COURT FILE NO.: CV-08-354560
MOTION HEARD: August 31, 2021
Date of Decision: September 23, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
Arcadia Participacoes Ltda.
Plaintiff/Defendant to the Counterclaim (Responding and Moving party)
AND:
Alexey Kondratiev, Smart Games Canada, Inc.
Defendants/Plaintiffs by Counterclaim (Moving and Responding parties)
AND:
Eugene Chayevsky, Adenilton Cezar Xavier, Cadillac Jack, Inc., Finstar Financial Group LLC and Tilley International & Associates Inc., carrying on business as Tilley Entertainment
Defendants by Counterclaim (Responding and Moving parties)
BEFORE: Associate Justice Josefo
COUNSEL: Mr. A. Kondratiev, self-represented, and with leave to represent Smart Games Canada, Inc., the Moving & Responding Party Defendants/Plaintiffs by Counterclaim; Email: akondratiev@mac.com & akondratiev@me.com
F. Siddiqui and E. Anschuetz, Counsel for the Responding and Moving Party Plaintiff and the “non-Cadillac Jack” Defendants to the Counterclaim;
Email: fahad.siddiqui@nortonrosefullbright.com & Erika.anschuetz@nortonrosefulbright.com
R. S. Woods and M. Shapiro, Counsel for the Responding and Moving Party, Cadillac Jack, Inc., Defendant to the Counterclaim;
Email: Seumas.woods@blakes.com & max.shapiro@blakes.com
HEARD: August 31, 2021
REASONS FOR DECISION and Order
[1] The issue to be decided on this motion is whether Mr. Alexey Kondratiev and his company, Smart Games Canada, Inc., defendants and plaintiffs by counterclaim, (collectively, “Kondratiev”) may continue with this within action. Kondratiev urges a further extension to the set-down deadline of December 31, 2019. The other parties, the plaintiff, and all defendants to the counterclaim, oppose any further extension or variance to the deadline. These other parties also move for, inter alia, a dismissal of the case.
Recent Procedural History:
[2] By way of procedural background, at paragraph six of his December 16, 2019 decision, Master Muir (as he was then titled; the current title is “Associate Justice”) allowed Kondratiev to bring a motion to vary my prior order of January 24, 2019, which order had extended the set-down deadline to December 31, 2019. Master Muir provided that:
If a motion date is booked and a notice of motion is served before the set down deadline in Master Josefo's order, the court will not dismiss this action pending the hearing of that motion.
[3] In supplementary reasons for decision dated December 23, 2019, Master Muir, as the then Administrative Master, acknowledged that Kondratiev had requested a date for a motion to vary my prior order. Master Muir intended to assign the matter to a Master or convene a case conference after the holiday season that year. In the interim, he ordered that:
The Registrar shall not dismiss this action without further order of the court.
[4] On March 4, 2020, counsel for Cadillac Jack took the initiative to request a case conference. It was scheduled for March 27, 2020. Yet it was cancelled because of the Covid pandemic. In the summer of 2020, Master Muir unfortunately died. As the courts were processing matters by video or telephone appearance, on December 2, 2020 Mr. Siddiqui, for his clients, sought a remote Chambers Appointment to “seek direction with respect to the passage of a set-down deadline and the non-payment of a costs order”. He did so as Kondratiev had not sought such direction.
[5] Then Administrative Master Graham assigned this matter to me. After hearing from all parties participating, I issued an Endorsement on December 11, 2020 which, inter alia, established certain requisites, some discussed ahead in these reasons. I also scheduled Kondratiev’s motion to extend the set-down deadline, along with the responding motions.
[6] Those motions were originally scheduled for April 14, 2021. Unfortunately, due to illness I was unable to proceed that day. A new return date of August 31, 2021 was set on consent of the parties. Given the appointment of two new Masters, I offered the parties an opportunity to have the matter heard earlier in the summer of 2021 with one of my new colleagues. Yet the parties chose to keep the August 31^st^ date and proceed before me.
