Court File and Parties

Court File No.: CV-19-143011 Date: 2022-06-20 Superior Court of Justice - Ontario

Re: The Estate of Michael Del Duca, by it’s Estate Trustee, Amanda Del Duca, Benjamin Del Duca, By his Litigation Guardian, Amanda Del Duca, Alexander Del Duca, by his Litigation Guardian, Amanda Del Duca, Amanda Del Duca, personally, Benedict Del Duca, Margaret Del Duca, Lorraine Fusco, Mark Del Duca and Steven Del Duca, Plaintiffs

And: The Estate of Konstantinos Kazinakis, by its Estate Trustee, Elizabeth Roberts, Daro Industries Inc., Nove Ristorante Ltd., John Doe and Jane Doe, Defendants

Before: The Honourable Mr. Justice R.E. Charney

Counsel: Sloan H. Mandel, Counsel for the Plaintiffs David G. Merner, for the Defendants, Defendants, Nove Ristorante Ltd., George Efram and Bernadette Gavazza

Heard: In-Writing

Endorsement

[1] This action arises out of motor vehicle accident on June 21, 2018. Both the driver and the passenger were fatally injured. The action is brought by the estate of the passenger and his family members against the estate of the driver and the restaurant where the driver and passenger were prior to the accident.

[2] On March 2, 2022, I heard the defendants’ motion to require certain non-parties to provide disclosure under Rule 31.10.

[3] On April 1, 2022, I issued Reasons for Decision (Del Duca (Estate) v. Kazinakis (Estate), 2022 ONSC 2055), and ordered the non-parties to produce certain documents within 30 days from the date of the Order.

[4] On April 1, 2022, counsel for the plaintiffs wrote to my assistant stating:

His Honour’s endorsement indicates that various documentation is to be provided by the non-parties to the defendants but makes no reference to the defendants providing copies of that documentation to the plaintiffs.

I suspect that this was an inadvertent oversight, otherwise the defendants will have access to documentation to which the plaintiffs will not.

Might I respectfully request that you bring this email to His Honour’s attention for consideration?

[5] This was not an issue raised by counsel for the plaintiffs in his submissions to the court when the motion was heard. I suspect that was an inadvertent oversight.

[6] On April 7, 2022, I directed my assistant to advise counsel as follows:

Should the parties disagree as to the proper implementation of the Court’s Order, Mr. Mandel may bring a motion in writing to Justice Charney’s attention and His Honour will consider each party’s position.

[7] I was optimistic that the parties could easily resolve this issue without judicial intervention.

[8] My optimism was misplaced.

[9] On May 27, 2022, counsel for the plaintiffs brought a motion in writing to compel the defendants to produce any documentation provided by the non-parties.

[10] The defendants responded to the motion on June 7, 2022. The defendants state that they forwarded my April 1, 2022 Reasons for Decision and Order to the non-parties, but have received no communication from the non-parties and have received no documentary production from them. The defendants are considering taking steps to enforce the Order.

[11] The defendants have also indicated that they will provide the plaintiffs with the documentation provided by any non-party “in due course after our receipt of same”.

[12] Based on these materials, I am uncertain whether the plaintiffs and defendants actually disagree as to the implementation of my Order.

[13] On the one hand, the defendants have already agreed to provide the plaintiffs with the documentation provided by any non-party. The defendants cannot be faulted for not producing documents that they have not yet received. In this sense, the motion to compel production is, at best, premature.

[14] On the other hand, it is unclear what the defendants mean by the cryptic phrase “in due course”. The phrase is not defined in the Rules of Civil Procedure. The defendants could have been more precise in this regard.

[15] In any event, I will assume good faith on the part of defendants’ counsel.

[16] The motion to compel the defendants to produce any documentation provided by the non-parties is dismissed without prejudice to the plaintiffs’ right to bring the motion back if the defendants fail to produce the documents after receipt of same. The motion can be brought in writing under Rule 37.12.1, and the timelines for the service and filing of material set out in Rules 37.12.1 (4) and (5) shall be complied with.

[17] The plaintiffs’ Notice of Motion also requests two other grounds of relief: a further and better Affidavit of Documents and reattendance at examinations for discovery. It appears that these grounds of relief are premised on the defendants having already obtained the non-party disclosure. Accordingly, they are also premature at this time.

Justice R.E. Charney

Date: June 20, 2022