COURT FILE NO.: CV-18-5500-00
DATE: 2021 06 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zubair Afzal, Plaintiff
AND:
Dharmista Patel and Brijesh Patel, Defendants
BEFORE: Doi J.
COUNSEL: David Winer, for the moving Defendant, Brijesh Patel Jasdeep Bal, for the responding Plaintiff, Zubair Afzal
Lawrence Wallach and Shaun Rotman, for the Defendant, Dharmista Patel
HEARD: June 25, 2021
ENDORSEMENT
Overview
[1] On this motion, the Defendant, Brijesh Patel (“Brijesh”)[^1], seeks an order: a) for leave to file his affidavit sworn May 2, 2021 in response to the motion brought by the Plaintiff, Zubair Afzal (“Zubair”), for summary judgment; b) to cross-examine on the affidavits provided in support of the summary judgment motion;[^2] and c) to vary the timetable ordered by Justice McSweeney on January 19, 2021 for the summary judgment motion and other related motions.[^3]
[2] After hearing submissions from the parties, I granted the motion with reasons to follow. The following are my reasons.
Litigation History
[3] The underlying action arises from alleged breaches of two (2) agreements of purchase and sale for residential properties located on Weston Road (the “Weston Property”) and Wolfe Court (the “Wolfe Property”) in Vaughan, respectively. Brijesh is the sole registered owner of the Weston Property. The Defendant, Dharmista Patel (“Dharmista”), is Brijesh’s mother and was his
power of attorney for the Weston Property. Dharmista is also the sole registered owner of the Wolfe Property. Zubair, the Plaintiff, is claiming specific performance to require the properties to be sold under the alleged agreements of purchase and sale.
[4] On December 24, 2018, Zubair commenced this action. On April 23, 2019, Justice Dawson granted Zubair’s motion without notice for leave to issue a certificate of pending litigation (“CPL”) for each property.
[5] On June 14, 2019, Dharmista served a notice of motion to discharge the CPL’s.
[6] Subsequently, Zubair brought a motion for summary judgment. Dharmista then brought a cross-motion for summary judgement and, in the alternative, a motion to vacate the CPL’s.
[7] Thereafter, Zubair moved for directions to address, among other things, the scheduling of the motions. On January 19, 2021, the motion for directions came before McSweeney J. who ordered the summary judgment motions and the CPL discharge motion to be heard together. In addition, McSweeney J. directed a consent timetable for the motions and made it peremptory on all of the parties. Zubair and Dharmista served their affidavits in accordance with the timetable.
[8] Under the timetable, Brijesh’s affidavit was due by March 31, 2021. Initially, he opted to not serve an affidavit. On April 12, 2021, Zubair advised that he wished to examine Brijesh under Rule 39.03.
[9] The parties agreed to conduct examinations from May 3, 2021 to May 17, 2021, in keeping with the timetable.
[10] While preparing for the examinations, and after reflecting on his position, Brijesh decided to swear an affidavit on Sunday, May 2, 2021, which he served that afternoon. His affidavit, which is 2 ½ pages and 9 paragraphs in length, was served outside of the timetable order. Zubair objected to Brijesh’s late service of the affidavit. Examinations began the following day.
[11] On May 3, 2021, Zubair affirmed his objection to Brijesh’s late affidavit. Zubair also objected to Brijesh’s right to cross-examine witnesses by arguing that his failure to serve a timely affidavit had extinguished his ability to cross-examine. Zubair indicated that he would end the
examinations if Brijesh tried to cross-examine his affiants. In addition, Zubair did not proceed with his examination of Brijesh, which had been scheduled for May 12, 2021.
[12] In light of Zubair’s position, Brijesh contacted the court on May 3, 2021 and obtained the June 25, 2021 date for this motion, which was the first available return date. On May 7, 2021, he delivered his materials for the motion. He later delivered his amended statement of defence, crossclaim and counterclaim.[^4]
Issues
[13] The following issues are before the court on this motion:
a. Should Brijesh be granted leave to file his affidavit sworn May 2, 2021 after the deadline for doing so under the peremptory timetable ordered by McSweeney J. on January 19, 2021 had expired? and
b. Should leave not be granted for Brijesh to file his affidavit, should he nevertheless have been allowed to cross-examine Zubair and his witnesses on their affidavits in support of his motion for summary judgment?
Analysis
a. Brijesh Should be Allowed to File his Affidavit
[14] For the reasons that follow, I am satisfied that Brijesh should be allowed to file his affidavit.