Overview of the Relevant Facts:
[7] My January 25, 2019 reasons for decision, 2019 ONSC 675, which extended the set-down deadline until December 31, 2019, is available to a reader interested in more detail. Yet the following excerpts from that decision should suffice for both a factual overview and for context of the current motions before me (excerpted from paragraphs three through eight of the decision):
The Moving Parties and the two Responding Parties in the main accept the chronology set out in the factum prepared by Mr. Siddiqui for the “non-Cadillac Jack” respondents. The case involves electronic bingo machines. The Moving Parties in June 2008 filed a Defence and Counterclaim, responding to the litigation initiated by the Plaintiff, Arcadia. The dispute(s) pertained inter alia to the ownership of and revenue derived from the bingo machines. The dispute arises out of matters occurring in 2006 through to 2008. The litigation over these many years has taken various twists and turns. The Moving Parties in 2009 started a new action which, pursuant to the Order of Master Haberman dated February 28, 2014, was consolidated into the original 2008 action. Certain parties to the 2009 action (Chayevsky, Xavier, Finstar and Tilley) filed their Defence about four years later, in or about October 2013. In the four year interval there were quite a number of pleadings motions and disputes. It is fair to observe that the Moving Parties have often faced an uphill struggle in attempting to amend its pleadings, which have often been struck. In 2015, yet a third action, which the Moving Parties asserted was a “related action”, was commenced pertaining to the bingo machines. On December 21, 2016 this statement of claim was struck out, without leave to amend. The Court of Appeal upheld that decision, save for one paragraph in the claim which was allowed to stand. Yet that paragraph was seemingly not pursued further. There have been a total of nine what I describe as “timetable Orders”. Four of these were made under the 2008 action, two were made pursuant to the 2009 action, while three were made pursuant to the consolidated action. It is not in dispute that each such Order allowed for an extension of time and varied the timetable. The ninth Order, that of Master Pope made May 15, 2017, provided typically that while the timetable itself could be varied by the parties, the set-down deadline could only be varied by Order of the Court. The set-down deadline established in this most recent Order was December 31, 2018. It is fair to note that the above-noted nine Orders were all on consent. In other words, the prior Court-Ordered “deadlines” I find were not treated as such by any of the litigants. Moreover, it was not only the Moving Parties on this motion who in the past sought extensions. Some motions to extend time were also brought by Arcadia, to which the other parties consented. It is also fair to observe that, until on or about December 4, 2018, all parties seemed to acquiesce in or even agree to this extraordinarily leisurely pace by which this litigation was conducted. This includes conduct beginning late last summer and into the autumn, when all parties agreed to schedule a motion to allow the herein Moving Parties yet another opportunity to amend their pleadings, to try to add whom they assert are appropriate and related parties (the Responding Parties obviously disagreed with the proposed amendments, which is why a motion was required).
[8] The question before me in this present motion is essentially the same as what was before me the last time (excerpted from paragraph 16 of my prior decision):
The question for me is, on these facts and in these circumstances, when, as one of the counsel wrote in their factum, is enough, enough? In this case, has the point of no return been reached?
[9] Overall, after reviewing the evidence, submissions, and the applicable law, I then came to the following conclusions, answering that question as follows in my prior decision (excerpted from paragraphs 34, 35, 38, 39):
The importance of finality is the last point which I will address. It is indeed important. As I have hopefully made clear, I am very troubled by how long this case has existed, and that Orders have come and gone with nobody being particularly concerned, if concerned at all. This is not an approach to be rewarded. Yet counsel for the Moving Parties has contritely recognized this, as his factum and submissions make clear. He also acknowledges that, now that his litigation opponents have raised the issue, any extension which I may grant is the final one. In my view, it is beyond doubt that, if I grant another extension it is final. I have struggled with whether such a final extension, the tenth one, should be granted. It is a close call given the very lengthy delay since this matter has begun. What has ultimately led me to grant the motion, and thus allow this final set-down extension, is my finding that the Responding Parties, who again have the right to change their minds and, going forward, to insist that the case proceed with alacrity, did not provide the Moving Parties with, really, any warning of this sudden change in position….Accordingly, the motion is granted. Time will be extended. The Parties were not in agreement as to what would be a reasonable extension in all the circumstances (including re-scheduling the pleadings motion, if desired). I urge the parties to collaborate on a realistic timetable, including a new set-down deadline, and bring such forward on consent. I would be pleased to approve a new timetable if such is brought through a written consent motion, to my attention through my Assistant Trial Coordinator (“ATC”). Of course, it is clear that this new timetable will be final. If the parties are, however, not able to agree on specific milestones, or a set-down deadline, then a short motion to set the timetable may be brought before me [emphasis added].
