Court File and Parties
COURT FILE NO.: CV-19-80617
DATE: 2023/08/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1942091 ONTARIO INC., Plaintiff
AND
ZAK TATOMIROVIC-MANULA, Defendant
BEFORE: Justice A. Doyle
COUNSEL: Jason Rabin, Counsel for the Plaintiff Craig O’Brien, Counsel for the Defendant
HEARD: June 21, 2023
Ruling on summary Judgment motion
[1] The defendant lawyer, Zak Tatomirovic-Manula moves for summary judgment requesting a dismissal of the claims of professional negligence and breach of trust made by the plaintiff, 1942091 Ontario Inc. (194).
[2] Mr. Tatomirovi-Manula submits that at no time was he retained by 194 to register a mortgage on its behalf to secure a promissory note. There is no genuine issue requiring a trial as the court can make findings and apply the law based on the extensive record before it.
[3] 194 submits that there are serious issues of credibility to be determined which require a trial with viva voce evidence. In addition, a summary judgment on this action will have ramifications on the other two lawsuits brought by the plaintiff:
One case against the mortgage broker who had allegedly told him that the mortgage would be registered by the defendant in this case; and
Another case against another lawyer for failure to protect him and ensuring that security was in place for the loans he advanced.
[4] The property which was to be secured by the mortgage was sold on a power of sale on November 22, 2018. The sale proceeds, after payment of prior encumbrances, interest, administrative costs and legal fees did not yield sufficient funds to pay 194 for the entire outstanding balance owing.
[5] The debtor is insolvent as he declared bankruptcy.
[6] The court must determine if there is a genuine issue requiring a trial on the following questions:
Was the defendant retained by the plaintiff to register a mortgage on his behalf?
Did the defendant owe a duty of care to the plaintiff?
[7] I find that determination of these questions requires the court to make findings of fact regarding the conflicting evidence of the plaintiff and the defendant which cannot be determined on the record before the court.
[8] I find that the defendant has not established that there is no genuine issue requiring a trial.
[9] For the reasons that follow, the motion is dismissed.
Outline of Events
[10] Mr. Tatomirovic-Manula is a licensed lawyer of the Law Society of Ontario and practices in wills and estates, powers of attorney, immigration and real estate.
[11] 194 is a corporation incorporated pursuant to the laws of Ontario.
[12] John Falbo is the President and owner of 194 and is also the President of Castlestone Developments Inc. (Castlestone), which is involved in project management.
[13] In April 2017, Radoslaw Tworkowski planned to purchase an older single property at 223 Royal Avenue (the property) in the Westboro neighbourhood of Ottawa, demolish it and subdivide it into semi-detached lots. He would live in one unit and rent out the other unit.
[14] On April 8, 2017, Mr. Tworkowski signed an offer to purchase the property. His mortgage broker was Sabah Nahfaoui who was engaged to find mortgage financing for him.
[15] Mr. Tworkowski retained Mr. Tatomirovic-Manula to represent him on the purchase of the property with a closing date of October 5, 2017.
[16] Mr. Falbo was originally recruited to provide project management services for Mr. Tworkowski as the lenders required the involvement of an experienced management consultant.
[17] On April 12, 2017, Castlestone contracted with Mr. Tworkowski to provide project management services for the amount of $52,000 with a $25,000 deposit required and balance due on completion.
[18] Ms. Nahfaoui initially obtained financing with Magenta who required Mr. Tworkwoski to obtain a 25 percent down payment. She approached Mr. Falbo to finance the down payment on the understanding that he would be paid by the end of the year out of draws from the construction loan with Magenta.
[19] The ultimate closing date was on October 17, 2017 as the original proposed mortgagee for the first mortgage declined to proceed with the financing. Ms. Nahfaoui was able to locate other lenders to advance funds but not as construction financing.
[20] On July 26, 2017, Ms. Nahfaoui prepared an unsecured promissory note and an offer to finance agreement for a loan of $200,453.00 which were signed by Mr. Falbo on behalf of 194 and Mr. Tworkowski.
[21] 194 was to make a net advance of $154,730.50 to Mr. Tworkowski and the remaining balance of $45,722.50 represented the $25,000 deposit owing to Castlestone, interest, a lender commitment fee, brokerage fee, and legal fees. The agreement provided that the loan would form a charge against the property, would be registered one day after the closing date and would be second priority on title. Mr. Hank Witteveen is mentioned as the lawyer in this agreement.
[22] Mr. Falbo indicates that Ms. Nahfaoui instructed him to make the bank draft to Mr. Tatomirovic-Manula in trust and told him that Mr. Tatomirovic-Manula would be responsible for registering the charge on behalf of 194.
