DATE: 20210604

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

TERRENCE CAVE

Plaintiff

AND:

ANAHIT HOVSEPYAN and GARNIK HOVSEPYAN

Defendants

BEFORE: A.A. SANFILIPPO J.

COUNSEL: Alan L. Rachlin and Michael Hoffman, for the Plaintiff

Bruce Chambers, for the Defendants

HEARD: June 4, 2021

TRIAL MANAGEMENT ENDORSEMENT

[1] The trial in this action is scheduled to commence on June 7, 2021 and continue for 11 days. Considering the public health requirements in Toronto Region caused by the Covid-19 pandemic, the trial will be conducted virtually using Zoom as the videoconference platform and CaseLines for on-line document management.

[2] I convened a Trial Management Conference on June 4, 2021 and based on the matters addressed, direct as follows:

(a) At the opening of trial, the parties shall be prepared to address the following:

(i) The electronic Trial Record, as uploaded to CaseLines.

(ii) Agreed Statement of Facts.

(iii) List of issues.

(iv) If possible, List of Authorities, with cases hyperlinked on points of law expected to arise during the trial. This may be updated during the trial.

(v) Any Bench Brief with aide memoires pertaining to expert reports.

(vi) The Plaintiff is at liberty to file written opening submissions to supplement his oral opening submissions. Likewise, for the Defendants but at the time that the Defendants choose to present their opening submissions.

(b) Counsel shall upload to CaseLines the Rule 50.08 Report to Trial Judge dated June 4, 2021, and this Trial Management Endorsement, so that they may be marked as letter exhibits at trial.

(c) The trial schedule will follow the allocation of time per witness as set out in the Rule 50.08 Report to Trial Judge dated June 4, 2021. The parties must be mindful of the time estimates for each witness as, so that the trial may be completed in the time that has been allocated (10 days for evidence and 1 day for closing submissions). The parties are expected to have their witnesses ready for video connection into the virtual courtroom, without delay.

(d) Each side shall designate a lead counsel for a stage in the trial, or for a witness. The lead counsel shall ensure that they have email addresses and telephone numbers for the witnesses they intend to call and shall ensure that the witness is available to join the virtual courtroom when called to testify.

(e) Each party shall ensure that all their witnesses have access to the technology necessary to testify virtually. Counsel shall provide their witnesses with a copy of the Superior Court of Justice “Best Practices and Etiquette for Remote Hearings” at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/remote-hearings/. Counsel shall review with their witnesses in advance the prohibitions on recording a Court hearing under s. 136 of the Courts of Justice Act.

(f) The parties are expected to be familiar with Zoom, including the screen sharing function, and have readily available any document intended to be shared on screen.

(g) The parties have been invited to CaseLines and have or will receive instructions about how to upload documents onto the CaseLines platform to be used during the trial. Documents will be presented to the Court and to the witnesses through CaseLines. The parties are expected to be familiar with the operation and use of CaseLines, including the search characteristics, and will be expected to refer to documents by their CaseLines page number. The following weblink addresses frequently asked questions in the use of CaseLines: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/faq-caselines/.

(h) The uploading of documents into the CaseLines folder does not constitute their filing into the Trial Record. Documents will be tendered to the Court through CaseLines and will enter the Trial Record only once admitted by the Court and marked by the Registrar, electronically.

(i) The marking of exhibits will be in accordance with the following process. The document to be tendered as an exhibit will be uploaded to CaseLines. If entered as an exhibit, the document will be identified based on its page number(s) on CaseLines, and then tagged with a CaseLines exhibit label. The Registrar will later affix an electronic exhibit stamp to the document for the purpose of its entry into the Trial Record. Counsel will be provided with an Exhibit List during trial. The Registrar will establish a folder on CaseLines for exhibits for use by counsel, but the exhibits forming the Trial Record will be those saved by the Registrar on the Court’s electronic directory.

(j) The parties are encouraged to continue with their collaborative development of a Joint Document Book for use at trial, which may be supplemented by other documents during the trial. Each party is responsible for ensuring that they have a searchable pdf version of any document that they intend to refer to during the trial, uploaded into CaseLines and ready for use at trial. The documents shall be clear and legible and will have been bookmarked and labelled in a manner that permits the prompt location and identification of the document.

(k) Regarding the Joint Document Book, the parties are directed to review the statements by the Court of Appeal in Girao v. Cunningham, 2020 ONCA 260, at paras. 21-35, and Bruno v. Dacosta, 2020 ONCA 602 at paras. 53-66, and be prepared to expressly state to the Court, at the opening of trial, their precise agreement with respect to the documents contained in the Joint Document Book, addressing the following questions:

(i) Are the documents, if they are not originals, admitted as true copies of the originals? Are they admissible without proof of the original documents?

(ii) Is all correspondence and are all other documents in the Joint Document Book admitted as having been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

(iii) Is the document admitted for the truth of its contents, or must the truth be separately established in the evidence at trial?

(iv) Are the parties able to introduce into evidence additional documents not mentioned in the Joint Document Book?

(v) Are there any documents in the Joint Documents Book that a party wishes to treat as exceptions to any general agreement?

(vi) Does any party object to a document in the Joint Documents Book?

(l) The parties shall exchange cost outlines, prior to the start of trial. The cost outlines shall not be provided to the Court until the argument of costs at the conclusion of the trial. The cost outlines may contain per diem estimates of the cost of anticipated trial days not yet incurred.

(m) Written closing submissions shall be required, in advance of the oral closing submissions, in accordance with a schedule that will be implemented during trial. Further to discussions at the Trial Management Conference, the tentative deadline for the delivery of written closing submissions is June 24, 2021.

[3] The parties are presumed to have in place the technical and technological hardware and software requirements necessary to commence this virtual trial on June 7, 2021 at 10:00 am. The parties are encouraged to test their video and audio connections prior to trial to ensure that there is sufficient connectivity and sound clarity for the purposes of the virtual trial.

[4] Counsel are not expected to gown for trial: Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, Re: Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020, s. C.2. Counsel are expected to dress in appropriate business attire, consistent with the solemnity and dignity of the trial process.

[5] Further procedural directions regarding the conduct of the trial will be provided at the opening of trial. I will adopt and rely on elements of the management of a virtual trial as set out in Rovi Guides Inc. v. Videotron Ltd., 2020 FC 637.

[6] In accordance with Rules 59.04(1), 77.07(6) and 1.04, this order is effective from the date that it is made and is enforceable without any need for entry and filing, and without the necessity of a formal order.

A.A. Sanfilippo J.

Date: June 4, 2021