COURT FILE NO.: 16-2739 SR
DATE: 2022/04/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHARLENE MARIE KEW, ESTATE TRUSTEE DURING LITIGATION FOR THE ESTATE OF ROBERT THOMAS KEW, DECEASED, Plaintiff
AND:
STEVE KONARSKI, Defendant
BEFORE: Justice I.F. Leach
COUNSEL: John C. Langlois, for the Plaintiff
Justin O’Rourke, for the Defendant
HEARD: Via teleconference
ENDORSEMENT
[1] The broader context of this matter is described in detail in the partial judgment I rendered herein on August 4, 2020, and the subsequent endorsement I rendered herein on September 23, 2020, directing a reference pursuant to Rule 54 of the Rules of Civil Procedure.
[2] This endorsement follows the holding of a case conference held by teleconference this afternoon; a conference I directed pursuant to Rule 50.13(1), after I was presented with material counsel had filed in relation to a motion brought by the defendant pursuant to Rule 54.08 for confirmation of the referee’s original and supplemental report.
[3] As I indicated to counsel during the conference, my review of that material suggested that the motion was not amenable to a 30-minute hearing which had been scheduled by the trial co-ordinator for July 19, 2022, at 10:00am, on the basis of indications that the matter would be proceeding on consent.
[4] In particular, the material filed strongly suggested that, while the parties were agreed that a Rule 54.08 motion should be brought to move the matter forward, they were not agreed that the referee’s report and supplemental report should be confirmed in the sense contemplated by Rule 54.07, whereby the report and supplemental report would be given the force of an effective order of the court following their formal confirmation by the court. To the contrary, it seemed clear that the plaintiff intended to express disagreement in that regard, and ask the court to reach different conclusions in my final judgment.
[5] During today’s conference, I expressed my concerns in that regard, along with my preliminary view that the referee’s report and supplemental report were problematic in a number of respects, particularly insofar as the referee apparently had failed repeatedly to follow my detailed instructions and supply the information I specifically had requested, to enable my determination and rendering of an appropriate final judgment.
[6] In their comments, counsel effectively confirmed that there were in fact several areas of outstanding disagreement between the parties.
[7] For example, counsel were unable to confirm, during the conference, the extent to which disagreements might still remain concerning matters such as:
a. whether the plaintiff had withdrawn all of her claims for monetary damages in relation to the vehicles and parts which had been withheld but returned after the rendering of my partial judgment;
b. the extent of the plaintiff’s ongoing claims for monetary damages sufficient to address the defendant’s apparent failure to return various components of the 1960 Corvette vehicle;
c. whether the plaintiff had waived or was pursuing a claim for punitive damages; and
d. whether the parties agreed with the referee’s ostensible resolution of cost issues relating to the reference, which had proceeded in a manner contrary to my directions.
[8] During the course of the conference, counsel agreed that they would like a further opportunity to meet and discuss areas of remaining disagreement; e.g, to confirm what had been agreed to date, determine what areas of disagreement remained, and whether those remaining issues could be resolved through further negotiation.
[9] In the meantime, all concerned agreed that the hearing time currently reserved for July 19, 2022, should be vacated, since:
a. agreement on all the remaining issues would obviate the need for hearing of the defendant’s Rule 54.04 motion; and
b. if areas of disagreement remained, they almost certainly would require well over 30 minutes to address.
[10] At my request, counsel also will give further thought to the amount of time and procedure best suited to address and finally resolve the remaining issues.
[11] In that regard, my preliminary view is that the reference procedure has failed in a number of ways, (for the reasons noted above), that the presentation of further testimony and documentary evidence probably will be needed to provide the court with the additional information needed to address and resolve the remaining disputes, (particularly in relation to the proper assessment of damages relating to components of the 1960 Corvette vehicle that apparently have not been returned), and that the most certain way of addressing and finally resolving the remaining issues would be the scheduling of one or two additional days of trial.
[12] However, that determination obviously should be delayed until counsel have met to clarify and confirm exactly what issues the court still needs to address and resolve.
[13] Having regard to all of the above:
a. Counsel are directed to have further discussions directed to confirming of remaining issues, and how best to schedule further hearings to address their resolution.
b. The hearing time currently reserved for the hearing of the defendant’s Rule 54.08 motion on July 19, 2022, is hereby vacated, and that motion adjourned sine die for the time being.
c. Pursuant to Rule 50.13, a further case conference for this matter is hereby directed, with the conference to be conducted before me by telephone, and to be scheduled by counsel, in consultation with the Stratford and regional trial co-ordinators, for a mutually convenient date and time at least two weeks hence; i.e., to allow counsel an opportunity to meet and discuss the matter as contemplated, before that next case management conference.
d. A copy of this endorsement shall be appended to the trial record for this matter.
[14] If the parties require any further direction in the meantime, they may direct correspondence to me via the London judicial assistants.
“Justice I.F. Leach”
Justice I.F. Leach
Date: April 14, 2022