Court File and Parties

COURT FILE NO.: CV-18-00611451 DATE: 2022-08-31

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Country Wide Homes Upper Thornhill Estates Inc., Plaintiff -and- Yanmei Su, Defendant -and- Your Advocates Realty Inc., Riccardo Del Rosso and David Crudele, Third Parties

BEFORE: FL Myers J

COUNSEL: Emilio Bisceglia and Sonja Turalich, for the Plaintiff Tamara Farber, for the Defendant Chris Junior, for the Third Parties

HEARD: August 30, 2022

Endorsement

[1] This is one of seven actions among a developer and seven buyers of new luxury homes. When the market fell the buyers did not close their transactions. There have been many similar cases before the court from the same time period in similar circumstances including others from this subdivision involving this developer.

[2] With their current counsel, the buyers have advanced an environmental issue on which they rely to base their defences to the enforcement of liability against them. The defences may succeed. Or they may not.

[3] There are some common issues of fact and law in the various cases. The developer’s knowledge of the environmental condition of its land and its efforts to build disclosure and liability protections into its sale documents, if producible, is the same in each case. But the conduct of the vendor’s agents (who have been added as third parties in each case by the buyers), the degree of reliance by the buyers on alleged misrepresentations, if any, the facts relating to the buyers’ affirmation of their agreements, the buyers’ efforts to investigate environmental issues disclosed in the agreements that they signed, if any, the degree to which they relied on environmental assurances, if any, and their bona fides in refusing to close, will be unique in each case.

[4] Ms. Farber requests that the cases be case managed together, with common disclosures, discoveries, and trial together (or one after the other). She submits that it will be inefficient to deal with the vendor’s environmental background and competing expert evidence about the environmental conditions of the subdivision land in each case when the facts and legal issues they present will be common to all the cases. I recognize that there may be two or perhaps more subsets as some of the lots have liners and others do not. For present purposes, I accept that there are common questions of fact and law among the cases.

[5] Generally speaking there are opportunities for efficiency when common issues in litigation are dealt with together and only once. Nothing precludes counsel from agreeing that disclosures and evidence in one case or one trial will be taken to be evidence in all of them.

[6] Conversely, joining several matters into a behemoth lawsuit also creates potential for inefficiencies. Case management can at times be misused to invite disagreements especially in complex matters where parties have privileged access to a judge to resolve small issues cheaply and quickly.

[7] A common trial – or trials one after the other before the same judge - will be a 30-day proceeding that cannot be heard for several years. Summary trials of actions that are ready to go to trial can be heard next spring.

[8] Once one trial is heard and resolved, some of the questions of law may be answered and may no longer be in issue for the remaining cases. Moreover, once one trial is dealt with, counsel may well be able to agree on a common set of documents and agreed facts on common issues to govern later cases.

[9] This is not a class action. I am not asked to bind a class to a common issues trial. I am not asked to recognize a formal test case. Moreover, I cannot ignore that each defendant has powerful incentive to delay. I am not aware of a similar case from the same time period in which a defendant has successfully relied on alleged misrepresentations to avoid their agreement of purchase and sale. The environmental issues raised have yet to be adjudicated upon as far as I am aware. If there were latent defects or misrepresentations which were material and were relied upon by buyers, there may be defences possible. I do not know. But, for this defendant, the answer can be known as early as next March or April.

[10] If the defendant is liable, the plaintiff should be entitled to its recovery. Moreover, if this case proceeds, the rulings at trial may greatly limit the degree of production and trial length of future cases.

[11] Overall, in my view, putting the cases together in case management in this particular case will serve to slow them all and miss an opportunity to obtain early rulings by a trial judge (and perhaps the Court of Appeal) that can then streamline all of the other cases whether as a matter of law or by agreements among counsel acting in good faith.

