COURT FILE NO.: CV-18-00001088-00
DATE: 2022 01 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ERIC DAVIES v. PAUL COSSNELL, FITIM XHEMAJLI, and SABIT XHEMAJLI
BEFORE: RSJ RICCHETTI
COUNSEL: A. Mancuso and R. Minhas, for the Plaintiff
D. Truman, for the Defendant Paul Cossnell
A. Snow, for the Defendants Fitim Xhemajli and Sabit Xhemajli
HEARD: January 27, 2022 via ZOOM
ENDORSEMENT
[1] This conference demonstrates a growing problem with civil case conferences.
[2] Counsel should appreciate that having a civil case conference is not for obtaining substantive remedies (unless on consent). It is for procedural matters. At a case conference, there is usually nothing more than a letter(s) requesting the case conference. Usually, it is scheduled on a few days notice. It is usually scheduled for ½ or 1 hour at most. Some by teleconference, as was this one.
[3] If substantive relief is being requested, the matter must be scheduled for a hearing (not a conference) to permit the court to decide the substantive issue on evidence and submissions.
[4] An urgent hearing can be scheduled and timetabled at a civil conference.
[5] If the parties cannot come to an agreement dates or a timetable, then a conference may be necessary, but as stated in the CW Notice to the Profession for Long Motions, a party acting unreasonably should expect that costs may be awarded against that party at the conference if appropriate.
[6] A civil case conference is not and should not be used to seek the court’s intervention to ensure civility, reasonable or responsive conduct by opposing counsel. Such conduct is already required by the Rules of Professional Conduct.
[7] Too often at the root of civil case conferences is unreasonable conduct by counsel, some who believe that delay and obstruction is acceptable litigation strategy. It is not.
[8] Turning to this case. This is a 2018 action.
[9] By letter, Mr. Truman requested a case conference to deal with several issues:
• Mr. Minhas’ office’s failure to answer “letters and requests” from his office;
• Mr. Minhas’ office’s failure to obtain “an extension of time for service of the Statement of Claim” (it wasn’t clear which Defendant); and
• Mr. Mihas’ client has not answered U/T’s.
[10] I was advised that Mr. Truman’s client had served a Statement of Defence some years ago and had completed examinations for discovery in November 2020. Service was apparently not an issue for Mr. Truman’s client.
[11] Ms. Snow’s position was that service in 2018 was not properly affected on her clients. At that time, Ms. Snow’s office advised Mr. Mihas’ office to bring a motion to extend time to serve the Statement of Claim despite the fact Ms. Snow’s firm had been retained and, obviously, her clients were aware of the proceeding.
[12] Given Ms. Snow’s position (and I resist making comment on counsel’s reasonableness to insist on service of the Statement of Claim on her clients rather than simply accepting service), there is no explanation why Mr. Minhas’ client has done nothing to attempt to validate the alleged improper service for years. On the other hand, Ms. Snow’s clients have done nothing to deal with the issue either and has let the Statement of Claim remain outstanding against her client. Letters back and forth between counsel have achieved nothing. Yet, neither brought a motion nor took any steps to deal with this issue.
[13] Then the Plaintiff, Eric Davies, (although Ms. Snow’s client remained unserved with the Statement of Claim) was examined for discovery in November 2020 by Mr. Truman’s client. Now service on Ms. Snow’s clients become somewhat more problematic since her clients were not involved in the examination for discovery (or so it appears). The Plaintiff gave U/T’s. Mr. Minhas’ client has not answered the U/T’s in 15 months. Mr. Truman has not brought a motion to compel answers to U/T’s for the past 15 months. He has written letters which have gone unanswered from Mr. Minhas’ office.
[14] Mr. Truman also wrote to Mr. Minhas’ office requesting consent to a WAGG motion. Mr. Minhas’ office has not responded to those letters. Mr. Truman has not brought a WAGG motion.
[15] So, what is the solution?
[16] I decided to proceed to identify the motions needed and set a timetable to have the necessary motions scheduled to be heard by the court.
[17] First, I identified the service issue on Ms. Snow’s clients. I was prepared to, and started to, timetable this motion. Mr. Minhas agreed to bring the motion, albeit 3-4 years after the action was commenced, after some examinations for discovery and only after the court’s intervention on this conference.
[18] Then I identified the WAGG motion and started to timetable this. But Mr. Truman advised he didn’t have instructions to bring the motion. Mr. Truman wanted the court to direct Mr. Minhas’ office to respond to his letter seeking consent to a WAGG order by a certain date to be imposed by me. Now this court was being used to enforce civility and responsiveness between counsel by timetabling correspondence between counsel. This quickly appeared to be a waste of this court’s time.
[19] Then I identified the U/T’s motion, but Mr. Truman wanted me to simply order that the U/T’s be answered within 60 or 90 days. He wasn’t looking for a motion date. He wanted an order today! What U/T’s? I don’t know. There is no evidence before me. All I have is the very brief letter from Mr. Truman identifying that there are U/T’s outstanding. And Mr. Truman wants an order that Mr. Minhas’ client answer U/T’s by a certain date – and I have no idea whether that or any other timeframe is reasonable or not. This also appeared to become a waste of time.
[20] At this point, I brought the conference to an end, advising counsel that if they had any motions to bring, they should bring them and schedule them through the Trial Coordinator’s Office.
[21] If a party or their counsel is being unreasonable, unresponsive, or simply obstructive to any motions to be or actually brought, then the court can deal with this in costs, even perhaps punitive costs against a party or perhaps even a cost award against counsel.
[22] This is a prime example of wasting precious judicial resources by all counsel in this matter.
RSJ RICCHETTI
Released: January 28, 2022
COURT FILE NO.: CV-18-00001088-00
DATE: 2022 01 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ERIC DAVIES v. PAUL COSSNELL, FITIM XHEMAJLI, and SABIT XHEMAJLI
COUNSEL: A. Mancuso and R. Minhas, for the Plaintiff
D. Truman, for the Defendant Paul Cossnell
A. Snow, for the Defendants Fitim Xhemajli and Sabit Xhemajli
ENDORSEMENT
RSJ RICCHETTI
Released: January 28, 2022