DATE: 20211116
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Innocon Inc. et al., Plaintiffs
-and-
Daro Flooring Constructions Inc. et al., Defendants
BEFORE: FL Myers J.
COUNSEL: Gregory W. Banks, counsel for the plaintiffs
Angela Assuras, counsel, for the defendants
HEARD: November 10, 2021
CASE CONFERENCE ENDORSEMENT
Case Conferences Enhance Access to Justice
[1] Should the court intervene summarily to prevent tactical steps that do not promote an efficient, affordable resolution on the merits?
[2] Cases and reports for over a decade have lamented the “motions culture” that remains prevalent on the Toronto Region Civil List even after the SCC’s seminal pronouncements in Hryniak v Mauldin, 2014 SCC 7.
[3] In the first paragraph of Hryniak, the Supreme Court of Canada recognized that in 2014 ensuring access to justice was the greatest challenge to the rule of law in Canada. It reported that:
Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.
[4] In the next paragraph of the decision, the Supreme Court provided a prescription to address this access to justice crisis:
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [Emphasis added.]
[5] At about the same time, in his remarks at the Opening of the Courts in September, 2014, Chief Justice Strathy described the state of the civil litigation in Ontario as follows:
Having been a lawyer and a judge in this province for over 40 years, it strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect. With the best of intentions we have designed elaborate rules and practices, engineered to ensure fairness and achieve just results. But perfection can be the enemy of the good, and our justice system has become so cumbersome and expensive that it is inaccessible to many of our own citizens.[^1]
[6] Not long after Hryniak was decided, Rule 50.13 of the Rules of Civil Procedure, RRO 1990, Reg 194 was enacted to allow judges to give directions and to make orders summarily for interlocutory relief at a case conferences.
[7] It is now seven years after Hryniak’s call for new models of adjudication to provide an efficient and affordable process for fair resolution of civil disputes on their merits. Rule 50.13 has emerged so that case conferences are available to help avoid the scourge of elaborate, costly, and slow procedural motions that burden and impede access to civil justice.
[8] Instead of waiting months to hear counter-productive formal motions, summary decisions at case conferences are being made with increased frequency in appropriate cases to help move cases forward toward resolution more efficiently, more affordably, and more justly.
The Procedural Facts
[9] The plaintiff sued the defendants for payment of invoices for flooring materials sold and delivered. The defendants claim that the flooring materials were defective and caused them to suffer losses on construction projects in which they used the plaintiffs’ flooring material.
[10] The defendants counterclaimed for over $50 million in damages including for defamation.
[11] The plaintiffs subsequently added a defamation claim of their own.
[12] Examinations for discovery were held in early 2020. On November 23, 2020, then Master Jolley ordered the plaintiff to answer undertakings, to answer questions refused, and to provide a supplementary affidavit of documents within 60 days.
[13] It is now almost a full year later and the plaintiffs acknowledge that they have not complied at all with the court’s order.
[14] In a moderately unusual inversion of the norm, the defendants sought to set the action down for trial this past summer. One usually expects the plaintiff as dominus litis [controller of the lawsuit] to push its action forward toward trial. Ms. Assuras advises that her trial record was rejected by the registrar because not all of the plaintiffs’ pleadings have been filed and there is a problem with the title of proceedings in one or more of the plaintiffs’ pleadings.
[15] Mr. Banks has been content to leave Ms. Assuras to deal with these issues although the solution apparently lies with his office.
[16] On September 23, 2021 the defendants served a motion record seeking an order under Rule 60.12 striking out the plaintiffs’ pleadings for non-compliance with Master Jolley’s order. Rule 60.12 authorizes the court (including an Associate Justice) to make a remedial order where a party fails to comply with an interlocutory order.
