COURT FILE NOS.: CV-19-142842, CV-19-142791, CV-19-143075, CV-19-617693 and CV-20-1074
DATE: 20211221
SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-19-142842
RE: Gaurav Tewari, Plaintiff
AND:
Murali Sundar, Suma Devassy, Ranjeet Klair, Lisa Moeller, William [Bill] Scott, Koshal Ram, Somanna and Jeff Wilson, Defendants
COURT FILE NO.: CV-19-142791
AND RE: Gaurav Tewari, Plaintiff
AND:
Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh
COURT FILE NO.: CV-19-143075
AND RE: Gaurav Tewari, Plaintiff
AND:
Aditya Vikram Singh, Defendant
TORONTO COURT FILE NO.: CV-19-617693
AND RE: Gaurav Tewari, Plaintiff
AND:
Marcatus QED Inc., Defendant
COURT FILE NO.: CV-20-1074
AND RE: Gaurav Tewari, Plaintiff
AND:
Gagan Sekhon and Sekhon Law Office, Defendants
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Dr. Gaurav Tewari, Self-Represented Plaintiff in all actions
Bobby H. Sachdeva, Counsel for the Defendants (CV-19-142842), Murali Sundar, Suma Devassy, Ranjeet Klair, Lisa Moeller, William [Bill] Scott, Koshal Ram, Somanna and Jeff Wilson
Bobby H. Sachdeva, Counsel for the Defendants (CV-19-142791), Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh
Bobby H. Sachdeva, Counsel for the Defendant (CV-19-143075), Aditya Vikram Singh
Bobby H. Sachdeva, Counsel for the Defendant (CV-19-617693), Marcatus QED Inc.
Peter A. Downard and Rachel Laurion, Counsel for the Defendants (CV-20-1074), Gagan Sekhon and Sekhon Law Office
CASE CONFERENCE HELD: December 21, 2021
ENDORSEMENT
[1] A case management conference was held today to deal with several procedural issues relating to these actions.
A. Consolidated Actions
[2] The first case conference dealt with the actions consolidated in my endorsement of November 25, 2021 (CV-19-142842, CV-19-142791, CV-19-143075 and CV-19-617693) (Tewari v. Sundar, 2021 ONSC 7780). I will refer to these actions as the “consolidated actions”.
[3] The plaintiff has proposed a schedule for his motion for summary judgment. He has also requested an order to prevent one of the defendants, Aditya Vikram Singh, and a second non-party, from testifying because, he alleges, they are not credible witnesses. He has also asked for an order to prevent the defendants from mentioning an 18 year old “dismissed criminal matter” in any of their submissions.
[4] I explained to the plaintiff that the court does not assess credibility before a witness testifies and has no authority to prevent a party or witness from testifying on this basis. Any concerns about the relevance of the dismissed criminal matter will have to wait until the defendants make reference to it in their affidavit materials.
[5] Before establishing a schedule for a motion for summary judgment, there remains an outstanding issue relating to the dismissal of the plaintiff’s motion for default judgment against one of the defendants that, in my view, should be resolved before any motion for summary judgment proceeds.
Dismissal of Plaintiff’s Motion for Default Judgment
[6] The plaintiff has commenced two substantially identical proceedings against the defendant Aditya Vikram Singh.
[7] In Action # CV-19-143075, the plaintiff alleges that he was wrongfully dismissed “due to the pre-meditated conspiracy by Aditya Vikram Singh with others in company”. In my November 25, 2021 Endorsement I referred to this action as “Action #3”, and I will use that reference in this Endorsement. The plaintiff also alleges that Aditya Vikram Singh is liable for damages of $250,000 for defamation for his involvement in the counterclaim in Action # CV-19-617693.
[8] In Action # CV-19-142791, the plaintiff sued Aditya Vikram Singh as well as Aditya’s wife Roshni Singh and Aditya’s father-in-law, Lal Bahadur Singh. In my November 25, 2021 Endorsement I referred to this action as “Action #4”, and I will use that reference in this Endorsement The claim against Roshni Singh and Lal Bahadur Singh relates to an alleged $8,000 loan. The remainder of the claim in Action # 4 is against Aditya Vikram Singh for conspiracy and defamation, and is identical to the claim in Action #3.
[9] While Mr. Singh did file a Statement of Defence in Action #4, through inadvertence he did not file a Statement of Defence in Action #3, and was noted in default on January 15, 2020. The plaintiff moved for default judgment against Mr. Singh in Action #3, seeking damages in the amount of $600,000.
[10] On July 16, 2020, the plaintiff’s motion for default judgment was dismissed by Cameron J. (2020 ONSC 4361) on the basis that there was no evidence in the motion material that Mr. Singh had participated in a conspiracy to have the plaintiff terminated from his employment. She stated:
All of the allegations of conspiracy leading up to the plaintiff’s termination relate to other employees of the business…Any alleged conspiracy on the part of Mr. Singh occurred after the plaintiff was dismissed therefore Mr. Singh cannot have contributed to the plaintiff’s dismissal, wrongful or not.