[23] To fund the closing date, Mr. Tatomirovic-Manula received the following funds:
Two Bank drafts from Toronto-Dominion Bank in the sum of $154,730.50 and $18,000;
Bank draft from the Royal Bank of Canada in the sum of $112,580;
Westboro Mortgage Investment which held the first mortgage in the amount of $445,900 registered on closing date; and
Black Hawk Consulting Inc. which held the second mortgage in the amount of $125,580.
[24] John Falbo, as the principal of 194, entered into the following series of unsecured promissory notes with Mr. Tworkowski:
As discussed, the first promissory note dated July 26, 2017 for the sum of $200,453 in favour of Hank Witteveen in trust. The document indicates: “We will be registering a mortgage for the same amount of $200,453 on October 6, 2017, one day after the closing of the property on 223 Royal Avenue, Ottawa, Ontario K2A 1T8.”
The second promissory note dated March 6, 2018 and the third promissory note dated March 29, 2018 were both for the total sum of $353,106.22. They subsumed the previous promissory note. The document indicates that “This loan will be registered against the property on April 10th, 2018 or when Firm Capital registers its first construction mortgage on 223 and 225 Royal Avenue […] new instructions will be sent to Michael Carey for the purpose of the registration of this loan.”
The fourth and final unsecured promissory note dated June 20, 2018 was for the sum of $154,968.37 and indicates that “We will be registering a mortgage for the same amount of $85,000 on or before June 22, 2018 whichever comes first… Draws approved by FCC and released by FCC will be paying down this loan.”
[25] Mr. Falbo confirmed with Mr. Tworkowski that these loans would receive a second priority mortgage on title to the property.
[26] In fact, the first mortgage was with Westboro Mortgage Investment LP in the amount of $445,900 registered on October 17, 2017 and the second mortgage was with P. Belisle Holdings Ltd. in the amount of $125,000 and registered on the same day. There was no mortgage in favour of 194 registered on that day.
[27] The property was severed on December 11, 2017 and January 26, 2018 so that the property was then known as 223 and 225 Royal Avenue.
[28] On April 10, 2018, a construction mortgage was registered in favour of Firm Capital Corporation (FCC) which replaced the two private mortgages that had been on Title. Mr. Tatomirovic-Manula’s retainer with Mr. Tworkowski ended on April 10, 2018.
[29] The mortgage broker, Ms. Nahfaoui requested that Mr. Tatomirovic-Manula register a second mortgage in favour of 194 but he declined to do so as he indicated that he would require authorization from FCC and an irrevocable direction from his client, Mr. Tworkoswksi.
[30] On June 6, 2018 and June 28, 2018, Michael Carey registered mortgages on behalf of 194 in the amount of $285,000 (which represented the original amount of $353,106.22 minus the amount received from FCC.)
[31] On June 18, 2018, FCC issued a Notice of Sale and sold the property under power of sale on November 22, 2018. FCC paid off the construction liens on the property. On December 21, 2018, Mr. Tworkowski made an assignment in bankruptcy.
[32] 194 has commenced separate actions against Michael Carey (lawyer) and Sabah Nahfaoui (mortgage broker) and FCC.
[33] On April 21, 2022 Justice Roger rendered a summary judgement on the FCC action (2022 ONSC 7373). The power of sale yielded $1,325,000 and after the prior encumbrances were paid including interest, administrative costs and legal fees, the balance remaining was $99,400.83 for 194, which is less than the amount owing to it.
Defendant’s Position
[34] Mr. Tatomirovic-Manula states that he had no knowledge of the unsecured promissory notes and his involvement in the real estate transaction was to represent Mr. Tworkowski on the purchase and severance of the property and registering a construction mortgage.
[35] Mr. Tatomirovic-Manula argues that he was never retained by 194 and never agreed to act for him. At all material times, 194 was represented by Chiarelli Cramer Witteveen LLP.
[36] If the court were to find that Mr. Tatomirovic-Manula owed a duty of care to a non-client third party in a commercial project, it would expand the duties owed by solicitors owed to non-clients thereby raising issues of limit liability and conflicts of interest.
[37] All four promissory notes named 194’s lawyer as Hank Witteveen, Dilshad Mohamed or Michael Carey (all of whom practised at Chiarelli Cramer Witteveen LLP) and provided that they would be responsible for registering the mortgage on title.
[38] Mr. Tatomirovic-Manula only meeting with Mr. Falbo was after the closing date. He had no knowledge that his client’s deposit was from 194.
Plaintiff’s Position
[39] Mr. Falbo states that on October 16, 2017, he personally attended at the defendant’s law office and hand delivered a bank draft for $154,730.50 on behalf of the defendant that was payable to the defendant’s law firm ‘in trust’.
