Court File and Parties

COURT FILE NO.: CV-19-620913-0000 DATE: 20211005 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Lawyers’ Professional Indemnity Company, Plaintiff - and - Hanna Sochnyeva and Dmytro Sochnyev, Defendants - and - Her Majesty the Queen in Right of Ontario, Third Party

BEFORE: Mr. Justice Chalmers

COUNSEL: A. Moten, for the Plaintiff H. Sochnyeva and D. Sochnyev, acting on their own behalf No one appearing for the Third Party

HEARD: October 5, 2021, by teleconference

ENDORSEMENT

Overview

[1] The Plaintiff claims that the Defendant, Hanna Sochnyeva fraudulently conveyed property to Dmytro Sochnyev to evade creditors including the Plaintiff. The Statement of Claim was issued on May 31, 2018. The Statement of Defence of Dymtro Sochnyev was delivered on August 13, 2018, and the Statement of Defence of Hanna Sochnyeva was delivered on August 14, 2018.

[2] The Plaintiff requested this case conference for approval of a draft discovery plan and to establish a litigation timetable. Counsel for the Plaintiff states that since February 2020, he has tried to obtain the Defendants’ agreement to a discovery plan, but the Defendants have not provided any comments with respect to the draft discovery plans. He states that he sent 34 different e-mails or letters to the Defendants between February 26, 2020 and September 17, 2021, with no response.

[3] A case conference was also ordered with respect to two motions brought by the Defendants. The Defendants’ motion to strike the Plaintiff’s claim by reason of delay came before Myers, J. By endorsement dated November 4, 2020, he convened a case conference. The Defendants’ motion to strike the claim pursuant to R. 21 came before me in short motion triage. By endorsement dated June 25, 2021, I also convened a case conference. The case conference was scheduled for October 5, 2021.

[4] The Defendants brought a third motion on an urgent basis pursuant to R. 42 to set aside a Certificate of Pending Litigation. That matter came before Ramsay, J. in Civil Practice Court on July 20, 2021. She did not schedule the motion and referred the Defendants to Master’s Court (now Associate Judge’s Court). The Plaintiff’s motion to compel the Defendants to agree to a discovery plan came before Ramsay, J. at CPC on July 21, 2021. Again, the matter was referred to Associate Judge’s Court. The matters came before Master Brott to schedule a case conference. She ordered the parties to attend the case conference before me on October 5, 2021.

[5] On the case conference yesterday, there were three main issues:

• the Plaintiff’s proposed discovery plan, and litigation timetable;
• the Defendants’ motion to dismiss the action for delay; and
• the Defendants’ motion to strike pursuant to R. 21.

Analysis

i) Discovery Plan and Litigation Timetable

[6] The Plaintiff proposes the following discovery plan:

• exchange Affidavits of Documents by December 31, 2021;
• complete Examinations for Discovery by April 30, 2022;
• answers to undertakings by June 15, 2022;
• motions arising out of the discoveries by July 15, 2022;
• expert reports delivered by September 1, 2022; and
• responding expert reports by September 30, 2022.

[7] The Defendants did not object to the time limits. It is their position that there is no obligation on them to provide an Affidavit of Documents because any documents exchanged between them are privileged pursuant to the marital privilege set out in the Evidence Act. Without determining whether there is any validity to their claim of privilege, the Affidavit is to disclose all documents over which the party claims privilege in Schedule B of the Affidavit of Documents.

[8] The Defendants are required to list all relevant document in their Affidavit of Documents. For those documents over which they claim privilege, the documents must be listed in Schedule B. After the exchange of Affidavits of Documents, the Plaintiff may take issue with any claims of privilege asserted by the Defendants. I modify the proposed discovery plan/litigation timetable to provide that any motion arising out of the Affidavit of Documents is to served within 30 days of the Plaintiff’s receipt of the Affidavits of Document and in any event, no later than January 31, 2022. Subject to the availability in the Associate Judge’s Court, the motion is to be heard before the discoveries which are to be completed by April 30, 2022.