[11] Cameron J. also concluded that there was no evidence that Mr. Singh had made defamatory comments about the plaintiff, and therefore “the plaintiff’s claim for defamation is not supported in fact or law”.
[12] Cameron J. dismissed the plaintiff’s motion for default judgment.
[13] Following Cameron J.’s decision, the plaintiff brought the same motion again (he refers to it as a “supplementary default motion”) with what he argues is better supporting material. The defendant responded with a cross-motion to dismiss the plaintiff’s “supplementary default motion” based on res judicata, and, if necessary, a motion under Rule 59.06 to clarify the Court’s July 16, 2020 Order. Those motions were scheduled for January 27, 2021, but the plaintiff adjourned the motions due to the death of his brother, and it has not been rescheduled.
[14] Rule 19.05(3) of the Rules of Civil Procedure provides that where a defendant has been noted in default and the plaintiff moves before a judge for judgment against the defendant, “the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented”.
[15] The Order of Cameron J. did not specify whether she was dismissing the action or ordering that the action proceed to trial. The defendant argues that this was just an oversight on the Court’s part. Read in context, the dismissal of the motion for default judgment was based on the underlying legal frailties in the plaintiff’s case, and should be interpreted as a dismissal of the plaintiff’s action against Mr. Singh.
[16] Since the action against Mr. Singh is identical in Actions #3 and #4, a dismissal of the action against Singh in Action #3 would necessarily apply to Action #4. If the actions against Singh have already been dismissed, they cannot be included in any motion for summary judgment.
[17] The plaintiff argues that since Cameron J. did not dismiss his action or order that it proceed to trial, his motion for default judgment was dismissed without prejudice to his right to bring the motion again on a better record.
[18] It does appear that the failure to specify the consequences of the dismissal of the motion for default judgment in accordance with Rule 19.05(3) was an oversight to which Rule 59.06(1) might apply: King Road Paving and Landscaping Inc. v. Plati, 2017 ONSC 6319, at paras. 19-20.
[19] As a general rule, motions under Rule 59.06(1) should, where possible, proceed before the judge who made the original order, since that judge is in the best position to know whether there was an error arising from an accidental slip or omission, and, if the order requires amendment or clarification, what the corrected order should state.
[20] Accordingly, I have scheduled these motions to be heard by Cameron J. on February 10, 2022, at 9:30 a.m. I am advised that the parties have already filed their material in relation to that motion, although certain amendments may have to be made to reflect subsequent events.
[21] If the result of the motion on February 10, 2022 is that the action against Mr. Singh is dismissed, that, subject to any right of appeal, will bring that action to an end.
[22] I note that if the action against Mr. Singh is not dismissed, it would appear that, given the consolidation of Actions #3 and #4, Mr. Singh can no longer be in default in Action #3, since his Statement of Defence in Action #4 would necessarily apply to Action #3.
[23] Counsel for the defendants in the consolidated actions has also indicated his intention to bring a motion for security for costs pursuant to Rule 56.01(e) of the Rules of Civil Procedure. That motion may also proceed on February 10, 2022. The defendants shall serve their motion material in support of that motion by January 10, 2022.
[24] Once the Court releases its decision with respect to the February 10, 2022 motions, the parties may contact my assistant to arrange a case management conference to discuss next steps.
B. #CV-20-1074
[25] The second case conference dealt with Tewari v. Sekhon and Sekhon Law Office, #CV-20-1074.
[26] In my Case Conference Endorsement of October 25, 2021, I scheduled the defendants’ motion to strike the claim under Rule 21 for January 7, 2022.
[27] The plaintiff seeks to examine two non-parties to that action in advance of the motion. One of these non-parties is Aditya Vikram Singh. The plaintiff is also requesting the disclosure of certain documents.
[28] The defendants’ motion to strike is brought under Rule 21.01(1)(b). They argue that the plaintiff’s Statement of Claim discloses no cause of action. On a motion to strike under Rule 21.01(1)(b), the court must accept the facts alleged in the Statement of Claim as proven, unless they are patently ridiculous, or incapable of proof.
[29] Rule 21.01(2)(b), provides that no evidence is admissible on a motion to strike under Rule 21.01(1)(b). Given that the allegations in the Statement of Claim are accepted on a motion to strike under Rule 21.01(1)(b), there is no reason why the plaintiff would require evidence on such a motion.
[30] Accordingly, there is no basis to entertain the plaintiff’s request to examine witnesses or disclose documents prior to the hearing of the defendant’s motion to strike.
Justice R.E. Charney
Date: December 21, 2021