[40] Mr. Falbo stated that the defendant was informed by him of the loan to Mr. Tworkowski, his client, and provided him with a copy of the written agreement. He said he was not represented by counsel as his lawyer had just retired to become a Deputy Judge. He was asked for identification and initially provided a health card but was told that it was not sufficient. He provided his Mastercard and driver’s license and Mr. Tatomirovic-Manula photocopied them. Mr. Tatomirovic-Manula accepted the bank draft and undertook to register the mortgage for the plaintiff once the construction financing was in place.
[41] The October 16, 2017 meeting between Mr. Falbo and Mr. Tatomirovic-Manula was documented in Mr. Falbo’s journal and corporate minute book. There is also a text message from Mr. Falbo to the mortgage broker confirming his intent to deliver the bank draft in person to Mr. Tatomirovic-Manula.
[42] 194 argues that Mr. Tatomirovic-Manula owed a duty of care to 194 as he knew that Mr. Falbo was placing express reliance on his undertaking to register a mortgage. There is also a duty of care as 194 was an unrepresented party.
[43] Unbeknownst to him, Mr. Tworkowski had already arranged second priority financing through another private lender.
[44] 194 submits that there are serious issues of credibility to be determined which require a trial with viva voce evidence. In addition, a summary judgment on this action will have ramifications on the other two lawsuits brought by the plaintiff against the mortgage broker who had allegedly told him that the mortgage would be registered by the defendant in this case and against another lawyer for failure to protect him and ensuring that security was in place for the loans.
Legal Principles
[45] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”) provides that a court must grant a summary judgment when there is no genuine issue requiring trial. The powers of the court are set out below:
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[46] The moving party initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. It is only after the moving party has met their burden that the onus shifts to the responding party to show that the claim has a real chance of success and there are genuine issues requiring a trial.
[47] Where a summary judgment is refused or granted only in part pursuant to rr. 20.05(1)-(2), the court can specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.
[48] As stated in Hryniak v. Maudlin,2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49, there is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact; (2) allows the court to apply the law to the facts; and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.
[49] A responding party is required to put its best foot forward and cannot simply assert a bald denial; rather, it must set out relevant evidence with specific facts and coherent evidence thus demonstrating that there is a genuine issue for trial.
[50] The Supreme Court in Hryniak v. Mauldin set out a two-step test for summary judgment:
a. First, the motion judge must determine if there is a genuine issue requiring a trial based on the written record and without resorting to its new powers under Rule 20.04(2.1) or 20.04(2.2); and
b. If there appears to be a genuine issue requiring a trial, the motion judge must then determine if the need for a trial can be avoided by using the new powers under Rule 20.04(2.1) or 20.04(2.2).
[51] In Joshi v. Chada, 2022 ONSC 4910 at para. 66, Justice Glustein provided a helpful overview and summary of the general principles a motions judge must follow in deciding summary judgment motions under the Hryniak regime:
[66] The relevant legal principles applicable to summary judgment are as follows:
(i) The purpose of r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is to (a) eliminate claims that have no chance of success at trial, and (b) provide judges with fact-finding powers to be used on a summary judgment motion: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 44-45, and 66;
(ii) The evidence on a summary judgment motion must enable the motion judge to be confident that they can fairly resolve the dispute: Hryniak, at para. 57;
(iii) The motion judge’s enhanced powers allow the court to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81, at para. 83;
(iv) The focus of a summary judgment motion is not on what kind of evidence could be adduced at trial, but rather on whether a trial is required: Hryniak, at para. 56;
(v) The court is entitled to assume that it has all the evidence that would be available at trial related to the matters at issue: Portuguese Canadian Credit Union v. Pires, 2011 ONSC 7448, at para. 11, aff’d 2012 ONCA 335;
(vi) The moving party has the onus of proving that there is no genuine issue requiring a trial. Then, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, at paras. 26-27, leave to appeal refused, 2014 ONSC 3016;
(vii) Summary judgment is not appropriate if the credibility of the parties is squarely in issue and requires a trial: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, at para. 9;
(viii) The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. “It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required”: Cook v. Joyce, 2017 ONCA 49, at para. 92, citing Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55; and
(ix) The court must take “great care” in assessing credibility and reliability on affidavit evidence, since “[e]vidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice”. Consequently, the motion court must “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 (C.A.), at para. 44.
Discussion
[52] The issues are:
Was the defendant retained by the plaintiff to register a mortgage on his behalf?
Did the defendant owe a duty of care to the plaintiff?
[53] The determination of these questions is dependent on the court making certain findings of fact.
[54] There is contradictory evidence.
[55] Mr. Falbo states that he personally dropped off the bank draft to Mr. Tatomirovic-Manula who promised him that he would register a mortgage on his behalf.
[56] Mr. Tatomirovic-Manula denies that this meeting took place. He does not recall how his office received the $154,000 down payment.
[57] Based on the record and the brief cross-examination on this issue, the court cannot, with confidence, find that there is no genuine issue requiring trial.