[15] As Justice Gray aptly noted in Bank of Montreal v. Lewis, 2010 ONSC 3256 at para 18, the court must weigh competing factors in deciding requests to allow the late delivery of materials:
The Court is often confronted with conflicting interests, between the need to maintain control over litigation and the orderly processing of cases, and the need to ensure that litigants have a fair opportunity to be heard. In many, if not most, cases, the Court will lean towards the latter objective, on the understanding that in most cases it is preferable to have cases heard on their merits rather than to insist on procedural perfection.
However, there comes a point when the need to insist on procedural rules and orders must prevail. Otherwise, the system will break down. [Emphasis added]
[16] When considering the countervailing policies of resolving disputes on their merits but in a timely and efficient way that instills public confidence in the administration of justice, the court’s
preference always favours resolving disputes on their merits over terminating rights on procedural grounds: H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 at para 26; London Eco-Roof Manufacturing Inc. v. South River Developments Ltd., 2019 ONSC 1183 at paras 21 and 24; Richardson v. Cuddy, 2017 ONSC 3186 (Master) at para 5. Commenting on the need to avoid overly formalistic applications of prescribed timelines, Sharpe J.A. noted in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para 19:
[P]rocedural rules are the servants of justice not its master … We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. [T]he Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute. [Citations omitted and emphasis added]
[17] In Jourdain v. Ontario, 2008 CanLII 22130 (ONSC), Justice Platana considered a motion by the plaintiffs for leave to rely on their amended notice of motion and amended factum that were filed after a peremptory delivery date ordered on consent had expired. In granting the motion, Platana J. applied the following 2-part analysis: i) was there a breach of the order? and ii) if yes, then can the breach be rectified: Jourdain at paras 16 and 21-22. Under the second arm of his analysis, Platana J. applied (at paras 12 and 26) the reasoning of the English Court of Appeal in Hytec Information Systems Ltd. v. Coventry City Council, [1996] EWJ No 3603 (CA (Civ. Div.)) at para 37, [1997] 1 WLR 1666 at 1672-1673, which set out the following considerations in weighing a failure to comply with a peremptory order of a court:
An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order;
Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed;
This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure;
It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy;
A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order;
The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice;
The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.
See also Im v. BMO Investorline Inc., 2019 ONSC 1663 (Master) at para 5; Gustafson v. Johnson, 2021 ONSC 536 at paras 60-61. A party seeking to be excused from complying with a timetable order must provide an appropriate explanation to warrant an excusal: Jourdain at para 17; Szegedi Estate v. Horvath, [2005] OJ No 3248 (SCJ) at para 17; Mernick Construction Co. v. Gerstein, [2008] OJ No 4290 (Master) at para 41. Courts should consider the importance of a peremptory order in progressing a matter and allowing litigants to bring their issues to court in timely fashion: Jourdain at para 23; Szegedi Estate at para 16.
[18] In Conway (Re), 2016 ONCA 918, the Court of Appeal for Ontario considered an appeal from a refusal by the Ontario Review Board to adjourn a hearing to allow the appellant to engage counsel solely because the hearing date was marked peremptory. Writing for the Court of Appeal, Laskin J.A. found that the refusal to adjourn for that reason alone constituted an error in principle and held (at para 24) that the Board was obliged to exercise its discretion in deciding the request to adjourn by factoring the relevant considerations:
Although the dictionary definition of peremptory - irreversible, binding, conclusive - suggests that a hearing marked “peremptory” must proceed, our court, sensibly, has held otherwise. In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 43, Weiler J.A. wrote:
One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice. [Footnotes omitted from original, and emphasis added]
[19] Laskin J.A. then offered a set of non-exhaustive factors to consider in deciding whether to grant or refuse a request to adjourn a peremptory hearing: Conway at para 26. In my view, the following Conway factors align with those stated in Hytec and are helpful to consider on a motion to relieve a failure to comply with a peremptory order: a) whether prior peremptory designations were made; b) the reason for the requested relief; c) the consequences and the potential prejudice to the parties; and d) whether the requestor is trying to manipulate or exploit the situation.
[20] There is no dispute that Brijesh’s affidavit was served outside of the allowable period under the peremptory timetable order that McSweeney J. made on January 19, 2021.
