Court File and Parties

COURT FILE NO.: CV-15-521830 DATE: 20220413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Omar M. Kalair, Plaintiff AND: Mayuresan Thavarajah and Thavarajah Rajaratnam, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Ryan Naimark, for the Plaintiff Patricia Hill, for the Defendants Peter Waldmann, for the Plaintiff in the defamation action

HEARD via telephone: April 13, 2022

Endorsement

[1] This is a claim for damages arising from a motor vehicle accident that occurred in 2013. It is fixed for trial to commence in the jury sittings in June 2022. Counsel for the Defendant requested a case conference as she wishes an adjournment of the trial date. As a result, today’s case conference was convened.

[2] Ms. Hill submits that the trial must be adjourned because the defence just learned a couple of weeks ago that the Plaintiff has a defamation claim against the Globe and Mail newspaper which arises from the coverage of criminal charges against him in the same time frame as the motor vehicle accident. While the defence was aware of the criminal charges and asked questions arising from them at the discovery, those questions were refused. Ms. Hill submits this is a situation where the Plaintiff is claiming psychological damage from the accident and he is making the same claims in the defamation lawsuit. She wishes an adjournment of the trial so she can bring a motion for trial together of the 2 actions and conduct a further discovery.

[3] Mr. Naimark is counsel for the Plaintiff. He advises that the Plaintiff opposes an adjournment of the trial and there is no need for an order for trial together. While he was aware of the criminal charges against Mr. Kalair, he only learned of the existence of the defamation lawsuit from Ms. Hill recently. As well, he informs the Court that he has a motion to be removed as counsel of record which is returnable April 20.

[4] Mr. Waldmann represents Mr. Kalair in the defamation action. He will not be assuming carriage of the motor vehicle case if Mr. Naimark is removed from the record. In fact, the Plaintiff will be opposing Mr. Naimark’s motion for removal. If the motion is successful, Mr. Waldmann advises that Mr. Kalair will act on his own behalf or if he is able, he will retain new counsel to do the trial.

[5] In response to my questions, Mr. Waldmann states that although the defamation action was commenced in 2014, the examinations for discovery are not complete and it is not set down for trial. In my view, there is no compelling reason why the trial of the tort action should be adjourned to obtain an order for trial together of the two actions. Mr. Waldmann advises that in the defamation action, the Plaintiff seeks damages for loss of reputation. In the motor vehicle case, the Plaintiff seeks damages for chronic pain, carpal tunnel problems, and emotional complaints. He is asserting a loss of income claim as well.

[6] The defence knew about the criminal charges and if they wished further information, the defence could have brought a motion to compel answers to the questions refused at the discovery. There is no prohibition to the defence using the information relating to the defamation action for cross examination of the Plaintiff. I am told the psychologist who has provided an expert report for the Plaintiff has offered an opinion on whether any of the emotional problems the Plaintiff has are related to the coverage by the Globe and Mail of the criminal proceedings against Mr. Kalair. Certainly the experts can be asked at trial about whether or not the Plaintiff’s emotional complaints from the motor vehicle accident were exacerbated by the manner in which the criminal case was reported in the newspapers.

[7] I am of the view that the 2 pieces of litigation are separate and distinct and there is no need for an order for trial together. I decline to adjourn the trial date on that basis.

Date: April 13, 2022