Court File and Parties

COURT FILE NO.: CV-23-28 DATE: 2023-06-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jack Huitema, Applicant AND: Tiffany Longarini, Respondent

BEFORE: The Honourable Justice M. Bordin

COUNSEL: T. David Marshall, for the Applicant Clifford Lloyd, for the Respondent

HEARD: June 9, 2023 at Cayuga by Zoom

ENDORSEMENT

Nature of Motion

[1] The applicant seeks the extension of an interlocutory motion until the determination of the issues in the application. The respondent asserts the applicant failed to disclose material facts to the court on the initial ex parte motion for an interim injunction.

Brief History

[2] The file in CaseLines is disorganized and contains what appear to be duplicates of motion records and factums. There are no motion confirmation forms directing the court to what materials the parties intend to rely upon. It is left up to the court to sort it out. The prior orders have not been uploaded to CaseLines.

[3] After two hours of reviewing the CaseLines materials I have determined that the following is what appears to have occurred to date.

[4] The applicant issued a notice of application seeking relief under section 248 of the Business Corporations Act, R.S.O. 1990 c. B.16. The applicant brought a motion without notice for procedural relief and for an interim injunction.

[5] The applicant filed a motion record containing the affidavit of Jack Huitema dated May 2, 2023, in support of the ex parte motion.

[6] The appellant filed a factum dated May 5, 2023.

[7] On May 9, 2023, Justice Henderson granted the interlocutory injunction on an ex parte basis as he was satisfied that the applicant had met the three-part test for an interim injunction. The motion was adjourned to May 23, 2023, to effect service on the respondent.

[8] The applicant then filed a supplementary motion record containing the affidavit of Jack Huitema dated May 16, 2023, in support of the return of the motion.

[9] On May 23, 2023, Justice MacNeil extended the injunction to June 9, 2023, subject to further orders clarifying the scope of the injunction and obligations of the parties.

[10] I cannot tell which factum was relied on before Justice MacNeil.

[11] It appears that on the morning of May 23, 2023, just before the hearing before Justice MacNeil, the respondent filed the affidavit of Konstantine Dimakis. Mr. Dimakis is the assistant to the respondent’s lawyer.

[12] The applicant then filed the affidavit of Rankin Lutz dated May 31, 2023, in support of the motion for today’s hearing.

[13] It appears that someone by the name of Shauna MacPhail was examined on May 30, 2023. The transcript has not been filed. I cannot readily determine at whose request she was examined.

[14] The applicant filed a supplementary factum dated June 2, 2023. It does not appear to reference Justice MacNeil’s order, but seeks the extension of Justice Henderson’s order.

[15] The respondent filed further affidavits from Konstantine Dimakis sworn June 5, 2023, and June 7, 2023.

[16] The respondent has not personally provided any sworn evidence.

[17] The factums filed by the applicant are not helpful. They do not set out a summary of the facts the applicant relies on. Given that this is the third time this matter is before the court, the factum does not assist the court by providing a brief history of the proceedings giving rise to today’s appearance. It is left to the court to sort that out from the CaseLines file.

[18] The respondent’s factum purports to incorporate “Paragraphs 7 to 99 of the Respondent’s Response and Cross Application” into the facts portion of her factum. First, there is no such pleading in the Rules of Civil Procedure. Secondly, the document with this name in CaseLines is not sworn and therefore does not contain facts as intended by this section of a factum. Finally, facta have page limits. Adopting by reference 92 paragraphs from another document is improper.

[19] In her supplementary factum the respondent asserts that one of the issues to be determined is whether the applicant, a private individual, breached the respondent’s Charter rights. No legal authorities are cited in support of this dubious proposition. The factum also suggests that punitive damages be awarded on the motion for an interim injunction. Again, no legal authority is cited for the proposition that punitive damages could be awarded to a party responding to such a motion at the motion.

Directions

[20] This matter is not ready for a hearing today. The court should not be using its limited resources to vet the parties’ files. It should not take 2 hours to try to determine the status of a proceeding and the materials the parties seek to rely on for a hearing. This leaves no time for the court to read the materials and prepare for the hearing.

[21] This motion is adjourned to June 26, 2023, at 10 am for a 2.5 hour hearing.

[22] On a without prejudice basis, the orders of Justice Henderson as extended and modified by Justice MacNeil are extended until the hearing date of the motion to be dealt with by the hearing judge.

[23] The parties are directed and ordered to:

a. Delete duplicate materials from CaseLines which they have filed;

b. Each party is to file one factum that sets out the history of the proceedings, the facts relied on by the party with citations to the source, which includes legal authorities to assist the court and which complies with rule 4.05.3 of the Rules of Civil Procedure;

c. The page limit for each party’s factum is extended to 25 pages;

d. Each party is to prepare one bookmarked, internally hyperlinked, brief for the next return of the motion which contains all the affidavits and exhibits and transcripts upon which each of the parties intends to rely and file it in CaseLines;

e. The applicant is to file each of the issued orders in the Court Documents section of CaseLines;

f. No further affidavits or evidence is to be filed by either party;

g. Each party is to ensure their compendium complies with rule 4.05.3 of the Rules of Civil Procedure and the practice directions.

h. The parties are to file in CaseLines, two full days before the hearing of the motion, a joint motion confirmation form that sets out the materials to which the presiding judge will be referred.

[24] The parties attention is drawn to the following requirements in the Provincial Notice to the Profession, Parties, Public and the Media Effective August 2, 2022:

II. ADDITIONAL PROCEDURES GOVERNING CIVIL MATTERS

1. Parties’ Responsibility to Provide Accurate Estimates of Required Hearing Time

Parties must give careful consideration to what is to be covered in the hearing time, the pace at which documents and authorities can reasonably be reviewed, and the time needed for oral argument on the issues raised. …

Inaccurate estimates for the time required for hearings may result in a case being adjourned (either before or during the hearing) and rescheduled for a realistic time estimate with no expedition of the rescheduling. There may also be costs consequences.

2. Compendium Required

For hearings or conferences in civil matters, in accordance with rule 4.05.3(3) of the Rules of Civil Procedure, each party must upload to CaseLines a compendium containing key materials that will be referred to in oral argument (e.g., fair extracts of documents, transcripts, previous orders, authorities, etc.). The compendium must include only those materials that will be referred to in argument and must have a table of contents hyperlinked to the sections within it and hyperlinks to authorities cited.

3. Materials uploaded into CaseLines that are not brought to the attention of the judicial officer at the hearing may not be considered

The oral hearing is the occasion when arguments must be succinctly set out by the parties. Parties must bring to the attention of the court all relevant material facts and the authorities that establish the legal proposition relied upon. It is not sufficient to merely upload filed materials to CaseLines. Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers’ judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument.

4. Books of Authorities and Facta

Each party’s factum shall hyperlink authorities to a publicly available, free website such as, whenever they are available on such a website.

The factum must include paragraph references each time a case is cited in the factum, with the applicable paragraph also hyperlinked.

Authorities that are not available on a free public website, such as unreported decisions and excerpts from textbooks, shall be included in an abbreviated book of authorities and filed electronically in PDF format. The abbreviated book of authorities shall include a table of contents that has internal hyperlinks to the cases and textbook excerpts contained within it.

M. Bordin, J. Date: June 9, 2023