[21] A peremptory order is normally made as a last chance to permit a party to remedy a prior default: Jourdain at para 12; Im at para 5. In this case, however, Brijesh had not breached any prior deadlines or orders. No earlier peremptory order was made in this proceeding. I would add that Zubair did not properly serve Brijesh with his motion materials for more than 1 ½ years after the CPL order was granted, and did not serve his statement of claim for over 2 years after it was issued which led McSweeney J. to validate service on the January 19, 2021 motion for directions.
[22] The peremptory timetable ordered by McSweeney J. was not made to rectify a prior default or delay caused by Brijesh. Instead, the timetable was made peremptory to avoid procedural disagreements between counsel so that the summary judgment and CPL discharge motions could return on June 30, 2021 with minimal difficulty.[^5] McSweeney J. directed that the timetable could not be amended on consent but only by court order, which clearly contemplated that a party could move to vary the timetable, precisely as Brijesh did on this motion.[^6]
[23] Given the particular facts of this case, I am satisfied that the court’s preference to hear the case on its merits weighs strongly in favour of allowing Brijesh to file his affidavit. In deciding whether to excuse a failure to comply with a peremptory deadline and allow late materials to be filed, the court must judicially exercise its discretion to make an order that is just in the circumstances: Jourdain at para 12; Hytec at pp. 1672-1673; Im at para 4. In this case, Brijesh was not previously in default of a timetabling or other order when he sought to deliver his late affidavit. Moreover, the irregularities related to the late delivery of materials are not one-sided which, in my view, would make it inequitable to disallow Brijesh’s affidavit in this case. The affidavit that he
seeks to file contains relevant information, tracks his pleading, is not unduly lengthy, and would not, in my view, cause any unfair prejudice to Zubair.[^7]
[24] Counsel for Brijesh, Mr. Shastri, candidly states in his supporting affidavit for this motion that his client initially decided to not file materials in response to Zubair’s motion for summary judgement. However, in preparing for cross-examinations, Brijesh changed his mind and decided to rely on a short responding affidavit. From the record and submissions on this motion, I accept that Brijesh made these decisions by relying on advice from Mr. Shastri, who apparently began reviewing the materials about a week before examinations were to start.
[25] In forceful submissions, Zubair invited the court to infer that Brijesh served a late affidavit in an effort to manipulate or disrupt the proceedings to gain a litigation advantage. However, from my review of the record, I am satisfied that Brijesh’s decision to serve his affidavit was made after he reconsidered his approach or strategy for responding to Zubair’s summary judgment motion based on advice from his counsel. In the circumstances, I accept that Brijesh has given a reasonable and sufficient explanation for his decision to serve his affidavit: Jourdain at para 17.
[26] Although concise, Brijesh’s affidavit provides relevant information. I accept that service of his affidavit was untimely and that its late delivery disrupted opposing counsel’s preparations on the eve of cross-examinations. However, I am not persuaded that Brijesh or his counsel acted nefariously or with an intention to manipulate or abuse the process: Hytec at p. 1673; Conway at para 26. To the extent that his counsel’s conduct is at issue, I accept that, “the sins of the solicitor should not be visited on the client” and that this conduct, without more, should not prevent Brijesh from using his affidavit to seek justice: Jourdain at para 29(6); Fuller at para 27.
[27] In my view, the effect of late service of Brijesh’s affidavit may be tempered by providing Zubair with a reasonable opportunity to deliver reply materials, should any be needed, followed by an opportunity to cross-examine Brijesh under a revised timetable, as set out below, which was made with input from counsel. I acknowledge the public interest in controlling litigation to allow matters to progress in timely and orderly fashion. However, in the circumstances of this case, I find that the interests of justice lean heavily towards allowing Brijesh to use his affidavit in order to have a fulsome and complete record that best allows the disputed issues to be determined on their merits by the court.
b. Brijesh’s Counsel was Allowed to Cross-Examine
[28] Given my decision that Brijesh should be allowed to deliver his affidavit in response to the motion for summary judgment brought by Zubair, I am satisfied that Brijesh should be allowed to cross-examine Zubair and his affiants on their affidavits under Rule 39.02(1) which states:
39.02(1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross- examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
[29] That said, I shall briefly address Brijesh’s alternate submission on this motion, namely that he was entitled to cross-examine Zubair and his witnesses irrespective of whether or not he had delivered a responding affidavit to the motion for summary judgment. As set out earlier, Zubair took the position that Brijesh had no affidavit in his record and therefore had not met a condition precedent under Rule 39.02(1) to his right to cross-examine.
[30] For the reasons that follow, I find that Brijesh was not required to deliver an affidavit in order to exercise his right to cross-examine Zubair and his affiants who swore affidavits in support of the motion for summary judgment.