[17] The plaintiffs responded by saying, correctly, that in Toronto a motion under Rule 60.12 ought to be made to an Associate Justice. In addition, they brought a cross-motion for security for costs against the defendants. Mr. Banks advises that Royal Bank of Canada has an unsatisfied judgment against the corporate defendant. Moreover, he asserts that the plaintiffs understand that the principal of the corporate defendant may be delaying attending at an examination in aid of execution in relation to the bank’s judgment and that he may have left the country. These facts are denied by Ms. Assuras.
[18] On October 25, 2021, the defendants responded by changing their motion to claim a contempt order under Rule 60.11 instead of a compliance order under Rule 60.12.
[19] The effect of the defendants’ amendment to their proposed motion was to require that the motion be heard by a judge instead of an Associate Justice. The amendment may have been to try to avoid the backlog in scheduling motions before an Associate Justice or to try to preclude the security for costs motion from being linked as a cross-motion to the defendants’ request for relief due to the plaintiffs’ non-compliance with Master Jolley’s order.
[20] The gamesmanship on both sides is clear. The plaintiffs seek to deflect from their own non-compliance by opening an inquiry into the defendants’ finances to determine if they should pay security for costs. At first blush the motion seems reactive and weak. Security for costs does not lie generally against a defendant. To the extent that the defendants also have counterclaims, if security for costs is available, it will likely be limited to any counterclaims that are independent of the issues in the main claim. One can quickly see questions of availability of security for costs and the degree of overlap of the proceedings becoming a procedural quagmire. Meanwhile a foray into the opponents’ finances is virtually always tactically beneficial to obtain information for later enforcement proceedings and to embarrass and increase the costs of the allegedly financially strapped opponent.
[21] The defendants effort to uncouple the motions by moving for contempt is equally tactical. Substantively, a contempt order is much harder to obtain than an order for compliance under Rule 60.11. Moreover, in circumstances here, where what is in issue is compliance with a very procedural order, there is no real difference in likely outcomes. That is, the plaintiff is likely to be afforded some brief period of time to comply and then face a sanction – probably striking its pleadings – if it fails to do so.
[22] There is no substantive purpose of moving for contempt rather than for compliance under Rule 60.12 in this case. The alleged wrongdoing by the plaintiffs is not the type of defiance of a court order that might raise serious issues of quasi-criminal contempt of court. In addition, security for costs remains available as a response to the motion under Rules 56.09 and 1.05 in any event.
[23] But the procedural games were just beginning.
[24] On October 25, 2021, the defendants applied for a hearing date for their proposed contempt motion under s. C.1.5 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic.
[25] The Request From provides that counsel are required to agree on a schedule for a proposed motion or to explain why they have not agreed. Ms. Assuras explained as follows:
- September 18, 2021 - Defendants' counsel asked counsel for the Plaintiffs to complete the Form( at that time it was contemplated that the motion would proceed in writing ). The Motion record is served on that date.
2 September 23, 2021- Defendants' counsel advise Plaintiffs' counsel that motion will need to proceed via video and not in writing since the portal will not accept contested motions in writing and asked for Plaintiffs' counsel to complete revise Form.
September 27,2021 - Plaintiff's counsel does not complete the Form and sates he is too busy to do so.
October 10, 2021- Defendants' counsel asks Plaintiffs counsel to explain why he is too busy to deal with the Defendants' motion but, is not too busy to prepare the Plaintiffs' motion (which was later served on October 20, 2021).
See attached emails.
[26] By Triage Endorsement that day, I directed:
Ms. Assuras is directed to seek a case conference with me through my Judicial; Assistant therese.navrotski@ontario.ca a case conference under s., C.1.4 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic. The case conference will take place by Zoom at 8:30 a.m. on a date in the next two weeks.
Counsel have a duty to cooperate in scheduling matters. It sounds like this case is getting bogged down in procedural tactics instead of proceeding to a cooperative scheduling of an affordable, efficient resolution on the merits.
