Court File and Parties

COURT FILE NO.: CV-20-636658 and CV-20-638608 DATE: 2021-09-14 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Walied Soliman, Plaintiff AND: Daniel Bordman, TAG TV Inc., Joel Bordman and Risa Bordman, Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Jonathan Lisus and Niklas Holmberg, Counsel for the Plaintiff Marcus Klee, Counsel for the Defendant, Daniel Bordman Arthur Yallen, Counsel for the Defendants, Joel and Risa Bordman

HEARD: September 14, 2021

Endorsement

[1] I have been case managing these matters since July, 2020. The plaintiff, Walied Soliman, commenced these actions in February and March 2020. The actions are for defamation arising from numerous online broadcasts and postings on the internet by Daniel Bordman (“Daniel”). On their face, the statements are very defamatory of the plaintiff and, it is alleged, constitute hate speech.

[2] In July 2020, at a case conference, I set a schedule for discovery. At the time, Daniel was represented by counsel. Discoveries were completed in the fall of 2020.

[3] In March 2021, counsel for the plaintiff served a motion record seeking summary judgment.

[4] On April 7, 2021, I convened a case conference to address the request to schedule a summary judgment motion. At that time, Daniel was representing himself but advised that he was looking for counsel. Counsel for the other defendants, TAG TV Inc. and Joel and Risa Bordman (Daniel Bordman’s parents who are defendants in the second action arising from the use of their property by their son in making the posts and broadcasts), indicated that they were also considering summary judgment motions. I adjourned the case conference to April 21, 2021 to allow the parties to consider their positions and to address whether summary judgment motions were appropriate.

[5] At the April 7, 2021 case conference, counsel for the plaintiff raised the concern that Daniel was continuing to defame the plaintiff.

[6] On April 21, 2021, after hearing submissions from Daniel and from counsel for the plaintiff, I concluded that summary judgment motions should proceed and set a schedule leading to a full day hearing on September 21, 2021. I indicated that I remained the case management judge and could be contacted if necessary.

[7] I am advised that at Daniel’s cross-examination on July 29, 2021, he was represented by counsel.

[8] On September 9, 2021, I received correspondence from the plaintiff’s counsel advising that Daniel had not served his responding factum as required on September 7, 2021, and was asked to direct Daniel to deliver his factum by 4:00pm on September 9, 2021 and to make the hearing peremptory to him. I directed that Daniel deliver his factum forthwith and confirmed that the matter remained scheduled for September 21, 2021.

[9] Daniel delivered a factum on his own behalf later on September 9, 2021.

[10] Yesterday, on Monday September 13, 2021, I received correspondence from Aitken Klee LLP advising me that on Friday, September 10, 2021, Daniel retained them to represent him. Aitken Klee’s letter sought a “brief adjournment” to “provide proper representation.” They also sought leave to serve and file a factum to replace the factum prepared by Daniel.

[11] Counsel for the plaintiff advised that it opposed the adjournment. I immediately scheduled a case conference which was held this morning. Following submissions by the parties (TAG TV is no longer in the action, and counsel for Daniel’s parents consented to the request) I denied the adjournment and indicated that an endorsement would follow.

[12] In considering a request for an adjournment, I must balance the interests of the parties and the interests of the administration of justice, and have regard to the goal of securing the “just determination” of the issues: Turbo Logistics Canada Inc. v. HSBC Bank Canada, (2016) 401 DLR (4th) 187, 2016 ONCA 222 at paras. 18 -19; Khimji v. Dhanani (2004), 69 O.R. (3d) 790, 2004 CanLII 12037 (ONCA) at para. 14.

[13] No explanation was provided for Daniel retaining counsel at this late date in the proceedings. He has had counsel in the past and has demonstrated a clear understanding of the process. This date was set after two case conferences to address the appropriateness of summary judgment. A full day has been set aside and the plaintiff is ready to proceed.

[14] Daniel’s counsel took this matter on knowing that the hearing was set for September 21, 2021, some 11 days after they were retained. They do not seek to file new evidence but, rather, wish simply to draft a new factum so that the facts and law can be more effectively put forward on behalf of their client which, they submit, will be of assistance to the judge and be in the interests of justice.

[15] Adjournments are not available simply for the asking. The plaintiff has a right to have his matter heard and will be prejudiced by further delay. His counsel has met the schedule set by me last April, including filing a brief reply factum responding to Daniel’s factum. The defamatory postings remain on the internet, and Daniel apparently continues to tweet and post about this matter.

[16] Daniel does not offer to cease publishing posts about the plaintiff or this litigation, let alone remove any of the posts even temporarily pending the motion for summary judgment. Of course, in pointing this out, I acknowledge that Daniel is not obliged to remove posts or cease his publishing activities, but when he is seeking an indulgence from the Court and seeking to delay the plaintiff’s efforts to get relief, he ought to consider what he could do to remove the prejudice to the plaintiff arising from his request.

[17] Daniel also makes no offer of costs, or to be responsible for costs thrown away due to an adjournment, his counsel arguing only that costs are irrelevant given that plaintiff’s counsel is acting pro bono. This is incorrect. Just because counsel has taken on a matter pro bono does not mean that costs rules do not apply, or that the court loses the ability to use costs orders to address the conduct of the case, including the behaviour of the parties or their counsel: see, e.g., 1465778 Ontario Inc. v. 1122077 Ontario Ltd., (2006), 82 OR (3d) 757, 2006 CanLII 35819.

[18] In my view an adjournment in this case is not appropriate or necessary. Any prejudice to Daniel is of his own making. The issue of whether he should have counsel has been raised previously, and Daniel appears to be quite sophisticated and knowledgeable of court procedures. He has failed to provide any explanation for only retaining counsel now.

[19] In addition, Daniel has had counsel in the past. He has had the plaintiff’s factum since August 23, 2021. In any event, any prejudice to Daniel is limited. His new counsel took this matter on some 11 days before the hearing. Mr. Klee indicated this morning that they have a team working on this matter. A full day has been set aside for oral argument, which will allow counsel for Daniel to address the issues. Further, as I directed at the conclusion of the call this morning, should counsel for Daniel wish to file a supplementary factum they may do so by the end of the day, Friday, September 17, 2021.

[20] On the other hand, the plaintiff will be prejudiced by further delay as the alleged injury to his reputation is ongoing and he has a right to have his matter addressed in a timely way. The administration of justice is not served by last minute adjournments which waste judicial resources. Nor will the just determination of the matter suffer having regard to the time that is still available to counsel for Daniel to prepare and present both written and oral argument.

[21] The request for an adjournment is denied. I leave costs of this request, and any consequences which flow from it, to the judge hearing the motion for summary judgment.

Paul B. Schabas J.

Date: September 14, 2021