under the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, effective January 11, 2021.

[31] This is the type of “light touch case management”, involving the efficient, affordable scheduling of interlocutory proceedings, for which CPC was created.

[32] The Practice Direction describes the purposes of CPC as follows:

Part I. Applications and Motions

A. Civil Practice Court

1. Civil Practice Court (“CPC”) has been instituted in the Toronto region. It replaces the former Motions Scheduling Court. It serves the following purposes:

a. To curtail the motions culture in Toronto and to ensure that motions and applications that are ready to proceed can be heard on a timely basis.

b. To permit the CPC judge to identify cases, at any stage, which require a degree of case management. Case management, most typically, will only be invoked in complex cases or where long motions are involved.

c. To assist in the orderly hearing of long motions, long applications, and any summary judgment motion. Parties will be encouraged to submit agreed upon timetables, and where necessary, case conferences will be scheduled in advance. The CPC judge will consider the option of directing long motions to the trial list.

d. To create a judicial mechanism whereby the CPC judge can assign those cases in need of the courts intervention before other available judges.

[33] The government says that its efforts to get its motions scheduled have been unsuccessful to date. I presume that judges at CPC or in case conferences have determined that other proceedings should come first. But there is currently only one issue raised – whether summary judgment and a motion to strike should proceed before discovery. This is CPC standard fare.

[34] Moreover, no party can block a CPC appointment from being made. The parties are required to cooperate on scheduling. But if the party opposite resists, parties are free to make a unilateral appointment in CPC or for a case conference. That is not to say that the appointment will not be adjourned. But if that occurs, a judge will have determined that doing so is appropriate.

[35] If the government is concerned about refusals motions during the summary judgment motion process (if it proceeds), that too can be dealt with at Civil Practice Court by asking the judge to apply Rule 34.12 to any cross-examinations. The use of that procedure eliminates refusals motions except if sufficiently egregious abuse is alleged to justify a party walking out and moving under Rule 34.14.

[36] Not every case is appropriate for case management. We do not have enough judges nor the computer resources to schedule, track, and case manage cases broadly yet. Each case assigned to case management under Rule 77 is dealt with manually, exceptionally, and largely on the judge’s or the Case Management Master’s own time. The court must be careful therefore to conserve resources for cases that are likely to benefit from case management.

[37] The defendant complains about the plaintiff’s conduct and says she has stalled the efficient resolution of the actions. Case management can be used to try to limit a party who has a proclivity for inappropriate procedural conduct. The risk however, is that it can create even more opportunities for further motion practice, unhelpful communication with the court, and delay. Informal and less expensive access to a judge does not lead all parties to behave reasonably or to make the kinds of cooperative procedural compromises required to help get a matter resolved quickly and cheaply. In some cases, an increase in motions, including motions for recusal, appeals or motions for leave to appeal, and all manner of vexatious mischief can make the cure of case management worse than the disease it is designed to treat. It is often better in cases like those to just press on single-mindedly on a straight line path to a motion for judgment or, early, narrow discovery and trial.

[38] I have no idea whether the defendants’ proposed motions should be scheduled in these cases now or after some discovery is provided. But I am quite content that the question is one for CPC and possibly a case conference rather than full-on case management.

F.L. Myers J.

Release Date: May 25, 2021