Counsel are on notice under R 50.13 (6) that I will consider making any scheduling order that will break through the current impasse and move this case forward duly. That may include scheduling motions or deferring proposed motions. Moreover, I will consider costs submissions in the event that one side or the other is seen to be requiring unnecessary steps by failing to set a schedule on a cooperative basis.
Counsel are urged to speak in advance and to agree on scheduling issues if they can. [Emphasis added.]
[27] Although I picked up on the unmistakable tone of tactical gamesmanship from the request form, I did not know the half of it.
[28] Prior to the case conference, Ms. Assuras delivered to the plaintiffs’ counsel a list of witnesses for trial with her estimates of the time required for their examinations-in-chief. She asked Mr. Banks to provide a list of the plaintiffs’ proposed witnesses. The following exchange occurred by emails all dated November 1, 2021.
[29] Mr. Banks believed that Ms. Assusras had greatly under-estimated her witnesses’ proposed examination times. He responded sarcastically:
I assume this is days and not hours.
For what purpose? It’s a case conference not a trial scheduling exercise.
You haven’t responded to my suggested list of issues.
[30] Ms. Assuras responded further:
The estimate is in hours. Kindly complete the chart so we may have that before Meyers J. at the Case Conference.
We will be providing feedback on the issues to be addressed shortly, but given Meyers J.s’ Endorsement, we will be asking that a pre-trial and trial date be set.
Kindly confirm when you filed the corrected Amended Reply and defence to counterclaim of your clients.
[31] Mr. Banks:
The endorsement deals with motion scheduling and that was what your complaint was about.
[32] Ms. Assuras:
I do not interpret the Endorsement of Meyer J. in the restricted manner that you do.
Kindly complete the witness chart and return same to me.
[33] Mr. Banks:
It’s plainly not a trial scheduling exercise and I’m not completing your chart
[34] In addition, at some point in or around September, the plaintiffs delivered an expert’s report from a Dr. Thomas discussing the expert’s testing of the plaintiffs’ flooring material.
[35] Ms. Assuras requested production for inspection of the samples of the plaintiffs’ flooring material that they provided to their expert witness. While Mr. Banks says that a picture of the samples was contained in photos disclosed, Ms. Assuras says that the existence of the samples themselves were not listed as separate documents in the plaintiffs’ affidavit of documents as they ought to have been.
[36] By email dated September 16, 2021 Ms. Assuras asked Mr. Banks:
Are there any part of the samples that your expert reviewed and tested still available ?
[37] Mr. Banks responded on September 21, 2021:
The samples from the Four Seasons have been preserved, if that is what you are referring to.
[38] Ms. Assuras emailed 18 minutes later:
Please take photos of the samples that remain and advise who has custody of them
[39] Mr. Banks responded six minutes later:
No
[40] Ms. Assuras wrote back immediately:
Just to make sure I understand your reply: you are saying no to taking photos of the remaining a samples and you are not prepared to advise who currently has custody of the samples? [Italics in the original.]
[41] Mr. Banks responded immediately:
My reply is clear.
[42] On September 22, 2021, at night, Ms. Assuras wrote:
Please advise if you are prepared to have [the principal of the defendant Daro] inspect the samples that were provided to Mr. Thomson and the ones that he created.
[43] On September 27, 2021, at night, Mr. Banks responded:
I don’t know Mr. Thomson is. Do you mean Dr. Thomas? If [the principal of the defendant Daro] is prepared to travel to New Brunswick, I will seek instructions.
[44] Apparently, Dr. Thomas works in Toronto but he had the samples tested at his lab in New Brunswick. Mr. Assuras then replied:
We will need to have the samples brought to Toronto, Ontario. I am sure that is not an issue since your expert resides in Ontario.
If you are not prepared to bring the samples to Toronto, please advise so I can bring a motion.
[45] Mr. Banks advised that the physical dimensions of the samples of flooring were perhaps one foot by one foot and a few inches thick. He submits that he has no problem allowing the defendants to inspect the sample but he “is not planning to bring it [or them] back”.
