COURT FILE NO.: CV-12-00452256

DATE: 20210601

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LCT INVESTMENT GROUP LTD. Plaintiff

AND:

BELSTAR REALTY and RAFIUDDIN Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: C. Raphael and D. Collett for the Plaintiff

A. Rafiuddin, self-represented

J. Martino, self-represented

HEARD: May 31, 2021

ENDORSEMENT

[1] The trial in this matter is scheduled to proceed before me, on June 14, 2021. I convened a trial management conference which took place yesterday.

[2] Ron Chapman is the counsel of record for the corporate Defendants. Mr. Chapman did not attend the trial management conference and failed to provide any reason for his non-attendance. Mr. Chapman has previously taken the position that there has been a breakdown in the relationship with his client and that he intends to bring a motion to be removed as solicitor of record. He did not bring the motion to be removed as solicitor of record. If and until he is removed as solicitor of record, Mr. Chapman continues to be counsel for the corporate Defendants. He had notice of the trial scheduling conference. His failure to attend and his failure to even advise the court that he could not be in attendance is concerning. It is even more concerning given the fact that Mr. Chapman initially took the position that he could not attend because he was required to attend a case conference with Justice Akbarali. Justice Akbarali rescheduled the case conference so Mr. Chapman could attend the trial management conference. I require Mr. Chapman to attend at the commencement of trial to provide an explanation for his failure to attend the trial management conference and to show cause why an order of costs ought not to be made personally against him.

[3] At the beginning of the trial management conference, Mr. Rafiuddin requested an adjournment of the trial. He stated that he cannot proceed to trial because he does not have a lawyer. He also stated that he has medical issues which make it impossible to attend trial. This is not the first time, Mr. Rafiuddin has requested an adjournment of the trial.

[4] This action was commenced in 2012. In February 2019 there was a scheduling attendance before Faieta, J. At that time, Mr. Rafiuddin raised medical issues and requested an adjournment. Faieta, J. rejected the request for an adjournment and stated that justice demanded that the matter proceed to trial. The trial was scheduled for January 2020. The pre-trial was conducted in November 2019. The trial was adjourned to November 2020. At a case conference before D. Wilson, J. on November 16, 2020, Mr. Rafiuddin requested a further adjournment of the trial. Wilson, J. ordered that the trial is to proceed on June 14, 2021 regardless of whether Mr. Rafiuddin has counsel. At the case conference on January 11, 2021, she ordered that the trial date was peremptory on Mr. Rafiuddin. Mr. Rafiuddin renewed his requests for an adjournment with the case management judge, Dunphy, J. and the pre-trial judge Stinson, J. They did not adjourn the trial.

[5] Mr. Rafiuddin brought a motion pursuant to R. 21 to strike the claims against him personally. The matter came before Myers, J. in Civil Practice Court on May 11, 2021. Myers, J. stated that it was too late to schedule a motion under R. 21. He noted that trying to bring a pleadings motion at this stage to derail a peremptory trial is an abuse of process. Myers, J. told Mr. Rafiuddin that he was not precluding him from moving to adjourn the trial to the trial judge. He noted however that in light of the substantial amount of time he has had to seek new counsel and that both Dunphy, J. and Wilson, J. have said the trial will proceed, he should be prepared to proceed to trial.

[6] I advised Mr. Rafiuddin that I was not prepared to entertain his request for an adjournment at the trial management conference. If he wishes to pursue an adjournment, it will be necessary for him to bring a formal motion on notice to the other parties. He will have to provide sworn evidence with respect to his medical issues and his attempts to retain counsel. I advised Mr. Rafiuddin that if he brings the motion, I am prepared to hear the motion on June 8, 2021. Mr. Rafiuddin stated that he may not be available for a cross-examination before June 8, 2021 and asked that the cross-examination be vive voce testimony on the return of the motion. Although vive voce evidence on a motion is not the preferred practice, I directed counsel for the Plaintiffs to be prepared to cross-examine Mr. Rafiuddin’s witnesses on the return of the motion.

[7] With respect to the trial management issues, counsel for the Plaintiff stated that they are preparing their book of documents. The documents will be finalized and provided to the Defendants by June 7, 2021. It is expected that there will be an issue with respect to authenticity. Any objections regarding authenticity are to be made by June 7, 2021. Counsel for the Plaintiff advised that they have delivered a Request to Admit. The time for responding has expired. I advised counsel that they should be prepared to prove the facts set out in the Request to Admit at trial.

[8] Counsel for the Plaintiff advised that an updated Trial Record has not been filed with the court. I asked that the updated Trial Record be filed on Caselines. I also asked that Counsel for the Plaintiff provide assistance to the Defendants if they have difficulty filing materials on Caselines.

[9] With respect to the witnesses, Plaintiff’s counsel advised that they intend to call several witnesses who are currently in China. Due to the time difference counsel requested that the trial start earlier in the day when those witnesses testify. I stated that I was prepared to start at 9 am on the days the witnesses testified. The Plaintiff’s counsel proposed the following schedule for their case:

a. Openings the first half of June 14, 2021;

b. Gary Tsang will testify on June 15, 2021;

c. Joun Tsang will testify on June 16, 2021;

d. Yong Liu followed by Victoria Bachlowa on June 17, 2021; and

e. Nin Cho followed by Max Cheng on June 18, 2021.

[10] Some of the witnesses will require an interpreter. Counsel for the Plaintiff will be making the arrangements for the interpreter. If the witnesses wish to swear on a holy book, they are to have the holy book with them.

[11] When I asked Mr. Rafiuddin about his witnesses, he stated that he will not be in attendance at trial on June 14, 2021 because of his health issues and the fact that he has no lawyer. I advised Mr. Rafiuddin that I am not prepared to deal with the adjournment request without a formal motion. He advised that he may have a significant number of witnesses. He stated that he has not determined their availability and expressed a concern that they will not attend the trial. I encouraged Mr. Rafiuddin to serve Summons to Witnesses on his witnesses to compel their attendance at trial. I also encouraged Mr. Rafiuddin to complete his book of documents and provide it to counsel for the Defendants by June 7, 2021.

[12] I direct counsel for the Plaintiff to provide a copy of this endorsement to the other parties to the action, and to Mr. Chapman.

DATE: JUNE 1, 2021