[10] Kondratiev, then represented by the counsel who had appeared before me on the January 24, 2019 motion, however, would “not agree to a timetable that includes a final and fixed set down deadline”, as his then counsel wrote to the other parties on March 6, 2019. Yet that position is contrary to what I had unequivocally concluded in my prior decision as set out above. The matter thus remained stalled until the parties appeared before me on May 8, 2019. On that day, after hearing submissions I finalized my January 24, 2019 timetable order. It provided for two scenarios. One outcome clearly provided for was, if Kondratiev did not file materials in support of certain motions (to amend pleadings, which he ultimately did not), the set-down deadline was December 31, 2019.
[11] Tellingly, in the order the following was stated:
All deadlines herein are peremptory on the defendants/plaintiffs by counterclaim.
[12] Paragraph two of the Order provided as follows:
THIS COURT ORDERS AND DIRECTS that pursuant to Rule 48 the Registrar shall dismiss this action for delay unless the action has been set down for trial or terminated by any means on or before the new deadline for setting the action down for trial, which shall be pursuant to the applicable option in the attached Schedule “A” timetable.
[13] Again, the option in the Schedule “A” timetable gave Kondratiev the opportunity to choose to seek to amend his pleading or not. As he did not seek to do so by the deadline of May 31, 2019, the case proceeded based on the set down deadline, amongst other timetable deadlines, of December 31, 2019. As described above in my procedural overview, Master Muir on December 23, 2019 directed the Registrar to not dismiss the action pending further court order.
[14] Thus, Master Muir allowed Kondratiev an opportunity to seek to vary my order. On August 31, 2021, I heard him, and counsel representing the other parties on this issue. What eventually follows are my conclusions. An initial word on my approach, however, is warranted. The first hurdle is for Kondratiev to persuade me that my prior, peremptory order ought to be varied or set aside. Only if I agree do I need to consider the additional motions of those responding to that who seek, amongst other things, to limit discovery and indeed, to dismiss the action entirely. Yet, before I turn to their motions, I need to first determine if Kondratiev shall have his extension. If not, then, pursuant to my prior order, “the Registrar shall dismiss this action for delay…”. In coming to my conclusion, I consider all the history and facts in that regard as set out in the voluminous record, with what I find are the more important aspects of that addressed herein.
Other Relevant Court Appearances:
[15] There were other court appearances after the parties were before me on May 8, 2019 and prior to the last appearance before Master Muir on December 13, 2019. The parties were before Master Brott twice. In her September 12, 2019 endorsement, Master Brott observed that Kondratiev sought to not only represent Smart Games Canada Inc., but he also then sought “numerous other orders”. Kondratiev ultimately adjourned his motion seeking to represent Smart Games so to file supplementary material. After what was described as a case-conference with Master Brott, Kondratiev was given his opportunity to pursue his various other motions prior to December 31, 2019. Discoveries were also ordered to be conducted within a timeline. Deadlines were peremptory on all parties. In her October 3, 2019 endorsement, Master Brott made further orders pertaining to discovery and mediation. The parties complied with those mediation and (at least in part) discovery orders.
