Court File and Parties

COURT FILE NO.: CV-18-595029

DATE: 20210601

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: FINANCIAL HORIZONS INCORPORATED Plaintiff

AND:

WILLIAMSBURG, et al. Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: B. Cook, for the Plaintiff

J. Shneer, for the Defendant, Barnes

HEARD: May 31, 2021

ENDORSEMENT

[1] The Plaintiff brings this action claiming damages arising out of fraud, conspiracy and breach of contract. The Plaintiff terminated its contract with one of the Defendants, Sarah Barnes. The Plaintiff takes the position that the termination of the contract was for cause because Ms. Barnes failed to perform her non-monetary obligations in accordance with the terms of the agreement and for fraud, gross negligence or willful misconduct. Barnes alleges that the Plaintiff communicated its reasons for the termination to insurance brokers with whom Barnes had a business relationship. Barnes states that the communication to the insurance brokers was defamatory. She brings this Counterclaim in defamation against the Plaintiff.

[2] The Plaintiff brings this motion for summary judgment to dismiss the defamation Counterclaim brought by Barnes. The matter came before Justice Ramsey at CPC on April 20, 2021. She was not prepared to schedule the summary judgment motion at that time. She convened a case conference to determine whether summary judgment was appropriate. She directed the parties to address the questions raised by Brown, J.A. in Malik v. Attia, 2020 ONCA 787:

a. Demonstrate that dividing the determination of this case into several parts will prove cheaper to the parties;

b. Show how partial summary judgment will get the parties case in and out of the court system more quickly; and

c. Establish how partial summary judgment will not result in consistent findings: at para. 62.

[3] Counsel for the Plaintiff (Defendant by Counterclaim), argues that the issues involved in the main action and in the Counterclaim are separate and discrete. The Counterclaim is a standalone matter that can be dealt with independent of the main action. He argues that the determination of the defamation action would result in the remaining proceedings being less complicated and expensive. He also states that it is early in the proceeding and the motion can be timetabled to ensure there is no delay in the main action. Finally, he argues that there is no risk of inconsistent findings, because the two matters are separate and there are no factual issues which overlap.

[4] Counsel for the Defendant (Plaintiff by Counterclaim), argues that the Counterclaim is not discrete but is intertwined with the main action. The reason for the termination of the Barnes’ contract was the allegation of fraud, which is the subject matter of the main action. The communication of the allegation of fraud forms the basis for the Counterclaim. Counsel for the Defendant also argues that the defamation action has issues of credibility and disputed facts and is not appropriate for summary judgment: Baglow v. Smith 2012 ONCA 407.

[5] It is my view that the motion for summary judgment to dismiss the Counterclaim is partial summary judgment. The main action will continue with the same parties. A successful motion will not result in the Plaintiff being out of the case. The parties will be required to continue with the main action. I am satisfied that the cost of the proceeding with the main action will not be appreciably cheaper if the defamation issue is dismissed. Finally, and most importantly, the main action and the Counterclaim have factual issues in common and as a result there is a risk of inconsistent findings.

[6] I am not prepared to schedule the summary judgment motion at this time. This is without prejudice to the Plaintiff renewing the request for summary judgment if circumstances change following the documentary and oral discovery.

[7] Counsel for the Plaintiff and the Defendant, Barnes have agreed on a timetable for the steps in the litigation. The other parties to the action have not agreed to the timetable. Those parties were not in attendance on the case conference. I am not prepared to impose a timetable on parties who did not attend the case conference. The proposed timetable is as follows:

a. Affidavits of Documents exchanged by June 30, 2021;

b. Complete Examinations for Discovery by November 30, 2021;

c. Complete undertakings by February 25, 2022;

d. Motions arising out of the undertakings to be served by April 8, 2022;

e. Attend mediation by May 27, 2022; and

f. Action to be set down for trial by July 29, 2022.

[8] Should the parties require any assistance with respect to timetabling the action, a further case conference can be scheduled with me.

[9] I direct counsel for the Plaintiff to distribute this endorsement to the other parties to the action.

DATE: JUNE 1, 2021