Court File and Parties

COURT FILE NO.: CV-19-00631377 DATE: 2021-12-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tom Rossi, Plaintiff AND: Sanna Health Corp., Rino Adamo, Aleks Stosic and Garry Siskos, Defendants

BEFORE: D. Wilson J.

COUNSEL: Paul Schwartzman, for the Plaintiff Jason J. Jagpal and Ryan Watkins, for the Defendants

HEARD: December 16, 2021

Endorsement

[1] This is a claim for wrongful dismissal by Mr. Rossi, the former President and CEO of the Defendant Sanna. He was terminated in September 2019 and disputes his dismissal was for cause; he brought this lawsuit for damages in November 2019.

[2] The action proceeded in the normal course, through productions, examinations for discovery and mediation in February 2021. Justice Dunphy ordered the matter proceed by way of a hybrid trial and it was set down in March 2021. Counsel attended before me in June 14, 2021 and set a consent trial date for January 10, 2021 with a pretrial conference on November 10, 2021. At the pretrial, Justice Akbarali ordered the evidence in the trial be provided through Affidavits to be delivered by December 10, 2021.

[3] On November 19, 2021, the solicitors for the Defendants sought an urgent date for the hearing of a motion to be removed as counsel of record. The motion was served on the Plaintiff’s counsel on November 23, 2021. Given the fixed trial date, I agreed to hear the motion today. The Plaintiff filed a responding record including the affidavit of the Plaintiff sworn December 2, 2021. In attendance at the motion were 2 of the named Defendants as well as Ms. Coppens the CEO of AgraFlora Organics International Ltd.. The latter company acquired Sanna through a share purchase in March 2020. It has been confirmed that any judgment against Sanna will be binding on AgraFlora.

[4] The Plaintiff opposes any adjournment of the trial date but takes no issue with the motion to remove counsel. Mr. Rossi in his affidavit deposes a history of delay on the part of Sanna as well as prejudice if the trial is adjourned. He states that he has not received any form of severance from the Defendant nor the minimum entitlements set out in the legislation. Only recently has he found new employment and he has been without employment income since September 2019. Mr. Rossi’s affidavit suggests that the Defendants have failed to cooperate at various steps in this litigation, making it an arduous process.

[5] Ms. Coppens attended the motion. She did not oppose the removal of Whitten Lublin from the record and confirmed that AgraFlora has not retained the firm to represent them in this action. She seemed to know little about this lawsuit and submitted that the Defendants required an adjournment to find new counsel. When I inquired why new counsel were not present today, there was no satisfactory answer.

[6] I have read the affidavit of Stephanie Reid submitted in support of the motion to remove counsel from the record. It is clear that in October 2019 the Whitten Lublin firm was retained on behalf of all Defendants. There have been issues with respect to payment of accounts going back to February 2021 when the mediation was held. These issues have escalated since the pretrial conference and counsel has been unable to obtain instructions nor have they received the requested retainer. Ms. Coppens made it clear that she does not wish to continue the retainer of Whitten Lublin. I am satisfied that an order must be made removing the Whitten Lublin from the record. As I advised counsel, it is less than satisfactory when a motion to remove counsel is brought shortly before trial. In my view, this motion should have been brought earlier on, prior to the pretrial conference. At the very least, the issue of counsel not continuing on should have been raised with the pretrial judge.

[7] However, it is clear to me that things changed after the purchase of the shares of Sanna by AgraFlora; Mr. Sawyers who had provided instructions to counsel for the Defendants was no longer in a position to do so and it is unclear what, if any, instructions have been provided to counsel since the pretrial conference was conducted. The Defendants and now AgraFlora have been aware of the fixed date for trial since it was fixed by me in June 2021. They appear to have ignored the approaching trial date; they failed to provide instructions to their existing counsel and they failed to secure new counsel.

[8] I am not prepared to adjourn the trial date; to do so would be unfair to the Plaintiff, who is ready to proceed to trial and has been without income since he left Sanna in September 2019. He is entitled to a timely adjudication of this lawsuit. The corporate Defendant has been aware of the trial date for months and has failed to respond to requests for payment of accounts and for instructions from its counsel. It is not acceptable to use the removal of counsel from the record as a way to adjourn a trial date.

[9] The Whitten Lublin firm shall be removed as counsel of record for the Defendants. Counsel shall forward an order for my signature. I decline to adjourn the trial date of January 10, 2022. The corporate Defendant has not complied with the order of Justice Akbarali requiring the serving of Affidavit evidence by December 10, 2021. That is to be remedied forthwith. If the Defendants intend to have counsel represent them at trial, a Notice is to be filed with the Court forthwith.

[10] The Rules of Civil Procedure provide that a corporation shall appoint a new lawyer within 30 days. Given the proximity of the trial date, I order that Sanna shall appoint a new lawyer within 10 days.

Date: December 17, 2021