Court File and Parties

COURT FILE NO.: CV-20-1887

DATE: 2021 08 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shen Feng Investment Group Ltd., Plaintiff

AND:

JBN Medical Diagnostic Services Inc., JBN Medical Diagnostics Inc., Joseph Carmen Berlingieri aka Joseph Berlingieri and William Alan Nisker aka William Nisker, Defendants

BEFORE: Conlan J.

COUNSEL: Robert Malen, Counsel for the Plaintiff

Michael Furyk and Heather Devine, Counsel for the Defendants

HEARD: August 11, 2021

ENDORSEMENT AT CASE CONFERENCE

Not a Tea Party

[1] Just as it has been observed in the past that a serious criminal trial is not a tea party, the same could be said for commercial litigation, with big money at stake, involving professional parties, and with excellent counsel on both sides, for whom such a dispute is not his/her first rodeo.

[2] This is such a commercial litigation file. Even the case conference held before me on August 11, 2021 was highly-charged.

What to Decide At This Time

[3] The case is all about a commercial lease between the Plaintiff and the Defendants. I understand that there are two full days set aside in January 2022 (the 24th and the 25th) for the Plaintiff/landlord’s motion for summary judgment and for the Defendants/tenants’ Rule 21 motion.

[4] Much was discussed at Court on August 11th, including but not limited to (i) a proposed timetable for steps that will come before the motion for summary judgment is heard, (ii) who will cross-examine affiants first, (iii) the propriety of a demand for particulars served by the Defendants today, (iv) the Defendants’ request for a further and better affidavit of documents to be delivered by the Plaintiff, and (v) the possibility of oral evidence (a mini-trial) being a part of the hearing of the summary judgment motion.

[5] I have determined that the only thing that I should decide at this juncture is the timetable. The other matters, if they cannot be resolved among counsel, will have to be the subjects of further motions. A proper evidentiary record will be required.

The Timetable

[6] On the timetable, I have elected to accede to the proposal made by counsel for the Plaintiff but pushed back two weeks for each step contained therein. The extension of the timetable, that is two weeks later for each event, is to accommodate Ms. Devine’s out-of-country commitment next week.

[7] This Court, therefore, orders the following timetable:

Demand for Particulars – by August 27, 2021;

Response to Demand for Particulars – by September 3, 2021;

Request to Inspect Documents – by August 27, 2021;

Production of Documents – by September 14, 2021;

Request to Admit – by September 3, 2021;

Response to Request to Admit – as per the Rules;

Service of Amended Statement of Defence – by September 15, 2021;

Service of Defendants’ additional affidavits, if any – by September 24, 2021;

*Motion to strike summonses – October 6, 2021;

Service of Reply affidavits, if any – by October 15, 2021; and

**All cross-examinations/examinations to be completed by November 19, 2021.

[8] *This is a motion brought by the Plaintiff to strike summonses issued by the Defendants. The Defendants wish to examine certain persons on behalf of the Plaintiff corporation. The Plaintiff has served a motion to strike those summonses. It is not necessary here to outline the grounds for that motion or the positions of both sides.

[9] **This step includes the Defendants’ counsel examining those persons who are the subjects of the October 6, 2021 motion brought by the Plaintiff. In other words, if the Plaintiff is unsuccessful in striking the summonses, then the Defendants must ensure that the examinations of those who have been summoned have been completed by November 19, 2021. That addresses the concern of Ms. Devine that those potential examinations must be “worked into the timetable”. They have been.

[10] There are Practice Directions in place that govern any steps that post-date November 19th, such as the requirements for facta and casebooks. Thus, no order is required in that regard. The Practice Directions must be followed. There is sufficient time to accommodate them.

[11] The within Court-ordered timetable is a reasonable compromise, in my view, between the positions advanced at the case conference held on August 11th. More important, it will not rush the parties or their counsel but, at the same time, will not impinge on the Court’s own required preparation time in advance of the hearing dates. The November 19th date simply cannot be extended any further than it has.

A Further Case Conference

[12] If a further case conference is desired by counsel, whether before or after November 19th, then that request may be made through the trial office.

(“Original signed by”)

Conlan J.

Date: August 11, 2021