[31] Where an affidavit is provided in support of a motion or application, the general rule is that the responding party has the right to cross-examine on the affidavit: Canada (Attorney General) v. Mennes, 2014 ONCA 690 at para 26. Rule 39.02 codifies this by allowing an adverse party to cross-examine a deponent on their affidavit for a motion or application: Ontario v. Rothmans Inc., 2011 ONSC 2504 at paras 141 and 143, leave to appeal denied 2011 ONSC 3685 (Div Ct). To control its own process, the court may exercise its discretion to prevent or limit cross-examinations in the interests of justice: Mennes at para 27; Clayton v. Clayton, 2020 ONSC 7592 at para 48.
[32] Rule 39.02 requires an examining party to serve every affidavit on which it intends to rely before cross-examining the deponent of an affidavit that is served by an adverse party on a motion or application. This measure imports fairness and economy to the process for compiling evidence: Clublink v. Oakville, 2018 ONSC 5957 at para 3; reversed on other grounds 2019 ONCA 827; Catalyst Fund Ltd. v IMAX Corp, 2008 CanLII 8778, [2008] OJ No 873, at para 14. Importantly, Rule 39.02 contains no requirement for the examining party to serve an affidavit in order to exercise its right to cross-
examine. Courts have recognized that a party may cross-examine under Rule 30.02(1) without first serving an affidavit: Powell v. Shirley, 2016 ONSC 3577 at para 15; Avenue Structures Inc. v. Pacific Empire Development Inc., [2001] OJ No 1320 (Master) at para 33.
[33] To support his objection to Brijesh’s ability to cross-examine, Zubair relies on Royal Trust Corp. of Canada v. Lepofsky, [1998] OJ No 1425 (Gen Div) at para 7 for the notion that a party must serve an affidavit before its right to cross-examine is engaged. Royal Trust involved an estate dispute in which a moving party sought to have a beneficiary reattend for cross-examination. The moving party filed an application and a motion record with some correspondence, but had not filed an affidavit. Relying on Rule 39.02, the moving party claimed an entitlement to cross-examine based on his adverse interest to the beneficiary. The court held that the moving party did not fulfil a condition precedent to cross-examine by not having filed an affidavit: Royal Trust at paras 6-7. However, in deciding the motion, the court went on to state that simple justice called for the moving party to serve the beneficiary with an affidavit, “setting out with precision the basis for the relief claimed so that the rights conferred in cross-examination could be exercised by both parties”: Royal Trust at para 8. The court in Royal Trust also expressed its disapproval of the moving party’s failure to provide adequate particulars of his claim for relief against the adverse beneficiary, and by his effort to rely instead on a collection of correspondence in his motion record. It seems to follow that the court in Royal Trust exercised its discretion to avoid unfairness by disallowing the moving party from cross-examining the beneficiary due to the inadequate notice of his pending claim against the beneficiary: Mennes at para 27; Clayton at para 48. In light of this, I am not persuaded that Royal Trust should be regarded as clear authority for the proposition that Rule 30.02(1) requires a party to serve an affidavit before it may cross-examine.
[34] Based on the foregoing, I am satisfied that Brijesh was not required to serve an affidavit in order to cross-examine under Rule 30.02(1): Mennes at para 26; Rothmans at para 141; Powell at para 15; Avenue at para 33.
Outcome
[35] Accordingly, Brijesh’s motion is granted. In light of this, the timetable in McSweeney J.’s Endorsement dated January 19, 2021 is varied, nunc pro tunc, to permit Brijesh to file his affidavit, to allow Zubair to file reply affidavits, and to permit cross-examinations, as set out below. I add
my view that Zubair’s motion for summary judgment, Dharmista’s cross-motion for summary judgment, and Dharmista’s CPL discharge motion, should be heard together. The motions raise common issues related to the failed sale transactions of both residential properties for which CPL’s were registered on title. On balance, I am satisfied that it is in the interests of justice to have all of the motions heard together to allow for an expedient and fair determination of the issues in dispute.