[9] I also modify the discovery plan to provide for a mediation by November 30, 2022 and that the Plaintiff is required to set the action down for trial by December 31, 2022.

ii) The Defendants’ Motions

[10] The Defendants’ position with respect to the motion to dismiss for delay is not clear. They argue that the action ought to be dismissed because the Plaintiff failed to deliver a discovery plan within 60 days of the close of pleadings pursuant to R. 29.1.03, and because no pre-trial conference was conducted within 180 days after the action is set down for trial pursuant to R. 50.02(1). The action has not been set down for trial and therefore R. 50.02 does not apply. In any event, those Rules do not provide that the action is to be struck if the time limits are not met.

[11] I am satisfied that the Plaintiff tried to obtain the approval of the Defendants to the draft discovery plan, but the Defendants failed to respond. The Defendants cannot fail to respond to a proposed discovery plan and then argue that the action ought to be dismissed because the Plaintiff did not file a discovery plan. I am not prepared to schedule a motion to dismiss the action for delay at this time. This is without prejudice to either party bringing a motion for delay if any party fails to comply with the timelines set out in this endorsement.

[12] The Defendant, Hanna Sochnyeva also wishes to schedule a motion pursuant to R. 21 to strike the Statement of Claim. In the Notice of Motion, the Defendant states that the claim does not disclose any cause of action. Other than a bald statement that the allegations are ridiculous or incapable of proof, no particulars are provided. In the supporting affidavit, Ms. Sochnyeva states that the Plaintiff is pursuing claims against her family and therefore the action ought to be brought in the Family Court of the Superior Court of Justice. This is not a valid basis to dismiss an action pursuant to R. 21.

[13] I am of the view that the Defendant’s motion pursuant to R. 21 will not move this matter forward. Even if the Defendant’s motion is successful, the likely outcome is to provide leave to amend the claim. I adopt the dicta of Myers, J. in Abu-Hmaid v. The Childrens Aid Society of Toronto, (CV-21-00668091, unreported September 21, 2021):

But, if the matter plaintiff’s right to sue is unclear, then the motion will just result in an order allowing the plaintiff to amend his claim. One thing that is perfectly clear is that the Court of Appeal has precluded judges from denying leave to amend in all but the clearest cases. In the result, this lawsuit is either very ill-conceived or the motion is just an effort to “try one on” and, ultimately, will just teach the plaintiff how to plead better. In either case, in light of the pandemic and strained judicial resources, it is not efficient, affordable or proportional to allow a Rule 21 motion process for this matter. The defendant should plead and bring a motion for summary judgment if it is so advised. Otherwise, it is free to convene a case conference to try to satisfy a judge that the question is so clear as to reasonably be dealt with at a pleadings motion that is not just a manifestation of the Toronto Motions Culture.

[14] On the case conference yesterday, the Defendant failed to establish that the deficiencies with the Statement of Claim are so clear as to be reasonably dealt with at the pleadings stage. In fact, on my review of the Claim, the Defendants’ motion is unlikely to succeed. The motion appears to fall in the category described by Myers, J. as an effort to “try one on” or is an attempt to delay the action. I exercise my gatekeeper function and decline to schedule the motion at this time. This is without prejudice to the Defendants proceeding with a Rule 21 motion. However, even if such a motion is brought, the timelines set out in this endorsement shall continue to apply.

[15] With respect to the Defendants’ motion to set aside the CPL, the Defendants may schedule the motion in the ordinary course in the Associate Judge’s Court. If such a motion is brought, the timelines set out in this endorsement shall continue to apply.

Disposition

[16] I make the following order:

a. The discovery plan is approved, and the following litigation timetable is established:

• exchange Affidavits of Documents by December 31, 2021;
• motions arising out of the Affidavits of Documents to be brought within 30 days of receiving the Affidavit of Documents and in any event no later than January 31, 2022;
• complete Examinations for Discovery by April 30, 2022;
• answers to undertakings by June 15, 2022;
• motions arising out of the discoveries by July 15, 2022;
• expert reports delivered by September 1, 2022;
• responding expert reports by September 30, 2022
• mediation to be conducted by November 30, 2022; and
• Plaintiff to set the action down for trial no later than December 31, 2022.

[17] Order to go in accordance with the draft Order filed and signed by me.

[18] Costs of this case conference are reserved to the Trial Judge.

DATE: October 6, 2021