[16] In Master Muir’s December 16, 2019 above-referenced decision, leave was granted for Kondratiev personally to represent Smart Games (the “moving parties”, as Kondratiev and Smart Games were described by Master Muir in his decision). The decision observed that the other parties did not oppose Kondratiev representing Smart Games; nor did they oppose an order validating service of Kondratiev’s affidavit of documents and productions as of June 28, 2019. Yet the other relief then sought by Kondratiev was not granted. Master Muir described those issues in his decision, 2019 ONSC 7303, as follows:
[3] The balance of the relief on this motion was opposed by the responding parties. The defendants/plaintiffs by counterclaim seek an order striking the statements of defence of the defendants to counterclaim Tilley International & Associates Inc., carrying on business as Tilley Entertainment ("Tilley") and Finstar Financial Group LLC ("Finstar"), citing irregularities with their affidavits of documents. Finally, the moving parties seek an order sanctioning the defendants to counterclaim for an alleged breach of the order of Master Brott of October 3, 2019. 2019 ONSC 7303…
[5] The evidence of the moving parties also included evidence of allegedly improper or criminal behavior on the part of persons involved with this proceeding and the underlying events giving rise to the litigation. None of that evidence is relevant to matters in issue on this procedural motion and only served to cloud the record and detract from the real points of disagreement.
[6] At the outset of the hearing of this motion, the moving parties sought leave to file a supplementary motion record with an amended notice of motion. I declined to grant permission for the supplementary record to be filed. The supplementary record had only been recently served and was not filed in a timely manner. The date for this motion was a special appointment long motion hearing and had been scheduled several months in advance. The responding parties would have needed to respond which would have required an adjournment. Moreover, the relief in the amended notice of motion will depend, to some extent, on my decision on the motion that is properly before the court. Finally, the moving parties will not be prejudiced. They can bring a motion to vary the order of Master Josefo in due course. If a motion date is booked and a notice of motion is served before the set down deadline in Master Josefo's order, the court will not dismiss this action pending the hearing of that motion.
[7] I am not prepared to strike the statements of defence as requested by the moving parties. Finstar served its sworn affidavit of documents in May 2016. Finstar's affidavit of documents was sworn by Pavel Ivlev, who was responsible for the winding-down of Finstar's operations. As such, he is a person who would have knowledge of Finstar's operations and its records and documents. In any event, the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules") do not specify who is to swear an affidavit of documents on behalf of a corporation. In my view, it is sufficient if it is obvious from the face of the affidavit of documents that the person swearing the affidavit of documents conducted a search of the corporation's records. It is also not surprising that Finstar's affidavit of documents is similar to the plaintiff's affidavit of documents as they are related corporations. I note that the moving parties have been in possession of Finstar's affidavit of documents since May 2016 and made no objection until earlier this year.
[8] Tilley has not served a sworn affidavit of documents. It has served an unsworn affidavit of documents and has indicated that a sworn version will follow. The draft affidavit of documents lists no documents. This is not surprising either as Tilley's position has always been that it is not a proper party to this action, and it had nothing to do with the matters in issue in this proceeding. Nevertheless, even a party that has no relevant documents is required to serve a sworn affidavit of documents stating as much.
[9] Striking a defence for breach of the Rules is a remedy of last resort to be used only in exceptional circumstances where a party has shown a cavalier disregard of its obligations. See Glass v. 618717 Ontario Inc., 2011 ONSC 2810 at paragraph 36. Tilley's breach of the Rules cannot be described in this fashion. Its failure to serve an affidavit of documents is obviously related to the fact it has no documents. It has now served a draft affidavit of documents and has promised to serve a sworn version executed by Clive Tilley, a former officer and director of Tilley. An order requiring Tilley to do this is sufficient in the circumstances of this motion.
[10] Finally, I see no breach of Master Brott's October 3, 2019 order. Master Brott ordered that the defendants to counterclaim, other than Cadillac Jack, Inc., be represented at mediation by one person who had instructions from all those defendants by counterclaim and would be able to enter into a binding settlement agreement. Mr. Pavel Ivlev attended the mediation with counsel for those defendants by counterclaim. The evidence of those defendants by counterclaim is that Mr. Ivlev was present at the mediation as their representative in accordance with the terms of Master Brott's order. There is nothing in the evidence to suggest otherwise.
[17] Addressing costs arising out of the December 13^th^ hearing and his December 16, 2019 decision, on February 24, 2020, 2020 ONSC 1205, Master Muir concluded in part as follows:
[9] The Arcadia Parties have been largely successful and are entitled to costs, with a small reduction for the Tilley affidavit of documents issue. It is clear that these parties were required to invest a significant amount of time in responding to the various relief requested by the moving parties. It was reasonable for the Arcadia Parties to do so given the very serious nature of the relief requested by the moving parties. The costs requested appear fair and reasonable in the circumstances of this motion, especially in view of the lack of costs submissions from the moving parties. The Arcadia Parties invited the moving parties to discuss a resolution of the costs issue, but the moving parties did not respond.
