Court File and Parties

COURT FILE NO.: CV-19-00630009 & CV-19-00628034 DATE: 20220426 SUPERIOR COURT OF JUSTICE – ONTARIO

CV-19-00630009 RE: Surinder Sharma, Ajay Sharma, Wen-sha Hotels Inc., 2070067 Ontario Inc., 2033454 Ontario Inc. and 2057034 Ontario Inc., Plaintiffs AND: Marvin Talsky, Talsky Law and Brostal Holdings (1999) Ltd., Defendants

CV-19-00628034 RE: Sanjay Gandhi, 2514682 Ontario Inc., 2571951 Ontario Inc. and 2206016 Ontario Inc., Plaintiffs AND: Marvin Talsky, Talsky Law and Brostal Holdings (1999) Ltd., Defendants

BEFORE: D.A. Wilson J.

COUNSEL: William Chalmers, for the Plaintiffs Gary Caplan, for the Defendants

HEARD: April 20, 2022

Endorsement

[1] In my capacity as the co-team lead in charge of civil trials, I was asked to deal with the request for an adjournment of a fixed trial date, and a case conference was convened. I was not familiar with these related actions.

[2] The trial coordinator received an email from Mr. Chalmers, the solicitor for the Plaintiffs, advising that counsel for the Defendants had recently been retained, because of an “unavoidable conflict of interest that arose involving prior counsel for those parties.” The email went on to advise that there was “an understandable delay while new counsel was appointed” and that counsel “needs time to review the files, report to his clients and get up to speed.”

[3] These are claims against the Defendant Talsky, who is a lawyer. Claims are alleged in negligence and breach of fiduciary duty. During the case conference, Mr. Chalmers advised me that his expert, Gavin Mackenzie, has not prepared an expert report and will not be able to produce it in a timely fashion. I was advised that both counsel agreed that the trial should be adjourned and new dates selected in the fall of 2022.

[4] During the case conference, it was unclear to me how or why the conflict of interest arose necessitating a change of counsel. As well, the explanation for the failure to obtain the expert report in a timely fashion was not provided. Given my unfamiliarity with the file, following the case conference, I sent a letter to counsel requesting a summary of the conflict of interest issue as well as other documentation that counsel referred to that I had not been provided with. I have now received responses to my correspondence to counsel. I have also had the opportunity to review the endorsements of my colleagues Justice Myers and Justice Dunphy to acquire a sense of the history of this action.

Background

[5] These actions were commenced in 2019, with the Plaintiff seeking a refund of fees paid to the Defendant lawyer years ago. Mr. Sharma alleges that the Defendant Talsky acted for both sides on a loan transaction in which he was essentially the lender as well as the solicitor. Both Sharma and Talsky are elderly, both are 89 years of age or older. The Defendants assert that the limitation period has long expired and that there is no merit to the claims. The parties attended Civil Practice Court on March 9, 2020, apparently seeking an early expedited trial in light of the parties’ respective ages. Perhaps the pandemic intervened but it is unclear what happened after the March 2020 attendance.

[6] In any event, on June 2, 2021, the Defendants’ counsel attended Civil Practice Court and scheduled a summary judgment motion with a return date of November 16, 2021. The motion was based on the limitation period issue as well as the assertion that the action was frivolous and vexatious. There was a cross-examination of Talsky and Mr. Chalmers advised that he would be securing an expert report.

[7] On September 28, 2021, counsel appeared before Justice Myers. Mr. Chalmers requested an adjournment of the summary judgment motion. Justice Myers ordered a case conference which took place on October 6, 2021. At the conference, Mr. Chalmers advised that he had retained Gavin Mackenzie to provide expert opinion on whether or not the Defendant met the standard of care for a lawyer in the circumstances at the relevant time. Mr. Chalmers advised Justice Myers that he was retaining another expert as well to opine on the conflict of interest issue. Since the cross examination of Talsky had occurred, the Plaintiffs needed leave of the Court, which would have to be obtained through a motion before an Associate Judge.

[8] In his written reasons dated October 8, 2021, Justice Myers stated that the Plaintiffs require an expert report to succeed on a solicitor’s negligence claim and that report was needed for the motion. He adjourned the summary judgment motion that was scheduled for November 16, 2021 to permit the motion before the Associate Judge. Justice Myers also noted that a summary trial could likely be completed before the summary judgment motion was rescheduled and suggested that counsel find a way to agree on an efficient, affordable process for the parties.

[9] Counsel then appeared in Civil Practice Court on December 1, 2021 before Justice Dunphy.

[10] The Plaintiffs sought to book a Rule 21 motion dealing with the issue of privilege. Justice Dunphy refused to book the motion and instead, directed the parties to attend a case conference to work out a detailed litigation plan. He wrote, “These cases should be heard on the merits and soon. Both parties have senior counsel and I expect counsel to collaborate on an efficient and pragmatic litigation plan before attending the case conference. It is highly likely that these cases can be prepared for an early hearing via summary trial if the parties roll up their sleeves, agree to disagree on the merits but work out an efficient plan for a hearing of the dispute…Summary hearings can be hybrid affairs if the parties work out a detailed trial plan… a summary trial date can be obtained for 2, 3 or even 4 days quite quickly.”

[11] Counsel then booked a case conference for February 11, 2022. They wrote to Justice Myers on January 28, 2022 advising that a litigation plan had been worked out for both actions and that they had agreed to proceed with a summary trial June 27, 28, 29 and July 5, 6, 7 and 8 2022. Counsel noted that the parties were in their late 80’s and early 90’s and a request was made to have these trial dates secured on an expedited basis.

