Court File and Parties

DATE: 2021-06-07

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 7, 2021

ENDORSEMENT

[1] The trial in this action was scheduled to commence today, June 7, 2021. At the opening of trial, the Defendants requested an adjournment on the basis of the Plaintiff’s production, the day before trial, of a laptop computer and its contents. I granted the Defendants’ adjournment request, implemented a timetable and awarded the Defendants costs thrown away, on the basis of reasons to follow. These are those reasons.

A. Background

[2] This action was commenced by Statement of Claim issued on November 16, 2016, with a Jury Notice. The Defendants delivered their Statement of Defence, and Jury Notice, on June 5, 2017. The Plaintiff set the action down for trial on September 20, 2018. The trial in this action was scheduled for the civil jury sittings commencing June 1, 2020 and was adjourned due to the COVID-19 pandemic and re-scheduled to the May 31, 2021 civil jury sittings.

[3] In a Notice to Profession and Public Regarding Court Proceedings issued March 17, 2021, the Court continued the earlier suspension of civil jury trials and announced that new jury selection and jury trials would resume in Toronto Region on July 5, 2021, at the earliest. This resulted in the suspension of the May 31, 2021 civil jury sittings in Toronto.

[4] The Plaintiff brought a motion to strike the Defendants’ Jury Notice. By Endorsement issued April 30, 2021, Justice Chalmers granted the Plaintiff’s motion, struck the Defendants’ Jury Notice, and directed the counsel to contact the Civil Trial Coordinator to make arrangements for this action to proceed as a non-jury trial on May 31, 2021: Cave v. Hovsepyan, 2021 ONSC 3386.

[5] The trial in this action was scheduled to begin before me on June 7, 2021. On June 4, 2021, I convened a Trial Management Conference and issued directions for the conduct of a virtual, non-jury trial commencing at 10:00 am on June 7, 2021: Cave v. Hovsepyan, 2021 ONSC 4126.

B. The Parties’ Positions Regarding an Adjournment

[6] At the opening of trial, the Defendants requested an adjournment on the basis of the Plaintiff’s late production of material documents. The Plaintiff opposed the adjournment request.

[7] The Defendants submitted that the Plaintiff has advanced a claim for past and future income loss of $1.8 million that is based on the Plaintiff’s former employment with Freightcom Inc. The Defendants stated that until the day before trial, the Plaintiff had produced only one document in support of his claim for past and future income loss: a cancelled cheque.

[8] On Sunday, June 6, 2021, the day before the commencement of trial, the Plaintiff’s counsel notified the Defendants’ counsel that the Plaintiff has a laptop computer that was used for his work and contains files that had not been previously identified or produced. The Plaintiff’s counsel submitted that his client told him of the laptop computer for the first time on June 5, 2021. The Plaintiff thought that it was not functional but engaged a computer technician to determine whether the laptop computer could be repaired and found that documents were capable of being downloaded.

[9] In particular, the Plaintiff’s computer technician was able to extract 2 gigabytes of data, containing 14,133 files in 2,172 folders (the “Computer Data”). The Plaintiff transferred the Computer Data onto a USB key. On Sunday, June 6, 2021, the Plaintiff’s counsel obtained the USB key from his client and uploaded the Computer Data to an on-line shared portal. He then sent the Defendants’ counsel a link to the on-line shared folder.

[10] The Defendants’ counsel was not able to open the on-line shared folder, upon its receipt late on Sunday, June 6, 2021, and was not assisted by certain screen shots sent by the Plaintiff’s counsel. The Defendants did not know, at the time of the opening of trial, the nature or scope of the 14,133 files contained in the 2,172 folders of Computer Data. The Plaintiff submitted that many of the 14,133 files were operating system files, and not documents, but was not able to quantify how many documents were contained amongst the Computer Data. The Defendants do not require the operating system files, only the documents in the Computer Data that are material to the issues in this action. The Plaintiff’s counsel stated that he saw one ‘substantively important document’, an Excel spreadsheet that contains work information, and stated that there were other work documents within the Computer Data but had not yet assembled or listed them.

[11] The Defendants requested an opportunity to receive and review the newly disclosed material and conduct an additional examination of the Plaintiff.

C. Analysis

[12] There was no mention, at the Trial Management Conference of Friday, June 4, 2021, of any issue pertaining to additional documentary production by the Plaintiff. However, I accept the Plaintiff’s counsel’s explanation that he did not know of the existence of the Plaintiff’s work laptop until Saturday, June 5, 2021. The parties agreed that the past and future loss of income claim is a central issue in this action, and thereby in this trial, and that the documents pertinent to this claim expanded, the day before trial, from a single document to many more.