[12] I disagree with Mr. Bisceglia’ s submission that the orders sought by Ms. Farber should not be made at a case conference but required a full evidentiary record. With respect, counsels’ affidavits telling me the background and offering their legal opinions are no more persuasive than counsel sitting with me discussing the facts and issues and making submissions in good faith.

[13] Under Rule 50.13 (6) summary resolution leading to interlocutory orders is generally available if the court finds it appropriate. This does not necessarily preclude all or any evidence. Rather, the process for summary resolution can itself be discussed and resolved summarily at one or more case conferences.

[14] If more documents are required and have not been sent to me already, counsel are able to raise an issue about the process during a case conference. Counsel always have an opportunity to tell the judge that there are materials that they would like to put before the court at the case conference or an early return of an adjourned conference. The judge can decided on the appropriate and proportional procedural steps in each case.

[15] For most procedural matters counsel can put relevant documents before the court by agreement or subject to submissions. What can be avoided at case conferences is the cost and delay of a formal evidentiary record, cross-examinations, and a lengthy queue in the motions court backlog. This is especially valuable for procedural and scheduling issues that counsel are able to and should resolve by agreement.

[16] Summary resolution of interlocutory motions at case conferences in appropriate cases is anticipated expressly by Rule 50.13 (6). It provides a powerful way to limit the use of procedural motions to drive up costs and delay under the long-lamented “Toronto Motions Culture”. All that is needed is a sufficient judicial complement to hear case conferences quickly and a willingness of the court and the bar to get to the issues informally while eschewing trappings that add little substance and simply serve to run up costs and delay.

[17] Unfortunately, the first condition cannot be met currently on the Civil List in this region. Case conferences are backlogged to a degree that they are no longer being routinely convened in the short motion triage process under s. C.1.5 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic.

[18] Pockets of the bar have at times called for a move from short interlocutory motions to summary resolution of procedural issues. The American College of Trial Lawyers commented in its 2016 report Working Smarter but not Harder In Canada: The Development Of A Unified Approach to Case Management in Civil Litigation:

The use of informal procedures to resolve interlocutory disputes or issues can be highly beneficial in reducing the expense and delays associated with civil litigation. These procedures range from judges making themselves available to discuss matters by phone, to meeting with counsel in Chambers at the beginning or end of judicial days, to insisting that no formal motions concerning interlocutory disputes be filed until the matters in question have been discussed first with the case management judge on an informal basis. Formal contested motions are treated as an exceptional procedure of last resort, and are only permitted where absolutely necessary. When they are brought, they are generally decided quickly using brief written endorsements rather than lengthy judicial decisions.

[19] Informal procedures are also frequently used to direct that trials be held with written evidence in chief to shorten trial length and speed up the scheduling of the trial.

[20] While a “summary trial” is a feature of the simplified procedure, a judge or an associate judge can replicate the process by ordering evidence in chief at trial be presented by affidavit under Rule 53.02. The rule provides expressly that the order can be made before trial. It is a common order made in this region at Civil Practice Court and in case conferences. It is the default trial process in the UK. To be sure judges need to be provided with time and technology to read and annotate the affidavits before court. But the savings to litigants of the cost and delay caused by lengthier trials as well as the institutional saving of scarce in-court time are manifest.

[21] In my view, this is not a case for a common trial or case management under Rules 6.01 and 77.05 respectively. Rather, considering the factors in Rules 6.01 (2) and 77.05 (4), the most efficient, least expensive, and earliest outcome will come by this action proceeding to summary trial in the spring.

[22] The other actions will be dealt as each can be readied for trial. Counsel are urged to make efforts to agree to limit repetition as much as possible.

[23] In the meantime, this action is to proceed to a summary trial. Counsel are to discuss trial deliverables, to the extent any remain outstanding, and to prepare a draft schedule. I will hear a case conference to implement a trial schedule and to conduct trial management. Counsel for any of the parties (including the third parties) may schedule the next case conference once they have conferred.

FL Myers J

Date: August 31, 2022