[36] Accordingly, Brijesh’s motion is granted and the following is ordered:
a. The motion return date of June 30, 2021 in McSweeney J.’s Endorsement dated January 19, 2021 is vacated and the timetable found at paras 21(c) to (i) of the Endorsement is varied, nunc pro tunc, to reflect the following timetable:
i. The Defendant, Brijesh Patel, may forthwith file his affidavit sworn May 2, 2021 in response to the motion for summary judgment by the Plaintiff, Zubair Afzal;
ii. The Plaintiff, Zubair Afzal, shall delivery any reply affidavit(s) to Brijesh Patel’s affidavit by July 9, 2021;
iii. The Defendant, Brijesh Patel, may cross-examine the Plaintiff, Zubair Afzal, and any affiants who swore or will swear affidavits in support of his motion for summary judgment, namely Surrayya Afzal, Waqar Afzal, Rashid Malik, Ansar Bharwana, Saumya Bhargava, Tejdeep Singh Chatta, and Michael Parsons, and any additional reply affiants, on their respective affidavits;
iv. The Plaintiff, Zubair Afzal, may cross-examine the Defendant, Brijesh Patel, on his affidavit;
v. The Defendant, Dharmista Patel, may cross-examine the Plaintiff’s affiant Saumya Bhargava, as she was unavailable to be examined during previously scheduled examinations;
vi. Cross-examinations shall be completed by July 30, 2021;
vii. Answers to undertakings shall be provided by August 30, 2021;
viii. Any motions to address undertakings or refusals, or to seek leave to adduce new evidence, shall be brought by September 30, 2021;
ix. The moving parties for the summary judgment motion, the cross-motion for summary judgment, and the CPL discharge motion, respectively, shall serve
materials for the motions (i.e., transcripts, exhibits, and answers arising from examinations), including facta and authorities for their respective motions, by November 19, 2021;
x. Responding materials for the motions, including facta and authorities, shall be served by December 10, 2021;
xi. Any reply materials for the motions shall be served by December 16, 2021;
xii. Materials shall be filed forthwith after service is affected;
xiii. The summary judgment motion, the cross-motion for summary judgment, and the CPL discharge motion, shall be heard together during a one-day long motion returnable on December 20, 2021.
[37] For clarity, the balance of McSweeney J.’s Endorsement of January 19, 2021 is not varied.
[38] Counsel are encouraged to confer and prepare jointly-filed records where possible, and are directed to avoid duplicating materials in their filings.
[39] If the parties are unable resolve the issue of costs for this motion, the Defendants may deliver costs submissions of up to 3 pages (excluding any costs outline or offer to settle) within 15 days, and the Plaintiff may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
[40] I shall remain seized with respect to any issues involving the timetable.
Doi J.
Date: June 30, 2021
COURT FILE NO.: CV-18-5500-00
DATE: 2021 06 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zubair Afzal, Plaintiff
AND:
Dharmista Patel and Brijesh Patel, Defendants
BEFORE: DOI J.
COUNSEL: David Winer, for the moving
Defendant, Brijesh Patel
Jasdeep Bal, for the responding Plaintiff, Zubair Afzal
Lawrence Wallach and Shaun Rotman, for the Defendant, Dharmista Patel
ENDORSEMENT
Doi J.
DATE: June 30, 2021
- 2 -
[^1]: To better identify the parties, and specifically to distinguish the Defendants who share the same surname, I shall refer to the parties by their first names in these reasons.
[^2]: For clarity, the affiants are Zubair Afzal, Surrayya Afzal, Waqar Afzal, Rashid Malik, Ansar Bharwana, Saumya Bhargava, Tejdeep Singh Chatta and Michael Parsons, all of whom swore their respective affidavits on February 26, 2021.
[^3]: By Endorsement dated January 19, 2021, McSweeney J. ordered three (3) motions to be heard together, namely the Plaintiff’s motion for summary judgment, the cross-motion for summary judgment by the Defendant Dharmista Patel (“Dharmista”), and the motion by Dharmista to discharge the Plaintiff’s certificates of pending litigation on the properties in this matter. McSweeney J. had scheduled the motions to return on June 30, 2021.
[^4]: By Endorsement dated June 18, 2021, Mandhane J. ordered Brijesh’s amended pleading and Dharmista’s amended statement of defence and counterclaim to be accepted for filing by the court.
[^5]: Endorsement of McSweeney J. dated January 19, 2021 at para 24.
[^6]: Ibid at para 25.
[^7]: The affidavit that Brijesh seeks to rely upon is nine (9) paragraphs in length and attaches two (2) exhibits totaling three (3) pages, one of which was a clearer copy of a previously produced document. By comparison, Zubair delivered further evidence during his own cross-examination totaling 104 pages of material (i.e., which had been referred to in his affidavit but not produced) that were marked as exhibits during his examination.