Panchbhaya and Kalair v. Central 1 Credit Union, 2022 ONSC 5293

COURT FILE NO.: CV-21-662346

AND: Kalair v. Khan

COURT FILE NO. CV-22-679056

AND: Panchbhaya v. Siddiqui, 2022 ONSC 3695

COURT FILE NO.: CV-21-661270

AND: Panchbhaya v. Central 1 Credit Union

COURT FILE NO. CV-21-673261

DATE: 2022-09-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MULTICULTURAL CONSULTANCY CANADA INC., UM GROUP INC., YUSUF PANCHBHAYA, OMAR KALAIR, Plaintiffs

AND:

CENTRAL 1 CREDIT UNION, MOYA FINANCIAL CREDIT UNION, WILLIAM CALDER LINDA JEFFERY, STEPHEN ELLIS, VICKIE SACCO, SUZANNE FISHER, SANDRA BARROW, PETER COLLINS, JENS LOHMUELLER, ANDRÉ SCHROER, ART CHAMBERLAIN, DIRK HAACK, DON ROLFE, CHARLES MILNE, PETER UFFELMANN, DAN O’CONNOR, DANIEL A. BURNS, JOHANNE CHARBONNEAU, FORREST DRINNAN, TERRY ENNS, SEAN JACKSON, SCOTT KENNEDY, DOUG LANG, EMMETT MCGRATH, J. PHILIP MOORE, PATRICE PRATT, TRACY REDIES, DAVE SITARAM, JACK SMIT, TAMARA VROOMAN, FRED WAGNER, JACK WHITTAKER, OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS, FINANCIAL SERVICES REGULATORY AUTHORITY OF ONTARIO, BC FINANCIAL SERVICES AUTHORITY, BORDEN LADNER GERVAIS LLP, GRANT THORNTON LLP CANADA, MARK THOMSON, UM FINANCIAL INC., AYA FINANCIAL INC., ABDUSSAMAD KHAN, REHAN SAEED, TALAL CHEHAB and KALIM KHAN, Defendants

AND RE: OMAR KALAIR, Plaintiff

AND:

BASIL KHAN, Defendant

AND RE: YUSUF PANCHBHAYA

AND:

SHAHZAD SIDDIQUI

AND RE: IMAM YUSUF PANCHBHAYA, Plaintiff

AND:

CENTRAL 1 CREDIT UNION, CREDIT UNION CENTRAL, CUCO COOPERATIVE ASSOCIATION, GRANT THORNTON LLP, 3734366 CANADA INC., GRANT THORNTON LIMITED, GRANT THORNTON CORPORATE FINANCE INC., GRANT THORNTON CONSULTING, GRANT THORNTON INTERNATIONAL LIMITED, THORNTON GROUT FINNIGAN LLP, MARK THOMSON and MICHAEL CREBER, Defendants

BEFORE: W.D. Black J.

COUNSEL: Joseph R. Forget, Counsel for the Plaintiffs Philip Underwood, Counsel for the Defendant, Financial Services Regulatory Authority of Ontario Danny Urquhart, Counsel for the Defendant, BC Financial Services Authority Neil S. Rabinovitch, Counsel for the Defendant, Grant Thornton LLP Canada Douglas Stewart and Deepshikha Dutt, Counsel for the Defendant, Central 1 Credit Union Peter I. Waldmann, Counsel for the Plaintiff, Yusuf Panchbhaya (Action CV‑21‑661270) Jordan Palmer and Thomas M. Sieber, Counsel for the Plaintiff, Imam Yusuf Panchbhaya (Action CV-21-673261)

HEARD: September 16, 2022

ENDORSEMENT

[1] A further case conference took place in this matter on September 16, 2022.

[2] As of the last case conference on June 17, 2022, the parties had largely worked out plans for a number of motions, at least some of which were going to be heard before me on October 6 and 7, 2022. The parties were continuing to discuss details of the timing for exchange of remaining materials for those motions.

[3] Also as of June 17, 2022, two matters were agreed to be disposed of on the basis of dismissals without costs.

[4] By email dated September 12, 2022, Mr. Panchbaya advised all counsel that he and Mr. Kalair had fired their erstwhile counsel, Mr. Forget.

[5] This is regrettable in a number of ways, but for current purposes most particularly in that it jeopardizes the October 6 and 7 dates that have long been in place for the hearing of the various outstanding motions. No new counsel has yet been engaged, and I heard from Mr. Kalair during the case conference about financial and other difficulties that he says are delaying the process of confirming new counsel.

[6] I also disclosed to counsel that, although it had been agreed that I would hear the motions on October 6 and 7, I will now be presiding over a trial at that time. While it may have been the case that one of my colleagues would be available to hear the motions, that was uncertain as of the case conference, and, upon reflection, I formed the view that it would be preferable, given my knowledge of the background of this matter, and given the virtual inevitability that the parties of which Mr. Panchbaya and Mr. Kalair are principals will seek adjournments of some or all of the motions on October 6 and 7, to find another date in the near term on which I can hear all motions.

[7] I have determined that I can be available for the week of November 7, 2022 to hear the motions in this matter.

[8] That is short notice, which is something I warned the parties might be necessary, and I encouraged the parties, if we would be in this scenario, to find a way to attend or to arrange for colleagues to attend. While I appreciate that is asking a lot, in my view these matters have simply languished too long and need to be addressed.

[9] I believe I can secure four days during that week of November 7, 2022, and I am optimistic that that means that ALL pending and outstanding matters can be addressed.

[10] To that end, I ask that counsel discuss and agree on the order of motions to proceed that week with a view to dealing with all of them.

[11] I include in that, such matters as Mr. Palmer’s request to get off the record, about which I heard today. I am hopeful that that matter can be concluded between Mr. Palmer and his client, but if not, I will address it (frankly as a lower priority than some of the larger substantive motions that have been pending).

[12] I ask that Mr. Rabinovitch, who has been helpful in organizing counsel in various respects, again take the lead in developing the agenda of motions for the week of November 7, 2022, and in reporting the results to me once the schedule is agreed.

[13] Inasmuch as this upheaval and change of plan has been a by‑product of Mr. Kalair and Mr. Panchbaya’s dismissal of counsel, the hearing of the motions involving them and the entities of which they are principals will be marked peremptory against them and those entities. The extra month between October 6 and the week of November 7 should give them ample time to retain and instruct counsel and in any event, the motions must proceed at that time.

[14] In order to assist in accommodating counsel who will now have to turn on a dime to attend during the week of November 7, 2022, the hearing of the motions will be done virtually (over Zoom). I know that at least one counsel may be out of town during that timeframe and I am hopeful that the ability to attend virtually will nonetheless make it feasible for counsel to attend (at least for their respective portions of the motions).

[15] In the meantime, I expect counsel to adhere to the agreed schedule for the exchange of materials (with a dispensation to Mr. Sieber until next Wednesday, September 21, 2022 as discussed for materials he will deliver). I understand from Mr. Forget that the materials on behalf of his soon-to-be ex‑clients are close to completion; to the extent it is necessary to delay to some extent the delivery of those materials I will not tolerate a lengthy delay. The decision by Mr. Kalair and Mr. Panchbaya to dismiss their counsel is not to be taken as an opportunity for them to further delay these matters.

W.D Black J.

Date: September 16, 2022