[13] The Plaintiff did not contest, in my view correctly, that this laptop computer and its material documents ought to have been listed in the Plaintiff’s affidavit of documents and produced for inspection during the 5-year procedural history of this action. The Plaintiff also did not contest, again in my view correctly, that the Defendants have a right to inspection of these materials now, and to conduct further examination for discovery of the Plaintiff. On these grounds, the Defendants were entitled to production, inspection and examination on the laptop computer and the material documents in the Computer Data. The argument on the Defendants’ adjournment request focused on whether these rights could be reasonably and fairly exercised within the trial schedule, or whether the trial had to be adjourned.

[14] The Plaintiff submitted that the Defendants’ rights to production, inspection and examination of the laptop computer and material documents could be accommodated by holding down the trial for a half day - or a day at most - to produce the material to the Defendants and to afford the Defendants a further examination of the Plaintiff. The Defendants submitted that this was inordinately restrictive, far more than would have been the case if the laptop computer and material documents had been properly produced, and submitted that fairness required that the trial be adjourned so that the production of these materials could take place in a fair, orderly and reasonable manner.

[15] I accepted the Defendants’ submission for the following reasons. First, it is well-founded on the Defendants’ procedural right to documentary production, inspection and examination, as set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and particularly Rules 30.02, 30.03 30.04, 30.06, 30.07 and 30.08. Second, as a matter of trial fairness, the Defendants are entitled to have the new productions as part of their preparation for trial, particularly where the additional documentary production has the potential to outweigh the current documentary production on a central issue. Third, the Defendants had no role in this late production issue and were otherwise ready for trial, and while the Plaintiff’s counsel explained the last-minute disclosure, this does not excuse the Plaintiff’s lack of compliance with his documentary disclosure obligations.

[16] In the exercise of my discretion, I concluded that it was in the interests of justice and trial fairness that this trial be adjourned to allow the Defendants’ the exercise of their rights of production, inspection and examination of the laptop computer and material documents.

[17] I direct that the parties speak to the re-scheduling of this trial at the Special Trial Scheduling Court of June 21, 2021. I am not seized of the trial in this action.

[18] In order that the parties can be in a position to make meaningful submissions on trial scheduling on June 21, 2021, they must complete the disclosure, inspection and examination on the additional productions prior to that day. They have time in which to do so as they had days booked for this trial. After considering submissions from counsel on scheduling, I directed a timetable for the production by the Plaintiff of a further and better affidavit of documents, the production of the additional materials for inspection and the further examination for discovery of the Plaintiff, all to be completed by June 21, 2021.

[19] Last, I will turn to the issue of costs of the adjournment. The Defendants submitted that they were entitled to an award of costs thrown away for the inefficiency resulting from the necessity to adjourn the trial. The Defendants had not filed material that would allow for a quantification of the amount of any such costs, or to establish the steps that they say were wasted. The Plaintiff did not deny that the Defendants were entitled to an award of costs thrown away, but submitted that the trial judge would be in the best position to determine the steps in trial preparation that had been wasted, and to fix the amount of any such costs. The Plaintiff also emphasized that an award of costs against the Plaintiff payable before trial could impact his ability to proceed, and thereby his access to justice, considering his ongoing claim for loss of income.

[20] The Plaintiff’s non-compliance with his production obligations caused the necessity for the adjournment of the trial and the resultant costs thrown away. I conclude that the Defendants are entitled to an award of costs thrown away, payable by the Plaintiff in an amount and at a time to be determined by the trial judge.

D. Disposition

[21] I order as follows:

(a) The trial in this action is adjourned to a date to be scheduled by the Court on June 21, 2021.

(b) The counsel for the parties shall speak to the scheduling of the trial in this action at the Special Trial Scheduling Court of June 21, 2021.

(c) The Plaintiff shall, by end of day on June 7, 2021, deliver to the Defendants a USB memory key containing the Computer Data that has been downloaded from the Plaintiff’s laptop computer and which was uploaded to the shared on-line folder.

(d) The Plaintiff shall, from June 9, 2021 at 5:00 pm onward, make the Plaintiff’s laptop computer available for inspection by the Defendants, or their technology consultant.

(e) The Plaintiff shall, by June 11, 2021 at 1:00 pm, deliver to the Defendants a further and better affidavit of documents.

(f) The Plaintiff shall, on June 17, 2021, be produced for a further examination for discovery on the newly produced material.

(g) The Defendants are awarded costs thrown away resulting from this adjournment of the trial, payable by the Plaintiff in an amount and at a time to be determined by the trial judge.

(h) I am not seized of the trial in this action.

[22] 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 7, 2021