[46] It will be an interesting examination at trial with the witness testifying about a sample that he took from the construction site in downtown Toronto and left in New Brunswick. Or will Mr. Banks have it brought back for the trial but just too late for the defendants’ expert to inspect it?
[47] It’s all just so embarrassing – if not to counsel, then to the court and to the profession. Counsels’ inability to agree on a motion date; the debate over whether trial management can be discussed at a case conference and what my endorsement meant; and the inability to agree on how to deal with the trivial costs of moving a few piece of flooring to Toronto is just unworthy.
[48] Instead of reasonable people agreeing on procedural issues to move the matter forward toward resolution on its merits, it’s motion, motion, motion. Delay, delay delay. Costs, costs, costs. Is this what the clients should expect when they litigate their civil disputes in Toronto?
The Case Conference
[49] Before me at the case conference were:
a. The defendants’ request to schedule their contempt motion;
b. The plaintiffs’ request to schedule a cross-motion for security for costs;
c. The plaintiffs’ outstanding pleadings issues that are preventing the defendants from setting the action down for trial;
d. The defendants’ desire to move for production for inspection in Ontario of the plaintiffs’ flooring samples; and
e. The defendants’ request for trial scheduling and preliminary trial management;
[50] Mr. Banks concedes that his clients have not answered their undertakings, the questions they improperly refused, or provided their supplementary affidavit of documents as ordered.
[51] This is not acceptable. The plaintiffs have treated the court order as if it meant nothing.
[52] Mr. Banks says he has had to speak to numerous people and he has had health challenges. He volunteers that he expects to provide all required material with one or two weeks of the date of the hearing.
[53] I raised with Ms. Assuras the likelihood that her clients will not be fully satisfied or will want to conduct further examinations on the new material and answers once they are provided. She advised that the defendants want to get the action set down for trial. If the plaintiffs’ productions and answers continue to be deficient, the defendants will deal with it at trial. Moreover, under Rule 48.02 (2)(a) answers to undertakings can be sought even after the action is set down for trial.
[54] There is therefore no need for a contempt motion by the defendants at this time.
[55] What is necessary is to get the action set down for trial and climbing the trial list. There is no basis for me to set a trial date or a pretrial conference date at this stage before the action is even set down. While I completely accept the desire by a party to get the process of climbing the list started, trial time is too scarce to allow us to just pick times on spec and hope that cases will be ready. Trial Scheduling Court is available for counsel if and when the time comes.
[56] Mr., Banks submits that Ms. Assuras’s witness list is “absurd”. It grossly underestimates trial time required. He submits that she is trying to “waylay” his cross-motion for security for costs by underestimating the trial length and by deflecting the conversation to trial management. He says that he is not prepared to play this “game” and he will not discuss trial management at this case conference.
[57] As to the inspection of samples, the issue resolves to whether Ms. Assuras has to send an expert to New Brunswick or the plaintiffs will be required to produce the samples here. Documents, if the samples are documents, must be produced for inspection at counsels’ offices under Rule 30.04 (3). Or, if not documents, inspection of personal property can be ordered at a time and place set by the court under Rule 32.01 (3). The order can include monetary compensation as appropriate.
[58] The test for disclosure of samples is not a difficult one to surmount. The rule allows for production of relevant material especially to level the playing field among experts. See: The Brick Warehouse Corporation v. B. Gottardo Construction Ltd., et al., 2011 ONSC 5933; and Donnelly v. Fraleigh (2001), 9 C.P.C. (5th) 271 (Ont. S.C.J.).
[59] As to security for costs, the motion is brought only as a tactical cross-motion in response to the plaintiffs’ motion to enforce the order made by Master Jolley. It is a potential rabbit hole to fight about the relationship between the claims and the counterclaims, the estimated trial length, and any number of other issues about the liability or quantum of security for costs.
