Court File and Parties

COURT FILE NO.: CV-14-512513

DATE: 20220602

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sheldon Libfeld, Mark Libfeld, Jay Libfeld and Corey Libfeld, Plaintiffs

AND:

Patica Corporation, Kingsdale Capital Markets Inc., Patica Securities Limited, David Prussky, Bennett Jones LLP, Alan Ross and John Kousinioris, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Harvin D. Pitch and Adam Brunswick, for the Plaintiffs

Alan Mark and Melanie Ouanounou, for the Defendants, Patica Corporation, Patica Securities Limited and David Prussky

William E. Pepall and Angus T. McKinnon, for the Defendants, Bennett Jones LLP, Alan Ross and John Kousinioris

HEARD via Telephone: June 2, 2022

ENDORSEMENT

[1] This is a claim by four brothers against the various defendants based in negligence. This is the second case conference I have held in this action, again at the request of the Plaintiffs. At the last case conference, on February 7, 2022, I ordered the mediation be held on or before June 30, 2022 and that the issue of the retainer for Corey Libfeld be determined immediately. The Plaintiffs wish to fix a trial date and in accordance with the Consolidated Practice Direction for Toronto, there must be a mediation before a trial date can be secured in Toronto.

[2] In March 2022, all parties except for Corey Libfeld confirmed the mediation would proceed with the agreed-upon mediator on June 20, 2022. On April 4, 2022, Mr. Pitch advised that Corey was not able to attend the mediation because he had booked a vacation to Italy. It is not clear to me why the vacation was booked at that time, in light of my order of February 7, 2022. The June 20^th date for the mediation is no longer available with the mediator.

[3] In any event, Mr. Pitch requested today's case conference. He suggested that the requirement for a mediation prior to fixing a trial date could be dispensed with and the mediation arranged later. I am not prepared to accede to this request. There is a reason that there is a requirement for mediation prior to scheduling trial dates in Toronto and the setting of a trial date is an important step in the life of a litigation file.

[4] Mr. Pitch also submitted that an order could be made that the action not be struck from the list and the parties could attend at trial scheduling court in the fall, having attended the mandatory mediation over the summer. He stated that it was not fair to the other 3 Plaintiffs who have been cooperative to strike the action from the list. I am not prepared to accede to this request either.

[5] This action was commenced in 2014 and I am told it involves events that occurred from 2004-2006. Counsel are aware that it is necessary to attend a mediation prior to obtaining a trial date. After my order requiring the mediation be held by June 30, 2022, counsel and the parties, except Corey Libfeld, agreed to attend the mediation on June 20. The fact that Corey Libfeld arranged a vacation for June 2022 knowing my Order required the mediation prior to June 30 shows disregard for the Court and its processes, including my Order. I am not prepared to grant an indulgence to Corey Libfeld in these circumstances, nor do I have any confidence that a mediation in this action will be held in the near future.

[6] At this moment in time, as the Court emerges from the pandemic, trial dates are valuable commodities. There are many actions that are ready for trial with parties who are prepared to fix trial dates, having complied with the requirement of attending a mediation. There is no reason that this action should be fixed for trial when the mediation has not occurred because one of the parties chose not to make himself available for a date that would comply with my Order. Had there been a compelling reason that prevented Corey Libfeld from attending the mediation set for June 20, I would have been prepared to make accommodations. However, on the facts of this case, to fix a trial date as a "place holder" would only serve to deprive other parties of that trial date and would reward disrespectful behaviour.

[7] This action is struck from the trial list. When the mediation has been held, all motions have been completed and the action is truly ready for trial, the trial coordinator can be contacted for a date in trial scheduling court to fix a trial date.

Date: June 2, 2022