Court File and Parties

COURT FILE NO.: CV-19-622271 DATE: 2021-06-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Erwin Sui, Plaintiff AND: Daniel Chitiz, Manoj Pundit, Sumesh Paul Pathak, and Risa Sokoloff

BEFORE: M. D. Sharma J.

COUNSEL: Angela Assuras, Counsel for the Plaintiff Hugh DesBrisay and Agatha Wong, Counsel for the Defendants

HEARD: June 11, 2021

Endorsement

[1] Plaintiff sought an adjournment of this virtual summary trial scheduled to begin on June 14, or in the alternative, a hybrid trial to allow certain witnesses to give evidence in person if this trial proceeds next week. The crux of the plaintiff’s argument was that (1) there are real issues of credibility, which could be better assessed by an in-person hearing, and (2) the volume of documents could more easily be managed through an in-person hearing. If this matter were adjourned to September, the restrictions preventing an in-person trial would likely be lifted.

[2] The Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, limits trial adjournments. At para 71, it says:

71. Once trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.

[3] In Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 361, the Court of Appeal was critical of a judge’s decision to adjourn a trial date that was to be heard 6 months thereafter. The judge adjourned the trial to allow a summary judgment motion to be heard. At para. 14, the Court held:

The purpose of the Practice Direction, in this respect, is precisely to avoid this sort of last-minute manoeuvring to the prejudice of other parties.

[4] In this case, the motion for adjournment is brought on the Friday before the Monday the trial is to be heard. Although I note an informal request for an adjournment was considered by Justice Darla Wilson yesterday, and it was rejected.

[5] While I appreciate that some counsel may be of the view that a video trial may not permit assessments of credibility to be made, there is an opposing view that a judge may be able to make a better assessment of credibility when a witness appears on screen less than a metre before the judge. In the experience of many judges, including myself, assessments of credibility can be made effectively using videoconference technology. In my view, this is not an exceptional or extenuating circumstance that can support an adjournment request.

[6] With respect to the volume of documents, it is my experience that accessing voluminous documents electronically can be much more efficient than using paper documents. I find this is not an exceptional or extenuating circumstance.

[7] Judges, lawyers and litigants are also bound by Chief Justice Morawetz’ Notice to the Profession, dated May 12, 2021, in which he directs that “all non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceedings in-person”.

[8] I am not satisfied that it is absolutely necessary for this civil, non-jury trial to be held in-person based on the reasons offered by the plaintiff. Accordingly, this matter shall be heard virtually, starting on Monday.

[9] The administration of justice in this province is and will continue to be under immense pressure due to the COVID pandemic. The administration of the Court has exercised herculean efforts to keep the court functioning throughout. Last minute adjournment requests of this nature, if granted, would leave holes in the court’s schedule that cannot be filled as quickly. As such, they would have ripple effects and negatively impact the timely delivery of justice in other cases waiting to be heard by this Court.

[10] For these reasons, the plaintiff’s motion is dismissed.

[11] Time was spent during the balance of today’s call discussing the organization of next week’s trial. I need not recount those particulars in detail, except to note:

• Defendant is to upload its chronology to CaseLines as soon as possible, and is to exercise best efforts to provide a printed copy with CaseLines page references to the Plaintiff’s counsel before the end of business today.

• To the extent it is not already uploaded to CaseLines, parties are asked to upload a brief summary of their case (2-3 pages) as well as critical legal authorities they intend to rely upon at trial so that I may be familiar with them before the trial begins on Monday.

• The matter will proceed as a summary trial with affidavits constituting examination in chief, followed by cross-examinations. Counsel may, if they choose to do so, conduct oral examination in chief for 10-15 minutes maximum to acclimatize witnesses before they are cross-examined.

M. D. Sharma J.

Date: June 11, 2021