[12] Justice Myers responded on January 31, 2022 advising that although the summer schedule was not yet in place, these expedited trial dates would be confirmed and a judge would be assigned. On February 11, 2022, counsel appeared before Justice Glustein on the case conference. In his written endorsement, Justice Glustein noted counsel had reached an agreement on the procedure, evidence and schedule for the expedited trial of these actions and the expedited trial dates in June and July were confirmed.

[13] On April 4, 2022, Mr. Chalmers wrote to the trial coordinator to advise that Mr. Caplan was now acting for the Defendants as a result of “an unavoidable conflict of interest that arose involving prior counsel for the Defendants.” Mr. Chalmers advised that he and Mr. Caplan agreed that there was not enough time to be ready for trial and they wrote asking that the June and July trial dates be vacated and instead the trial be rescheduled for October 2022. As a result, the case conference before me was convened.

Submissions of counsel

[14] Mr. Chalmers in his letter to me states that the former defence counsel advised that he would be transferring the case to new counsel. Mr. Caplan delivered a Notice of Change of Solicitors on March 16, 2022. He states that he believed Mr. Caplan would not have time to, in essence, get up to speed for the trial and “would want an adjournment”. He notes that the Defendant was to answer his undertakings by March 18 and that this was not done. He asserts that he is unable to serve his expert’s report by May 2 and that his expert “might” be able to finish his report by May 19, but that is not certain.

[15] Mr. Caplan sent an email April 26, 2022 advising that he agrees with Plaintiffs’ counsel that the trial date must be adjourned so he can familiarize himself with the file. Additionally, Mr. Caplan submits that an adjournment would enable Mr. Chalmers to serve an expert report and the Defendants might wish to serve their own expert report.

[16] I have reviewed the Agreement between counsel regarding the procedure, evidence and schedule dated February 11, 2022. That Agreement required the Plaintiff to serve its expert report by May 2, 2022 and the Defendants by June 3, 2022. Other steps for the evidence at trial are set out in detail.

[17] With respect to the conflict of interest issue that Mr. Chalmers asserts required the Lipman Zener firm to get off the record for the Defendants, I do not propose to comment on this “unavoidable issue”, as Mr. Chalmers described it, except to note 2 things. First, Mr. Chalmers states that he was aware of the conflict of interest in February of 2021. He writes that it was only after the examination for discovery on February 10 and 15, 2022 that he determined the Lipman Zener firm must be removed as counsel for the Defendants. The delay of a year in addressing this issue is not explained. Second, while it is not necessary for me to determine whether or not a motion by the Plaintiffs to have the Lipman Zener firm removed as counsel of record was necessary, in the particular circumstances of these actions, there were other ways to deal with the concerns of the Plaintiffs arising from any conflicts of interest of the former defence counsel that did not require new counsel getting on the record. Such a step always involves delay and expense, which in my view was unnecessary and ill advised, particularly with fixed trial dates that had been provided on an expedited basis and a tight timetable that counsel had agreed to and clients who are elderly.

[18] In Toronto, adjournments of fixed trial dates are only granted in extenuating circumstances. Counsel cannot simply agree that they will vacate a fixed trial date and select new ones. In person trials resumed in Toronto as of March 1 and trial dates are a precious commodity in light of the number of trial dates that had to be adjourned since March 2020 as a result of the pandemic restrictions.

[19] The events giving rise to these actions occurred many years ago and the parties are elderly. Counsel have had the benefit of directions from the Court on numerous occasions. Justice Myers and Justice Dunphy both issued written reasons imploring counsel to abandon the motions and other interlocutory maneuvering and focus on the merits of the actions and getting the cases tried in an expeditious and efficient manner. As early as March 2020, counsel were before the Court seeking a motion to deal with a discovery plan. It is unclear to me what, if anything, transpired on these actions between March 2020 and June 2021 when counsel appeared in Civil Practice Court.

[20] Back in September 2021, Justice Myers stated, “Both parties are aged. Delay benefits no one. Summary resolution is fine if it is available realistically. It seems to me that both sides need to consider more carefully a plan to have the matter resolved on its merits as soon as reasonably possible.” I agree with that view, 7 months later. It is unclear to me why Mr. Chalmers has failed to secure the expert report of Mr. Mackenzie that he advised Justice Myers was necessary back in October 2021. Mr. Chalmers knew from the outset that an expert report was necessary given the nature of the actions.

[21] Adjourning the June trial date is not in the interests of the parties. Justice Myers and Justice Dunphy advised counsel repeatedly that these actions needed to proceed quickly for a determination on the merits. I do not accept the submissions of Mr. Chalmers that there was unavoidable delay associated with the conflict of interest issue. Mr. Caplan delivered a Notice of Change of Solicitors 5 and a half weeks ago, knowing there was a fixed trial date that had been expedited by the Court, and a schedule in place for the necessary steps. The trial is not for another 2 months. At the risk of repeating what Justice Dunphy wrote some 5 months ago, if counsel work collaboratively on ensuring the necessary steps are done to make these cases ready for trial, there is no need for an adjournment of the June trial dates. I decline the adjournment request. Counsel are directed to amend the existing timetable on a consent basis, failing which a case conference can be sought for the implementation of a new timetable for the existing steps.

Date: April 26, 2022