Case Conferences
[60] Rule 50.01 sets out the dual purposes of case conferences as follows:
50.01 The purpose of this Rule is to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain from the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding, including orders or directions to ensure that any hearing proceeds in an orderly and efficient manner.
[61] Case conference are designed to try to help the parties settle any or all issues in the proceeding. For those issues that cannot be settled, then the court is to provide directions for the “least expensive disposition” ensuring an “orderly and efficient” process.
[62] My colleague Sanfilippo J. discussed the purpose of case conferences in the context of case management in 2676547 Ontario Inc. v. Elle Mortgage Corporation, 2020 ONSC 7566:
[8] In my view, case management is not about layering motion upon motion. Case conferences are designed to “provide an opportunity for any or all of the issues in the proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain form the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding”: Rule 50.01. Case management conferences provide a forum for the parties to raise and address issues that impact and impede the orderly progression of an action to trial and foster an environment where the parties’ may accomplish their common objective of steadfastly advancing this action toward adjudication or, if they so choose, resolution.
[9] The parties and their counsel are expected to cooperate on procedural and scheduling matters to ensure there is a fair and just process for all, consistent with Rule 1.04 and with the principles of proportionality, fairness and efficiency set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28: “The principal goal remains the same: a fair process that results in a just adjudication of disputes.”
[63] The expectation of cooperation is also not new in this court. Cooperation on procedural matters has been a guiding principle on the Commercial List for 30 years. There are few interlocutory motions in the most complex Commercial List matters. Process issues are usually required to be resolved by agreement or summarily at case conferences called “9:30 appointments”.
[64] The requirement to cooperate is also consistent with and, indeed, a part of the lawyers’ ethical obligation to fearlessly and zealously raise every issue, no mater how distasteful, that assist the client’s case. The rule actually provides:
5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.[^2]
[65] The first commentary under this rule discusses the duty of fearless representation and continues:
The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. [Emphasis added.]
[66] The lawyers’ duty as an advocate requires professional honour and a commitment to promote all parties’ right to a fair hearing. At para. 23, Hryniak confirms that the fairness of the resolution process is the first goal of civil justice. The Supreme Court emphasized that the fairness of the adjudication process cannot be compromised.
[67] If counsel think only of their own client’s goals at every procedural step, they risk imposing a system in which fairness can be compromised. The parties retain professional, experienced experts skilled and trained in advocacy and the law to honourably represent them in a fair fight. The alternative is trial by battle with the spoils going to the richest or the strongest. That is not fair civil justice.
[68] It must be recalled though, that as the Chief Justice of Ontario said in 2014, our commitment to perfect fairness at every step has led to an inaccessibly expensive and slow system. Those who value only “justice on the merits” ignore that there is no justice in a decision that is so expensive or so slow as to be unattainable or inaccessible. For that reason, the Supreme Court of Canada required a culture shift in which new, cheaper, faster, processes can apply as long as they do not impair the fairness of the dispute resolution process.
[69] Case conferences provide the key link between faster, more affordable process and fairness. Under Rule 50.13 (1) the parties or the court can convene a case conference at any time. Rules 50.13 (5) and (6) provide:
Matters to be Dealt With
(5) At the case conference, the judge or associate judge may,
(a) identify the issues and note those that are contested and those that are not;
(b) explore methods to resolve the contested issues;
(c) if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
(d) establish a timetable for the proceeding; and
(e) review and, if necessary, amend an existing timetable.
Powers
(6) At the case conference, the judge or associate judge may, if notice has been given and it is appropriate to do so or on consent of the parties,
(a) make a procedural order;
(b) convene a pre-trial conference;
(c) give directions; and
(d) in the case of a judge,
(i) make an order for interlocutory relief, or
(ii) convene a hearing.
[70] Subrule 50.13 (5) deals with the twin goals of case conferences: exploring settlement and establishing a process to deal with matters that remain in issue.
