Court File and Parties

COURT FILE NO.: CV-13-488748, CV-13-488119, CV-11-442307, and CV-13-488659 DATE: 2021-12-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Whitty et al. Plaintiffs -and- Wells et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: V. Zbogar and R. DiGregorio, for the Plaintiffs J. Dais-Visca and W. Wright, for the Defendants

HEARD: December 20, 2021

CASE CONFERENCE ENDORSEMENT

[1] By order dated August 17, 2021, Dunphy J. scheduled competing cross-motions to be heard before a judge on February 23, 2022. In their cross-motions, each side seeks to sanction the other for alleged misconduct in the prosecution or defence of these actions.

[2] Under the schedule as ordered, the plaintiffs’ two sets of motion materials were due to be served on the defendants’ lawyers on November 5, 2021.

[3] Mr. Zbogar advises that he served one set of material after 4:00 p.m. on November 5, 2021. It was therefore late. The other set of material was delivered two days late – so I assume it was delivered Monday Nov. 8, 2021 or Tuesday Nov. 9, 2021.

[4] Mr. DiGregorio, as agent for Mr. Zbogar, submits that the defendants’ counsel will not consent to the late delivery of the material so the plaintiffs require a motion to regularize their delivery of their motion records.

[5] Ms. Dais-Visca submits that the plaintiffs’ continued disregard of court orders is part of the misconduct that the defendants have raised on their motion. The defendants argue that the plaintiffs have made repeated efforts to erode the defendants’ lawyer-client privilege and informant privilege that apply in this case. The defendants fear that the plaintiffs will be allowed to ignore a court order again as they have been many times already. Ms. Dais-Visca argues that orders are not “paper tigers”. The administration of justice requires that scheduling orders be followed.

[6] Ms. Dais-Visca acknowledges that the defendants are not arguing that they suffered any prejudice by the late delivery of materials. But, she also advises that the defendants discovered on November 5, 2021 that Mr. Zbogar had been administratively suspended for non-payment of fees by the Law Society of Ontario from September 28, 2021 to November 5, 2021. She says that he did not advise the public (or counsel opposite) of his suspension through the appropriate means. He allegedly dealt with Ms. Dais-Visca or her colleagues about the case while he was suspended. Moreover, he prepared his clients’ materials, it appears, while suspended. This may have some bearing on why the materials were delivered late.

[7] The defendants’ counsel have detailed these issues in a supplementary affidavit that they have delivered. They have advised the plaintiffs’ counsel that they intend to argue at the return of the cross-motions that the late materials should not be admitted. But they are content that the materials be filed and be subject to cross-examinations in the lead-up to the hearing of the cross-motions.

[8] This is not satisfactory to Mr. Zbogar. He submits that the plaintiffs need the defendants to consent to the late filing of the material and to consent to the motion being heard on February 23, 2022. Mr. Zbogar reiterates that a motion is required to regularize the hearing of the main cross-motions.

[9] Ms. Dais-Visca is prepared to consent to the late filing but with a reservation of rights to ask the judge at the hearing to reject the late material just as one would ask for evidence to be excluded due to admissibility issues for example.

[10] Mr. DiGregorio responds that procedural fairness demands that the defendants be required to bring a motion to exclude the evidence in advance of the hearing of the main cross-motions.

[11] The plaintiffs therefore wish to schedule a motion to amend the scheduling order made by Dunphy J. The defendants might choose to respond with a cross-motion to exclude the late-filed evidence from the hearing.

[12] As the parties cannot agree on a process to deal with their procedural issues, I grant leave to the plaintiffs to move to amend the schedule set by Dunphy J. to allow them to deliver their materials late. If the defendants wish to do so, I also grant leave to them to move to exclude the late-filed material.

[13] These types of motions – motions within motions – have been dubbed “meta-motions” by Perell J. The proposed meta-motion(s) will involve issues concerning compliance with scheduling orders and possibly with the effects, if any, of the administrative suspension of a lawyer on a court-ordered schedule. There may also be an issue as to whether bringing a meta-motion to exclude evidence is appropriate or if evidentiary and process issues regarding the submission of evidence should be dealt with at the main hearing.

[14] The meta-motion(s) must be made before a judge because they involve the amendment of a schedule ordered by a judge and perhaps admission of evidence on a hearing before a judge.

[15] I cannot tell if the meta-motion(s) will take more than two hours in the aggregate. So I do not know if a long motion date is required or if a short motion date will do. Counsel can make submissions on the likely hearing time required for the meta-motion(s) either in proceeding to obtain a date through short motion triage under s. C.1.5 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic or in proceeding to obtain a date for a long motion by attending Civil Practice Court under s. C.1.6 of that Notice to the Profession.

[16] It is clear to me that contested steps will be needed to bring the proposed meta-motions. The plaintiffs need to bring their meta-motion to extend the schedule as ordered by Dunphy J. The defendants need to decide if they will move to exclude the late-filed evidence, as invited by the plaintiffs’ counsel, or risk being met with a procedural fairness argument when they raise the question of admissibility at the main hearing. I expect there to be cross-examinations at least by one side if not both. My experience as the case management judge in this matter suggests that there are very likely to be refusals involving Mr. Zbogar’s administrative suspension and his conduct while suspended.

[17] It is equally clear to me that preparation of these proposed meta-motions leaves no time for the scheduled completion of preparations for the main cross-motions for the hearing scheduled on February 23, 2022. Moreover, in light of the parties’ respective implacable positions, it is undesirable to force them on with the main cross-motions before their procedural rights are fully determined.

[18] Court time is too scarce to leave a motion scheduled when it is not likely to be ready for hearing. Accordingly, I vacate the hearing date of February 23, 2022 pending the outcome of the meta-motion(s) proposed to regularize the filing of material for the two cross-motions. Counsel are directed to proceed with scheduling the meta-motions under the Notice to the Profession as discussed above. Once the meta-motions are completed, and all appeals exhausted, the cross-motions can be scheduled again in Civil Practice Court.

[19] These actions involve events that occurred about ten years ago. I have been case managing them for several years. Last June, counsel advised me of a string of motions that each side sought to bring (including the cross-motions that were scheduled by Dunphy J.). At the time, I wrote:

…These cases have used more than their fair share of court resources. None of the process issues that follow is productive or likely to change anything substantively. They will cost the parties a lot of money and delay the trial at least six months and more if there are further appeals. Although I thought I might hear some of these proposed proceedings, I am not going to hear any of them…Neither side seeks timely, affordable civil justice on the merits.

FL Myers J

Date: December 20, 2021