Court File and Parties

COURT FILE NO.: CV-19-628261

DATE: 20220125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARY LOUISE BIGGAR, Plaintiff

-and-

PAUL DINEEN, JONATHAN ADAM RAJZMAN, ISAAC SINGER, KARL NODEL, VARTEVAR BROUNSUZIAN and PHILIP USPRECHPAUL DINEEN, JONATHAN ADAM RAJZMAN, ISAAC SINGER, KARL NODEL, VARTEVAR BROUNSUZIAN and PHILIP USPRECH, Defendants

BEFORE: FL Myers J

COUNSEL: Joseph Irving, for the Plaintiff Allen Wilford, for Vartevar Brounsuzian Philip Usprech, on his own behalf

HEARD: January 25,2022

ENDORSEMENT

[1] The plaintiff moves to deliver a fresh, amended statement of claim.

[2] Mr. Irving agrees that the pleas for relief proposed at paras. 1 (xiv) and (xv), related to the prevention of enforcement of a mortgage by the defendant Brounsuzian, are no longer tenable. The mortgage has been enforced already.

[3] There is no reason why the plea at para. 1 (xiii) of the draft pleading cannot be asserted. It seeks to set off the plaintiff’s damages against any amount found due to the defendant Brounsuzian under his mortgage(s). The final accounting under the mortgage(s) has yet to occur.

[4] Mr. Usprech submits that the revised claim wastes years of effort and tens of thousands of dollars already invested in discovery and trial preparation. Barring incompensable prejudice however, the Rule requires that the amendment be allowed. In any event, I agree with Mr. Irving, that the discoveries and preparation to date are not necessarily wasted. For the most part, the new pleading is just repackaging facts already known and adding some facts that arose more recently. Further discovery could be accretive.

[5] There is a problem with the status of this matter however.

[6] Some time ago, Justice Todd Archibald, one of the court’s most senior and respected civil jurists, determined that the matter was not proceeding efficiently or affordably. He imposed a time limit on further discovery and ordered the case to an early, summary trial. The case involved two mortgaged properties hat were unoccupied due to unfinished renovations. Interest was accruing at something in the order of 12% per annum. With the properties potentially under water, the passage of time was no one’s friend. Justice Archibald ordered an early trial with an abbreviated procedure to prevent the ongoing wasting of the collateral.

[7] I then spent the next six months meeting counsel repeatedly to work through discovery and trial management issues. Timelines were put in place and ultimately, on notice to all, the evidentiary record was fixed for a summary trial. The parties’ evidence-in-chief was filed. The trial was ready to go.

[8] Justice David Stinson, another very senior and respected civil jurist, then worked with the parties in the last-minute frenzy before trial. He made a very substantial investment of his own time and met the parties and counsel several times to get them to a partial settlement.

[9] The remaining issues came on for trial with maximum commercial pressure for a settlement impacting all parties.

[10] The trial judge determined that the processes that had been put in place unfairly limited the plaintiff’s discovery rights and evidence presentation. The judge adjourned the trial, re-opened discovery, and held that the trial would be on oral evidence.

[11] And there the matter stands almost a year later.

[12] Nothing has happened except the plaintiff has proposed amending her statement of claim and then proposed to do so again leading to this motion. There is no plan, no schedule, no delineation of what more is required, or how the parties are to get it. The parties are back to the sniping and delay that Archibald J. recognized and tried to eliminate at the outset. Today, I heard counsel and a party nearly come to blows because so many years into the piece counsel for the plaintiff was still refusing or just not bothering to pronounce the self-represented party’s name correctly.

[13] I am told that next week the two remaining defendants have motions for security for costs returnable before an Associate Justice. The plaintiffs’ two properties have been sold and left her with a $500,000 shortfall according to the mortgagee. I do not want to prejudice the outcome of the motion. But it is fairly predictable.

[14] So, this action is left in limbo for the parties to move it forward if and when they are able or inclined to do so. Mr. Usprech laments that the plaintiff does not want to get it to trial. She just keeps bobbing and weaving to increase the defendants’ investment in the proceeding in costs and emotional energy he says.

[15] The prejudice of delay and languishing procedure is not to be diminished. But I don’t know what else would be expected by re-opening the process without any heed to the history or guidance for the future.

[16] The amendments are allowed with the exception of paras. 1 (xiv) and (xv) that are withdrawn on consent.

[17] I cannot tell whether any of the costs incurred to date are thrown away. I leave that for the trial judge.

[18] Had Mr. Wilford and Mr. Irving spoken in advance of the motion, they could readily have settled on the basis that para. 1 (xiii) of the draft pleading would stay but paras. (xiv) and (xv) should go. There was no disagreement between them at the hearing. Neither of their clients should have costs from the other as this motion was unnecessary as between them.

[19] I know that Mr. Usprech feels that the process is being abused. He does not want to have to wait until the end to collect costs from the judgment-proof plaintiff. But he too is said to be judgment-proof. The plaintiff succeeded on this motion. Moreover, with the narrowing of issues in the pre-trial steps, it is clear now that it is Mr. Usprech’s role that is most in issue. If he misappropriated funds or mis-charged the plaintiff, he may be the villain of this piece. The wrongdoing alleged against the mortgagee seems principally focused on his dealings with Mr. Usprech.

[20] I would not let a costs award on a motion to amend a pleading stop this action in its tracks. In my view, the justness of an award of costs on the motion depends on who wins at trial. If the plaintiff succeeds against Mr. Usprech, then this motion is completely sensible. But, if Mr. Usprech is found to have done nothing wrong, then this motion was just re-arranging the deck chairs on a sinking ship.

[21] Therefore, as between Mr. Usprech and Ms. Biggar the costs of this motion, including Mr. Usprech’s claim for costs thrown away, are in the cause as between them.

FL Myers J

Date:, January 25, 2022