[71] Case conferences can deal with all procedural and scheduling issues. Ms. Assuras was well within her rights to raise trial management issues for the case conference. While ultimately premature for an order, an early start on trial management can lead to better trial time estimates and less difficulties with trial management later.
[72] Subrule 50.13 (6) provides the court’s authority to make orders at case conferences. Provided some notice is given, the court can make procedural orders and give directions at a case conference. In Hryniak, the Supreme Court of Canada anticipated that directions could be given in the lead-up to the hearing of summary judgment motions, including, for example, an order that a motion not be allowed to proceed at that time. (See paras. 70 to 72 of Hryniak). See also: Abrams v. Abrams, 2010 ONSC 2703, at para. 41 and CN v. Holmes, 2011 ONSC 4837, at para. 59,
[73] Under subrule 50.13 (6)(d), the court’s power to convene a hearing is an alternative to its authority to make an order for interlocutory relief.
[74] Rule 50.13 (6)(d) therefore anticipates orders being made summarily at case conferences without convening a formal hearing or undertaking the expensive procedural accoutrements of a motion under Rule 37. See: Hemmings v. Peng, 2019 ONSC 1937, at para. 28 and Chatham Street Realco (2102) Inc. v. Lalor et al., 2020 ONSC 5698.
[75] The notice requirement for a summary decision in a case conference is necessarily somewhat less formal than a motion by definition. However, basic fairness requires that before an order is made, the parties either consent or have some fair opportunity to make submissions. They need to know the issue that will be the subject of a possible order and they need the ability to make submissions on the topic (including on the appropriateness of proceeding summarily in the circumstances).
[76] I agree with and adopt the statement by J. Wilson J. in Gonsalves v. Kapetanos, 2021 ONSC 1329:
[19] In civil case conferences and pre-trials, judges routinely make procedural orders, with or without the consent of counsel, to ensure the matter will proceed appropriately. This includes appropriate interlocutory orders in the management of the file, having regard to principles of proportionality and the interests of justice.
Directions and Orders
[77] In my Triage Endorsement dated October 25, 2021, I gave notice to the parties about the possibility of orders being made at the case conference:
Counsel are on notice under R 50.13 (6) that I will consider making any scheduling order that will break through the current impasse and move this case forward duly. That may include scheduling motions or deferring proposed motions.
[78] Counsel prepared an issues list jointly that they presented to me in advance of the case conference. It included all of the points discussed so far except the difficulties being experienced by Ms. Assuras getting the plaintiffs to file corrected pleadings to allow the action to be set down. However, they did include the Nov. 1, 2021 email chain set out above in which Ms. Assuras asked Mr Banks about when he would have his clients’ last pleading corrected and filed.
[79] The parties knew the issues that were on the table. Counsel made submissions on the merits as well as on the process for resolution of the various issues.
[80] Motions are being scheduled before the Associate Judges in this region approximately eight months from now. Long motions before a judge here face the same backlog. Short motions can be heard in four months or so.
[81] I cannot imagine what would be gained of value to hold up this case from being set down, whether for eight months or four months, to seek an order to compel the plaintiff to do what it has already been ordered to do or to allow counsel to spend their clients’ money arguing about whether a slab of flooring is going to be produced here or in New Brunswick or who pays the costs of coming or going.
[82] This is a prime example of Chief Justice Strathy’s sentiment that perfect process can interfere with the quest for a just outcome. I am sure that capable counsel can come up with any number of interesting legal arguments as to the dividing line between Rules 30.04 (3) and 32.01 (3) and the principles of who should pay costs to move a piece of flooring here or pay for the defendants’ experts to go there. I am equally sure that the decision could not matter less whether arrived at by the longest, deepest, and fairest procedures imaginable or by me now.
[83] The only possible significance of the decision is that the plaintiffs might think that the defendants are financially strapped and may not invest in paying for a trip to New Brunswick for their experts. If the plaintiffs are trying to force a motion to increase the defendants’ costs to try to take advantage of their possible financial embarrassment, I invite them to re-read the discussion above about fairness of the legal process.
