Court File and Parties

COURT FILE NO.: CV-12-00463452

DATE: 20210720

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ANTONIO SWAMINATHAN Plaintiff

AND:

DEGNALL, JOHN DOE and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: M. Henry, for the Plaintiff

A. Swaminathan, personally

S. Smith, for the Defendants

HEARD: July 20, 2021

By Teleconference

Endorsement

[1] The Defendants’ motion to enforce a settlement is scheduled to be heard on August 23, 2021.

[2] Counsel for the Plaintiff stated that he intends to bring a motion to be removed as solicitor of record. In my endorsement dated June 23, 2021, I stated that I would be prepared to deal with the removal motion in writing if there was consent. Mr. Swaminathan is not prepared to consent to the motion. It is his position that he is entitled to further information from his lawyer with respect to the fees. It is my view that the removal issue and the assessment of the lawyer’s fees are two separate issues. In any event, in the absence of consent, I am not prepared to deal with the issue in writing and as a result, it will be necessary to schedule an oral hearing.

[3] At the case conference today, counsel advised that the Plaintiff is an undischarged bankrupt. He was declared a bankrupt in 2012. There has been no order to continue. Counsel for the Defendant argues that no further steps in the proceedings can take place until there is an order to continue. In light of the allegations made by the Plaintiff against his counsel, it would not be appropriate for counsel to file an order to continue at this time. Counsel for the Defendants stated that she may wish to make submissions on the issue, given the fact that each step in the proceeding has arguably been a nullity. It will be necessary that this issue also proceed to an oral hearing.

[4] I schedule the motion for the removal of counsel for the Plaintiff and the order to continue to be heard at the same time as the motion to enforce the settlement which is scheduled for August 23, 2021. The order of the motions will be, first the order to continue, then the removal motion followed by the motion to enforce the settlement. Mr. Swaminathan was advised that he is to be prepared to argue the motion to enforce the settlement either in-person or with new counsel in the event Mr. Henry is successful in his motion to be removed as solicitor of record.

[5] The following timetable applies for the motion to enforce the settlement. Any material to be used on the motion for the order to continue and the removal motion is to be delivered by July 26, 2021. The dates for cross-examinations and the delivery of the factums apply to all three motions. The timetable is as follows:

(a) The motion material was delivered in October 2020;

(b) Responding materials to be delivered by July 23, 2021;

(c) Case conference on July 20, 2021, at 9 am;

(d) Cross-examination on affidavits, if any, to be completed by July 30, 2021;

(e) Moving party’s factum to be delivered by August 6, 2021;

(f) Responding factum to be delivered by August 13, 2021;

(g) Reply Factum, if any, to be delivered by August 18, 2021; and

(h) Hearing scheduled on August 23, 2021 for a half-day.

[6] I remain seized.

DATE: JULY 20, 2021