[10] I am not prepared to award substantial indemnity costs. The allegations of misconduct made by the moving parties were without merit, ill-advised and irrelevant. However, I am unable to conclude that they reached the required level that would allow the court to make a clear finding of reprehensible conduct [emphasis added].
[11] I have therefore concluded that it is fair and reasonable for Alexey Kondratiev and Smart Games Canada Inc. to pay the partial indemnity costs of the Arcadia Parties fixed in the amount of $9,000.00, inclusive of HST and disbursements. These costs shall be paid by March 25, 2020.
[18] Those costs, however, were not paid by that deadline. In my aforementioned December 11, 2020 Endorsement, I made it clear that these costs must be paid before Kondratiev’s within motion to extend the set down deadline would be heard. The then deadline was January 8, 2021. Finally, belatedly, after prevarication and equivocation, and after my January 11, 2021 note to the parties setting a new, final, and “last chance” deadline for payment of costs as of January 20, 2021, these were paid.
[19] One other relevant factual point is that Kondratiev as of May 22, 2019 issued a claim against his counsel, the one who previously succeeded in persuading me to extend the set down deadline as described in my January 25, 2019 decision. On July 2, 2019, that lawyer informed other counsel that he had a removal motion pending on July 17, 2019. This is the second lawyer in this matter who Kondratiev has sued. The first such case seemingly resolved after the first day of trial with an order that may have been partially based on a settlement (the parties dispute that issue of settlement, yet I need not make any finding thereon). This second action against most recent counsel is ongoing, including a recent disposition in Kondratiev v. Wright, 2021 ONSC 6255 by Associate Justice Robinson addressing Kondratiev’s request to, inter alia, increase the prayer for relief.
[20] Whether or not either lawyer was or was not negligent is, of course, not a question I need address. I would only agree with counsel who opined that Kondratiev is free to pursue any such remedies in that regard, yet he would not be entitled to what could be a double recovery, claiming against counsel for alleged negligence as well as recovering on his within claims in this within action.
Applicable Law Juxtaposed with the Facts:
[21] Is it in the interests of justice that the final set down deadline in this case be again extended?
[22] Two relevant Court of Appeal decisions, amongst others, have discussed the issue of opening up a prior, final order or decision. Tsaoussis (litigation guardian of) v. Baetz, 1998 5454, involved a minor plaintiff who, after a settlement leading to judgment, was subsequently found to be more severely injured than had been originally believed. The plaintiff’s request to re-open the matter was, notwithstanding arguably difficult facts, nevertheless denied by the Court of Appeal. The Court concluded that, notwithstanding that the plaintiff was a minor, a motion to set aside the judgment is to be based on the same criteria as any other motion to set aside final judgments. Such motions require careful scrutiny, to prevent the important principle of finality from becoming an illusion rather than the bedrock of final orders and judgments. Doherty, J.A., stated in that regard in part as follows:
The parties and the community require that there be a definite and discernible end to legal disputes. There must be a point at which the parties can proceed on the basis that the matter has been decided and their respective rights and obligations have been finally determined. Without a discernible end point, the parties cannot get on with the rest of their lives secure in the knowledge that the issue has finally been determined, but must suffer the considerable economic and psychological burden of indeterminate proceedings in which their respective rights and obligations are revisited and reviewed as circumstances change.
[23] Clatney v. Quinn Thiel Mineault Grodzki LLP, 2016 ONCA 377, involved a former client seeking to assess the legal fees he was charged pursuant to a settlement with his lawyer, which settlement the client asserted was made under duress. Epstein J.A. stated in part as follows when allowing the former client to proceed to assess the legal fees:
[57] Courts are, with good reason, cautious about setting aside orders, particularly those made on consent. Finality is important in litigation. And, when dealing with a consent order, the objective that parties be held to their agreements is also an important consideration.