[84] Parties should expect case conference to be used to resolve summarily procedural issues with greater frequency. With current backlogs and resource limitations, there is simply no judicial time available to schedule short motions especially those which, like here, are tactical and do not advance the resolution of the case on its merits.
[85] In my view, having heard counsel, it is fair, appropriate, efficient, and cost effective to make the following determinations summarily and without formal motion materials or a formal motion hearing. None of these directions will impact or impair the fairness of the trial or the pretrial evidence collection processes.
[86] An order is to go as follows:
a. As agreed, the plaintiff will comply with the order made by Master Jolley (as she then was) dated November 23, 2020 by November 26, 2021. Compliance shall be full and complete in letter and in sprit;
b. By December 17, 2021, the plaintiffs will produce for inspection all flooring samples referred to in the report delivered from Dr. Thomas. Inspections are to occur during business hours at the offices of the defendants’ lawyers in Toronto. Any representatives of the defendants, their counsel, and experts whom the defendants wish to attend shall be accommodated subject to bona fide COVID-19 protocols limiting maximum numbers at any one time.
c. As the plaintiffs moved the samples out of Ontario, they should bear the cost to return them as they would have to do for trial in any event. This order is without prejudice to the plaintiffs’ entitlement at trial to argue for reimbursement of the costs to transport the samples back at this time.
d. The plaintiffs shall file all of their pleadings, bearing the correct title of proceedings, as plaintiffs and as defendants by counterclaim, by no later than November 30, 2021. (This should have been done long ago.)
e. If the plaintiffs fail to comply with any term of this order, I will hear a motion to dismiss their claims and to strike their pleadings to be scheduled at a case conference on notice.
[87] I would normally have directed the plaintiffs to set the action down for trial by a fairly tight deadline. However, Mr. Banks is content to leave the task to Ms. Assuras. The defendants appear motivated to get to trial and do not need an order to induce them to do so. The plaintiffs by contrast are being reactive. Their defamation claim and their security for costs cross-motion appear to be reactive afterthoughts. I am content therefore for the defendants to be counted upon to move the action forward.
[88] None of the foregoing issues, orders, and directions are affected by the plaintiffs’ alleged desire to bring a security for costs motion. Security for costs is an important and powerful tool. I would not prevent the plaintiffs from bringing a motion before an Associate Justice if they still intend to do so without it being a cross-motion. I am dubious of its value and wary of the risk of running up costs. But as long as it does not interfere with the action being set down and readied for trial, the plaintiffs will take their risks as they may be advised.
[89] I am not prepared to allow the existence of the proposed cross-motion to impair the ability of the parties to get the case on track to move towards trial. The plaintiffs sued in 2012. They have had ample time to move for security for costs if they felt the need to do so. The fact that they chose to try to bring their motion as a cross-motion is a tactic without substance.
[90] A motion for security for costs is brought before an Associate Justice. I leave it to the parties and Court Services to deal with scheduling the motion in due course if it is brought. The scheduling of the motion will not hold up the scheduling of the trial or the pretrial conference.
[91] While it is premature today for me to embark on trial management, it is never premature for the parties to do so. I don’t know why Mr. Banks thinks he can estimate the time needed by Ms. Assuras to examine her own witnesses. She may ultimately be bound by her final estimates in due course. But Mr. Banks has fairly, if rudely, alerted Ms. Assuras to his concerns. The expeditious and efficient process to move this case forward then, is for Mr. Banks to provide his own witness list and time estimates well before the pretrial conference.
FL Myers J
Date: November 16, 2021
[^1]: Quoted by Justice DM Brown in Commercial Litigation in the Next 10 Years A . Call For Reform, delivered at the 11th Annual Current Issues in Commercial Litigation Law Seminar of the Hamilton Law Association on February 24. 2016. at p. 8.
[^2]: Law Society of Ontario, Rules of Professional Conduct