Court File and Parties

COURT FILE NO.: CV-16-554846 MOTION HEARD: 20220217 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shmuel Gedalevitch also known as Samuel Gedalevitch and Tova Gedalevitch, Plaintiffs AND: Piotr Kuczk also known as Peter Kuczak and Agata Krys-Kuczak, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Jonathan Weingarten, Counsel for the Moving Party Plaintiffs Piotr Kuzk and Agata Krys-Kuczak Responding Party Defendants in person

HEARD: February 17, 2022 by ZOOM

Endorsement

[1] The plaintiffs bring this motion for an order directing that the action shall not be dismissed for delay pursuant to Rule 48.14(7) and a timetable for the action.

[2] The defendants oppose this motion. They appeared in person with their son who provided translation services. They rely on their joint affidavit in this matter sworn February 11, 2022. The defendants do not take issue with the timetable proposed by the plaintiffs in the event that I allow the matter to proceed. In particular, they are agreeable to the deadline for the completion of the discovery of the plaintiffs by June 1, 2022.

[3] This action was commenced in 2016. The parties have exchanged affidavits of documents and some examinations for discovery have taken place. The most recent examination for discovery took place on March 4, 2020. An examination for discovery scheduled for March 10, 2020 was cancelled. The plaintiffs have attempted to set up discoveries via many email communications with the defendants’ lawyer and the defendants since March 9, 2020. On November 24, 2020, the defendants’ lawyer advised that his clients were not prepared to proceed in person because of the pandemic. When the plaintiffs’ lawyer suggested a ZOOM discovery, the defendants’ lawyer indicated that the examinations should be in person because of language difficulties. In addition, the defendants’ lawyer asked that additional documents be provided prior to further discoveries. In response to a follow-up email on August 11, 2021 from the plaintiffs’ lawyer again seeking dates for examinations, on August 26, 2021, the defendants’ lawyer forwarded a notice of intent to act in person on behalf of the defendants dated April 27, 2021.

[4] Following receipt of the notice to act in act in person, the plaintiffs’ lawyer wrote to the defendants on September 3, 2021, requesting dates for the completion of the examinations for discovery. He followed up on September 22, 2021 and October 6, 2021 when no response was received. The defendants responded on October 7, 2021 refusing to provide dates saying that the “time limitation 5 years has already passed in June.” In addition, they were waiting for further documents from the plaintiffs before agreeing to new discovery dates.

[5] On October 26, 2021, the plaintiffs’ lawyer advised that his clients were waiving their right to complete the examinations of the defendants and proposed a timetable for the remaining steps in the action, including completing the examinations for discovery of the plaintiffs by the defendants. He requested a response by October 29, 2021, failing which the plaintiffs would bring a motion for a status hearing. The plaintiffs booked this motion on November 4, 2021.

[6] The defendants oppose the motion on a number of grounds. The defendants say that the plaintiffs’ request for a timetable on October 6, 2021 came after five years had elapsed since the action was commenced. However, in taking that position the defendants were unaware that time periods had been extended because of the pandemic such that the expiry of the five year period was not June 15, 2021 as they believed, but rather December 14, 2021. The plaintiffs booked the motion prior to December 14, 2021.

[7] The defendants also oppose on the basis that they have been waiting for additional documents from the plaintiffs. They say that the documents should have been provided before they attended the continued discoveries. However, the defendants did not bring a motion for production of documents. The defendants also argue that the plaintiffs have failed to provide documents establishing a part of the plaintiffs’ case. However, whether or not the plaintiffs can prove their claim is a matter for trial.

[8] In addition, the defendants say that there have been periods of time when the plaintiffs have not moved the file forward. From the limited record before me, it does appear some of the delay prior to March 2020 was because the plaintiffs were not moving the file forward at times due to personal reasons of counsel and scheduling issues on the part of the plaintiffs. However, I do not have a full record and some of the delay prior to March 2020 may be attributable to the defendants, or simply as a result conflicting schedules. However, by March 2020 the matter had progressed to the extent of exchanges of documents and completion of some discoveries. Since that time, the plaintiffs have repeatedly followed up with the defendants’ lawyer and the defendants to set dates for the completion of discoveries without success. I am satisfied that any delay on the part of the plaintiffs is more than offset by the defendants’ refusal to provide discovery dates. In saying this I am not criticizing the defendants for not wishing to attend discoveries in person during the pandemic and insisting on in person discoveries because of language difficulties. What I am saying, is that the plaintiffs cannot be blamed for this delay.

[9] The test that the plaintiffs must meet to obtain the requested relief is set out in Faris v Eftimovski, 2013 ONCA 360 where the Court of Appeal stated:

32 The plain wording of rule 48.14(13) makes clear that the onus is on the plaintiff to demonstrate why the action should not be dismissed for delay. The test, as stated by the status hearing judge in the case at bar, requires the plaintiff to demonstrate that there was an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice: Khan v. Sun Life Assurance Co. of Canada, 2011 ONCA 650 (Ont. C.A.), at para. 1.

33 Since the purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner, imposing the onus on the plaintiff to show cause why the action should not be dismissed for delay is fair. This court has held that the responsibility to move the action along lies chiefly with the plaintiff. Accordingly, the plaintiff also bears the consequences of conducting its action in a dilatory manner: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555 (Ont. C.A.), at para. 48.

[10] I am satisfied that the plaintiffs have met their onus demonstrating why this action should not be dismissed for delay. The plaintiffs have tried to move the matter forward since March 2020. But for the defendants’ concerns about appearing in person for discovery and their refusal to book the balance of the examinations prior to receipt of documents, the plaintiffs would very likely have been able to set the matter down for trial without this motion. I am satisfied that the defendants will not suffer any non-compensable prejudice. Indeed, the defendants did not argue prejudice. The action has moved forward and some examinations have taken place and affidavits of documents have been exchanged. Under the proposed timetable, the defendants will be able to complete the discovery of the plaintiffs.

[11] In his email of November 20, 2020, plaintiffs’ counsel advised that he has gathered additional documents which he would send to the plaintiffs in advance of the continued examinations. There is no indication in the material before me that the additional documents have been provided to the defendants. I have incorporated a date for the plaintiffs to provide a supplementary affidavit of documents. If the defendants are not satisfied with the supplementary affidavit of documents, they may seek production of additional documents on the continued discovery and may move for further production.

[12] The plaintiffs’ motion is granted and the following timetable shall apply to this action:

a. Plaintiffs to deliver supplemental affidavit of documents by March 23, 2022 b. Examinations for discovery of plaintiffs by defendants by June 1, 2022 c. Undertakings and questions taken under advisement that the plaintiffs agree to provide to be answered by plaintiffs within 45 days of completion of the examinations for discovery by the defendants d. Motions for refusals and production of further documents to brought within 45 days of the deadline for answering undertakings (subject to court availability) e. Mediation to be completed by September 15, 2022 f. Matter set down for trial by November 15, 2022

[13] The timetable may amended on consent, provided that the set down date for trial may only be varied by court order.

[14] The plaintiffs seek costs of the motion. They have not filed a costs outline, but rather leave the quantum to my discretion should I decide to award costs. The defendants seek their costs. In all of the circumstances of this motion, I am of the view that no costs should be awarded for this motion.

[15] Counsel for the plaintiffs shall prepare an order in accordance with this endorsement. Approval as to form and content by the defendants is dispensed with.

L. La Horey, A.J. Date: February 23, 2022