[58] However, as this court remarked in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257, at p. 272, there are ways, two in fact, by which an individual who would otherwise be bound by a previous order can seek to have that order set aside. First, the party can move in the original proceedings under r. 59.06(2)(a) in cases of "fraud or facts arising or discovered after [the order] was made". Or, the party can bring a separate action to set aside the order.
[59] The role of r. 59.06 is to provide an expeditious procedure for setting aside court orders. However, it does not prescribe or delineate a particular test: Mohammed v. York Fire & Casualty Insurance Co. (2006), 2006 3954 (ON CA), 79 O.R. (3d) 354 (C.A.), at para. 36, leave to appeal refd, [2006] S.C.C.A. No. 269; Tsaoussis, at p. 272. Ultimately, under r. 59.06 or within a separate action, an individual seeking to set aside an order is required to show "circumstances which warrant deviation from the fundamental principle that a final [order], unless appealed, marks the end of the litigation line": Tsaoussis, at p. 266. [emphasis added].
[60] Thus, a court is not limited to setting aside an order in instances of fraud or facts arising or discovered after the order has been made. This is reflected in a review of this court's decisions, which demonstrates a willingness to depart from finality and set aside court orders where it is necessary in the interests of justice to do so… [cases therein cited omitted].
[24] Rule 24.01(2) also comes into play in this matter. That provides that an action shall be dismissed for delay if the case has not been set down for trial in five years, “unless the plaintiff demonstrates that dismissal of the action would be unjust”. Again, the concern is justice, for the plaintiff but also for all the parties in a case.
[25] The Court of Appeal in Falcon Lumber Limited v. 2480375 Ontario Inc (GN Mouldings and Doors), 2020 ONCA 310 (“Falcon”) involved a pleading (statement of defence) being struck out as the defendant failed to make proper production despite multiple court orders. The striking out of a defence, meaning the plaintiff could easily move for judgment, is at least somewhat analogous to this within matter. Falcon, as does this matter, involved many motions, case-conferences, other attendances, and also, orders ignored. In Falcon, the court holds that parties shall have “a reasonable opportunity to cure non-compliance before striking out its pleading”.
[26] Factors noted in Falcon, at paragraphs 56-57 of the decision, include whether the failure to comply is deliberate or inadvertent, if the failure is clear and unequivocal, any reasonable explanation for it, a credible commitment to cure the default quickly, and whether the default is material or not. I consider and apply these factors in this within matter.
[27] As was discussed in Mishukov v. Fatoullaeva, et al., 2020 ONSC 5138 at paragraphs 18, referring to Starland Contracting Inc. v 1581518 Ontario Ltd, [2009] O.J. No. 2480,
The Rules reflect a balance. The litigant does not have an untrammeled right to have his or her case heard. In order to be heard, a case must be processed in accordance with the Rules.
[28] In this matter, extrapolating from all the above, I find that Kondratiev accordingly bears the onus to show, in essence, exceptional circumstances which justify departing from the ordinary premise that the order made, which was subsequently not followed, marks “the end of the litigation line”, referring to Tsaoussis. In this case, moreover, a peremptory order was clearly made. Such an order must be followed, absent exceptional circumstances. A departure from a peremptory order would, and indeed should, be rare. There must be a strong basis, and strong evidence to justify that basis, to seek to depart from a peremptory order.
[29] Referring to the above case-law and legal tests, there was no fraud in the obtention of the original, January 24, 2019 set down order. After all, with that order Kondratiev was given a further “lifeline” or extension. There are also no newly discovered facts upon which I can rely that would credibly demonstrate a significant or exceptional change in circumstances which would justify a departure from the ordinary premise that orders, let alone peremptory orders, are meant to be followed.
[30] As these reasons have shown, Kondratiev, instead of adhering to the order, deliberately chose to fritter away time, in fact, the better part of a year; not until into December 2020 seeking to proceed with examinations for discovery of Mr. Tilley, let alone acting with the necessary alacrity called for in the “last chance” Order. Pursuant to the September 12, 2019 endorsement of Master Brott, Kondratiev could also have pursued to examine Mr. Xavier via remote methods, or through written interrogatories. Yet he did neither with that potential witness whom he claimed to want to examine.
