Court File and Parties

COURT FILE NO.: 1684/18 DATE: 2023/07/14 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Stefan Balogh et al., Plaintiff AND: Matthew Johnson et al., Defendant

BEFORE: Grace J.

COUNSEL: Karl Arvai, for the Plaintiff Alexander Dobson, for the Defendant

HEARD: July 14, 2023

Endorsement

[1] The defendant’s motion was triaged by local administrative judge Mitchell J. and added to today’s 20 case motion list on the ground of urgency.

[2] Justice Cook had heard the defendant’s motion for an order that Stefan Balogh attend for a neuropsychological assessment with Dr. Kerry Lawson on May 17, 2023. Decision was reserved.

[3] Tentative arrangements had been made by the defendants for the assessment to be conducted in London on June 26, 2023. That fact was set forth in the motion materials and was clearly known to all.

[4] In good time on June 23, 2023, Justice Cook’s initial endorsement was released to the parties’ counsel. In part she wrote:

Given the increasing urgency of the matter, I am exercising my discretion to render a decision on the motion with written reasons to follow.

Delivery of an endorsement of that kind had been promised by Justice Cook on June 22, 2023. The defendant’s counsel advised Mr. Arvai of that fact and said that she trusted “that any necessary steps will be taken to see that what needs to be done gets done”.

[5] Justice Cook ordered that Stefan Balogh attend the proposed examination as tentatively scheduled: that is to say:

a) with Dr. Kerry Lawson, a neuropsychologist;

b) on June 26, 2023;

c) at a London, Ontario address she specified;

d) at 9:30 a.m.

[6] The motion judge allowed that the parties could agree on another place within London and/or another time.

[7] E-mails between, or on behalf of, the parties’ lawyers started at 10:27 a.m. on June 23, 2023 with a message from Mr. Arvai’s office. It sought advice as to whether the defendants would consent to an adjournment of the trial, currently on the September 18, 2023 running list, “so that I may seek further instructions from my client with regards to his attendance with Dr. Lawson on Monday.”

[8] Aside from an e-mail from the defendant’s counsel inquiring about Mr. Balogh’s need for transportation, no response seems to have been sent to Mr. Arvai’s e-mail. (In fairness, counsel had told Mr. Arvai of her commitment to that day.) At 4:46 p.m., Mr. Arvai advised that Mr. Balogh would not attend the assessment as ordered because he might want to seek leave to appeal Justice Cook’s order but could not make that determination until reasons for decision were reviewed. An invitation was extended to make alternative arrangements if leave to appeal was not sought.

[9] Ottawa-based Dr. Lawson was nonetheless in London for the purposes of the assessment Cook J. had ordered. Further e-mails were exchanged when Mr. Balogh failed to appear. His counsel did not relent. A no-show invoice was delivered by Dr. Lawson. This motion followed.

[10] At the outset, Mr. Arvai requested a one-week adjournment. I refused it. A 2-page e-mail was sent on his behalf to the trial coordinator yesterday. It contained information already set forth in the defendants’ motion record. It attached e-mails that were there too. The issue is a narrow one: was there a good reason for Mr. Balogh to have not attended the assessment? The answer is a resounding “NO”.

[11] Court orders are not suggestions. Compliance is not optional. There are to be respected and obeyed, unless and until some other court order stays or overrides them or, of course, an automatic stay is imposed by statute or procedural rule.

[12] I recognize, fully, that Justice Cook had not yet explained why the examination was ordered, but ordered it was. The motion she heard was a long motion. A substantial record was compiled. The timeline – May 17 to June 26 – was already tight. It should have come as no surprise to anyone that the decision would take time.

[13] Knowing the importance of June 26 and her inability – undoubtedly because of the weight of the schedules judges are bearing – to release reasons, Justice Cook told the parties that Mr. Balogh would have to participate in the requested assessment.

[14] That possibility was, of course, known by Mr. Arvai. He could have been readying materials for a motion for leave to appeal and a motion to stay (since one would not arise automatically) as a precautionary measure. He did not do so. Nor did he take that step – albeit hurriedly – when the endorsement arrived in good time on June 23.

[15] Another option was for Mr. Balogh to attend as he was required to do, under a written communication to the defendants’ counsel that he was doing so without prejudice to an appeal, if leave was granted, and to his rights under whatever order the Divisional Court granted.

[16] What Mr. Arvai and his client were not entitled to do was disregard the Court’s order based on his/their own say so. Mr. Arvai’s view that the order was wrong, unsupported, too late, triggered other considerations or complications that should be addressed, was utterly irrelevant. When the Court speaks, the parties and their lawyers are to listen and comply.

[17] The wording of the endorsement and order made could not have been more clear. The suggestion counsel could agree to a different date, as opposed to the time (9:30 a.m.) or place within London (151 York Street), was disingenuous and tactical. In any event, the consent Mr. Arvai sought was not forthcoming.

[18] While tempted to say more, I will refrain except to say better is expected of counsel. The administration of justice demands it. It cannot function without it.

[19] For the reasons given, the relief sought in paragraphs (a) through (f) of the notice of motion dated July 11, 2023 is granted in its entirety. I have reviewed the draft order at Caselines A468-A471. These revisions should be made (remembering the action involves 2 plaintiffs):

para.3 — (same) should refer to the plaintiff Stefan Balogh and he should receive not less than 4 calendar days’ notice;

para.4 — the resulting expert report should be provided within 35 days;

para.6 — this motion should not have been required. That statement lies at the plaintiff’s feet. No costs outline was provided. The all-inclusive sum of $1,500 strikes me as fair and reasonable. The bulk of the 450 or so page motion record consists of previously filed material.

The rest of the operative paragraphs are fine as written.

[20] I note that the draft order did not include the relief sought in paragraph (g) of the notice of motion. I am confident the order I grant will be complied with because, all else aside, if not, relief of that kind would warrant most serious consideration.

Released: July 14, 2023 Grace J. Transcribed: July 27, 2023