Court File and Parties

COURT FILE NO.: CV-14-512513

DATE: 20220207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sheldon Libfeld, Mark Libfeld, Jay Libfeld and Corey Libfeld, Plaintiffs

AND:

Patica Corporation, Kingsdale Capital Markets Inc., Patica Securities Limited, David Prussky, Bennett Jones LLP, Alan Ross and John Kousinioris, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Adam Brunswick and Harvin Pitch, for the Plaintiffs Ian M. Hull and Allan Dick, for Corey Libfeld

HEARD via teleconference: February 7, 2022

ENDORSEMENT

[1] The solicitor for the Plaintiffs requested an urgent case conference as the action has been set down for trial and will be dismissed if trial dates are not set by June 2022. In order to fix a trial date, a mediation must have taken place. That has not occurred, which prompted the request for an urgent case conference, which was sent to me in my capacity as the lead judge for civil trials in Toronto. Mr. Dick and Mr. Hull objected to the case conference and suggested it not be convened until after the disposition of a motion to be heard February 28, 2022. I convened today’s case conference. Defence counsel were not in attendance. Mr. Pitch sent a summary of his position as did Mr. Hull and Mr. Dick on behalf of the Plaintiff Corey Libfeld (“Corey”). I did not have any affidavit evidence. Mr. Pitch is counsel of record for the 4 Libfeld brothers including Corey in the within action. Mr. Hull and Mr. Dick appear only for today’s purposes to make submissions on behalf of Corey. Rule 50.13 permits a judge to convene a case conference and to make an order if appropriate. I see no reason to reject the request of Mr. Pitch in the circumstances. I can deal with the issues of the timing of the mediation and the fixing of a trial date.

[2] This action is a claim by the 4 Libfeld brothers against the Defendants based in negligence. Corey has another action in which he has sued other Defendants in a personal claim arising from the construction of his house. The Teplitsky Colson firm acts for Corey in that action. There is also other litigation involving the Libfeld brothers in which Justice McEwen has issued an order, although I was not provided with his endorsement.

[3] I am not aware of the history of this action or why 8 years after the claim was issued, it has not been fixed for trial. For today’s purposes, I am not concerned about what has transpired over the years. Counsel agreed to proceed to mediation with Linda Rothstein on November 29, 2021 and materials were delivered and the parties were ready to attend. Unfortunately, at the last minute, the mediator could not attend so it did not proceed. Such things happen and no-one is complaining about that late cancellation. A new date of March 9, 2022 was secured for the mediation.

[4] In October, the Teplitsky Colson firm brought a motion to be removed as counsel of record for Corey in his personal action. That motion is now returnable February 28 and is being opposed by Corey, who now takes the position that the Teplitsky Colson firm cannot act on his behalf in the within action and therefore the mediation cannot proceed on March 9, 2022. The other 3 Plaintiffs wish the mediation to go ahead.

[5] Mr. Pitch submits that Corey was prepared to attend the mediation on November 29, 2021 and nothing has changed. There are numerous parties and lawyers who have confirmed the new date for the mediation and if it is adjourned, there will be significant delay. Importantly, the Plaintiffs will not be able to select a trial date and the action will be administratively dismissed in June.

[6] Mr. Dick argues that there is no urgent need for the mediation, and it can be rescheduled after the hearing of the motion for the removal of the Teplitsky Colson firm on February 28. Depending on the outcome, Corey will have the opportunity to consider his legal representation and the mediation can take place in a few months, without any prejudice to any of the parties.

[7] In Toronto, before an action is fixed for trial, there must have been a mediation. I am not in a position to assess whether or not Mr. Pitch has issues which would preclude his representation of all of the Plaintiffs. Corey agreed to the mediation with Ms. Rothstein just over 2 months ago yet now he will not agree to attend, even though the other Plaintiffs wish to go ahead with it on March 9. He asserts that the Teplitsky Colson firm cannot act on his behalf in this matter, and perhaps cannot act for any of the Libfeld brothers, yet he is opposing the removal of the firm as his counsel in his personal action arising from the construction of his house. Those positions are difficult to reconcile. Similarly, I am not impressed by the fact that in the 2 months since he has been in receipt of the motion record (although Mr. Brunswick says the motion was served in October 2021 so it may be longer than 2 months), Corey has seemingly done nothing about retaining new counsel in this action, knowing that the mediation was set to proceed and then adjourned to a new date.

[8] If there are serious issues with the Teplitsky Colson retainer, then the mediation cannot proceed in March. The action is ready to fix a trial date and counsel agree the trial time is 3 weeks. It is unfair in my view for Corey to hamper the ability of the other Plaintiffs to move this action forward to a trial date.

I make the following order:

[9] The mediation is to be held on or before June 30, 2022.

[10] Corey Libfeld is to determine the issue of his legal representation forthwith after the release of the reasons arising from the motion in his personal action which is returnable February 28, 2022. I have made it clear to counsel that Corey is to act with dispatch on this point.

[11] This action will appear on the trial scheduling court list of April 11, 2022 at which time I expect counsel to be in a position to fix a trial date and to file a timetable for the service of any expert reports that remain outstanding.

Date: February 7, 2022