[31] Kondratiev has had, as the above history reveals, many chances to move the litigation forward so to avoid non-compliance with the peremptory order. From the beginning following the January 25, 2019 decision, instead of agreeing that the timetable and extension would be final, he refused, leading to several months time wasted. He has had warnings, including from counsel opposite who urged him to set the case down. There is thus no question of not only reasonable, but repeated, opportunities to avoid being in breach. He could easily have rectified the matter up to December 31, 2019, and likely avoided this motion, by setting the case down.
[32] That the matter is replete with ongoing delay, despite my prior order, is surprising and unfortunate. The bottom line is that, instead of proceeding with the litigation, other than a legitimate motion to seek to act personally for Smart Games (which motion, once Kondratiev finally did his diligence and submitted the necessary evidence in that regard, was I note not opposed), Kondratiev instead continued to attempt various procedural manoeuvres and “end-runs” which gave the appearance of forward motion, but in reality continued to leave the matter stuck in neutral. His unequivocal failure to do what needed to be done was not because of inadvertence. Rather, I find that Kondratiev deliberately chose to follow his own litigation strategy regarding the pursuit of certain relief sought before Masters Brott and Muir. It was ultimately his own strategic choices which led to his knowing breach of the set down order.
[33] Moreover, as determined by Master Muir and Master Brott in their above-referenced decisions, these various procedural manoeuvres, including attempts to have the action dismissed against Tilley, were unsuccessful. Indeed, these actions which Kondratiev, of his own volition, chose to take, saddled him with a substantial costs award made by Master Muir, which award he then delayed paying. He also dissembled and prevaricated whether, how, and when he paid it until I forced the issue by setting a final deadline in that regard. Yet all taking these steps accomplished, unfortunately, was Kondratiev wasting more of the limited time available from the remaining time during the final extension period.
[34] Again, it is not as if Kondratiev had not been warned. My original, January 25, 2019 decision made clear that the extension I would grant was final. Leading to the initial motion before me on January 24, 2019, it was fair that, as I had concluded in that decision, until very late in 2018 Kondratiev had then no warning of the change of approach of the other litigants regarding the set down deadline. Yet as of no later than January 24, 2019, and fairly, earlier given the material submitted for that initial motion, Kondratiev certainly knew of that change of approach. His then lawyer acknowledged that any extension which I gave would be the final one. Yet despite this, after my decision issued on January 25, 2019, again, Kondratiev was silent, taking no steps despite the ticking clock.
[35] This silence continued in the face of counsel for the other parties attempting to move the case forward, starting with the January 28, 2019 email of Mr. Siddiqui addressing the new timetable. On February 5 & 8, 2019, Mr. Siddiqui had to follow up. On February 12, 2019, Mr. Shapiro, for Cadillac Jack, gave it a try. He noted in correspondence to counsel for Kondratiev that it had been “over two weeks” since my prior decision was released, yet counsel had heard nothing. Concern was expressed over these “unexplained delays since the motion”. On that date counsel for Kondratiev responded, noting that they had “finally been able to obtain instructions…”.
[36] As described earlier, however, the parties could not agree so had to appear before me on in May 2019. That appearance was at least in part because Kondratiev refused to accept the finality of the prior extension. In that regard, see paragraph ten herein. More than three months were thus wasted. That pattern of conduct just continued with, again, Kondratiev later making various unsupported and unsuccessful allegations instead of choosing to advance his case. Counsel opposite had warned Kondratiev that there would be no further indulgences. Kondratiev thus could have had no illusion that the other parties would agree to any additional extension of time. In fact, to the contrary, as he was warned specifically that no such extension would be considered, so he was urged to set the matter down by the deadline. Yet again, he did not.
[37] This litigating as he sees fit, rather than adhering to his litigation obligations, is unfortunately part of a pattern. Kondratiev did not answer his undertakings from examinations for discovery in both 2009 and 2019. The 2019 undertakings, pertaining to his tax returns amongst other financial information sought and undertaken to be produced, I consider may well have been important in the context of the litigation. Yet he did not adhere to his obligation, however, he seeks an indulgence.
[38] As to how Kondratiev has conducted his case, suffice it to observe that some of my endorsements have touched on some conduct of his, including his allegations against counsel opposite which were not grounded in reality. That he is representing himself and his company meant that Mr. Kondratiev was given indulgences in that regard. If his conduct was the only issue, of course that, unless even more egregious than it was, would likely be insufficient in and of itself to not grant the relief requested. Yet his conduct is a factor which I weigh when considering whether it is in the interests of justice to vary the order and grant what is, again, a further indulgence. Indeed, I consider Kondratiev’s pattern of conduct in this entire matter, including what I have reviewed herein, when I consider whether it would be just to grant another extension.
[39] It is also clear that Kondratiev, in his Notice of Motion, which was clearly backdated to February 26, 2019 (given he refers therein to Master Muir’s December 16, 2019 Order), has proceeded to consider this matter from a very different, if not puzzling, perspective. Therein, he seeks an Order setting a deadline for Arcadia to set the action down, as “Arcadia’s failure to bring the action to trial by the deadline will result in the action being dismissed for delay with costs to the Moving parties…”. Yet my prior order was peremptory on Kondratiev, not Arcadia. The extension I had granted put the onus on him to move this case forward and to set it down by what was clearly stated to be the final deadline. Kondratiev did ultimately seek an extension of the set down deadline, as I described at the outset of these reasons. Yet it was, at least, audacious to also attempt to shift the blame to Arcadia. It is, I find, another example of Kondratiev’s approach to this case.
[40] Overall, given a material default in failing to set the action down by the extended deadline, absent any reasonable explanation for this failure, after a consideration of all the evidence and factors, I am unable to find any evidentiary support which demonstrates that it is in the interests of justice to vary my prior order. Kondratiev has not met his onus to show exceptional circumstances to justify a departure from the premise that the order made, which was subsequently not followed, marks “the end of the litigation line”. I see no principled basis under which I should exercise my discretion and grant a further indulgence. There are simply no facts or circumstances, compelling or otherwise, which would warrant this. Kondratiev, an intelligent man who has advanced university degrees, and who has had access to lawyers over many years, chose to litigate in a certain way. By so doing he deliberately allowed, despite clear warning, the time to expire on what was an unequivocal peremptory, and final, “lifeline” or extension of the set down deadline.
[41] Finality, which is what this old and convoluted case cries out for, will be illusory if yet another extension is given absent good reason for it. The respondents to this motion have been dragged through this matter for many years in a case that has gone stale. Memories fade, witnesses become harder to find, documents can get misplaced and, as noted, undertakings of the party seeking yet a further indulgence are not answered. Set down deadlines exist for good reason. Granting an extension would, on these facts, be also wrong systemically. It would undermine finality and the importance of the need for respect for and adherence to peremptory orders, absent very good excuse otherwise.
[42] Accordingly, pursuant to and following from the December 23, 2019 order of Master Muir, my further order is to lift his December 23, 2019 order. My January 24, 2019 timetable order, and particularly paragraph two therein, is now operative. The Registrar accordingly shall dismiss this action for delay. As I have so concluded, I need not address the motions of the responding parties.
[43] If the successful parties wish to pursue costs, assuming such cannot be agreed upon, a telephone or Zoom conference with me can be scheduled through my ATC. Written submissions on costs are limited to three pages each, plus the Costs Outline.
Associate Justice J. Josefo
Date: September 23, 2021
COURT FILE NO.: CV-08-354560
MOTION HEARD: August 31, 2021
Date of Decision: September XX, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arcadia Participacoes Ltda.
Plaintiff/Defendant to the Counterclaim (Responding and Moving party)
AND:
Alexey Kondratiev, Smart Games Canada, Inc.
Defendants/Plaintiffs by Counterclaim (Moving and Responding parties)
AND:
Eugene Chayevsky, Adenilton Cezar Xavier, Cadillac Jack, Inc., Finstar Financial Group LLC and Tilley International & Associates Inc., carrying on business as Tilley Entertainment
Defendants by Counterclaim (Responding and Moving parties)
REASONS FOR JUDGMENT
Associate Justice J. Josefo
Released: September 23, 2021