[58] The documentary evidence filed by Mr. Falbo consisted of multiple pages of his diary during this relevant period of time. His diary notes confirm that on October 16, 2017 he spoke to the mortgage broker about the mortgage and she told him to bring the draft to Mr. Tatomirovic-Manula. His October 16, 2017 notes detail his meeting with Mr. Tatomirovic-Manula and that he said he would register the mortgage.
[59] In contrast, Mr. Tatomirovic-Manula does not have evidence of how the bank draft payable to his firm was received. No evidence of courier slip or record keeping of the receipt of this cheque or lawyer’s note of confirmation of receiving this down payment has been presented. He did not ask the receptionist he says would have received couriers, so her evidence is not before the court.
[60] There is other conflicting evidence that could suggest that the defendant was not responsible for the registration of the mortgage.
[61] For example, the loan agreements clearly state that the Chiarelli firm was going to register the mortgage.
[62] It is indeed bizarre that Mr. Falbo would trustingly give significant funds to a lawyer he had just met. But he was going on the instructions from the mortgage broker who had assured him that Mr. Tatomirovi-Manula would register the mortgage.
[63] Also, there are no follow up calls or notes on the diary notes filed that he followed up with Mr. Tatomirovic-Manula regarding the mortgage.
[64] However, the diary is replete with Mr. Falbo’s inquiries with the mortgage broker and Mr. Tworkowski inquiring as to when the mortgage would be registered. Since the construction mortgage was not obtained on the October 17, 2017 closing, Mr. Falbo was anxious for Mr. Tworkowski to obtain construction financing and the arrangement was that he would be paid from draws from this construction mortgage. This was not registered until April 2018.
[65] The diary sets out in detail the construction of the property, severance, inspections, footings, construction fence complaints, electrician issues. On November 8, 2017, after another inquiry from Mr. Falbo regarding the status of the construction mortgage, the mortgage broker retorted: “let me do my job”.
[66] The court has no confirmation or evidence from the mortgage broker that these conversations with her took place. She assured him that Mr. Tatomirovic-Manula would be responsible for the registration of the mortgage. This type of evidence would be helpful to the court in assessing the credibility and reliability of Mr. Falbo.
[67] Mr. Tatomirovic-Manula’s credibility is also an issue. He has no evidence to confirm the details of the receipt of these funds or any office policy in place to confirm how a deposit was received and its source.
[68] Even if the court accepts that this meeting on October 16, 2017 took place, the court is still left with a question of whether Mr. Tatomirovic-Manula owes a duty of care to a third party who believed that he would be protected by a member of the legal profession. If the court accepts Mr. Falbo’s evidence that he told Mr. Tatomirovic-Manula that he was not represented as Mr. Whiteveen had retired from practice, then there is an issue as to whether Mr. Falbo should have been told that he required independent legal advice.
[69] Based on this record, the court cannot make a determination whether the defendant breached the Rules of Professional Conduct by giving an undertaking that he could not fulfil or not advising an unrepresented person that he would require a separate lawyer.
[70] For the court to find that a lawyer is not being truthful and ethical in the above circumstances, the court would require viva voce evidence from the parties.
[71] On the record before it, the court finds that there are genuine issues for trial.
[72] The court cannot say that this is a total fabrication on Mr. Falbo’s part. He keeps records of business and personal meetings in his diary that he keeps due to his Asperger’s Syndrome and being on the autism spectrum. He states that he trusts people too much and in order to protect himself he keeps a diary to record events.
[73] There are also texts between Mr. Falbo and the mortgage broker confirming that he will bring a bank draft to Mr. Tatomirovic-Manula and that she had sent an email to him. These texts could be corroborative of his testimony and will certainly be relevant in his action against the mortgage broker.
[74] The court has other evidence regarding the responsibility and terms for the registration of the mortgage. The agreements between Mr. Tworkowski and 194 confirm that their intention was to secure the loans from 194 against the property as second to the construction financing.
[75] As noted above, construction financing was not initially available but became available in April 2018 when the FCC construction mortgage was registered.
[76] The other concern is that the evidence of other key players is not before the court. As stated earlier, the mortgage broker’s evidence is relevant in determining the sequence of events.
[77] In addition, there are two other actions involving other key players and a ruling here may result in inconsistent findings. A decision here would be in a manner of speaking a partial summary judgment. Although this is not a case involving all three defendants and hence not in a true sense a partial summary judgment, it does engage some of the principles set out in the cases dealing with partial summary judgment.
[78] The Ontario Court of Appeal in Butera v. Chown, 2017 ONCA 783, stated:
[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi (2014), 120 O.R. (3d) 438, [2014] O.J. No. 2745, 2014 ONCA 450 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche (2016), 133 O.R. (3d) 561, [2016] O.J. No. 6319, 2016 ONCA 922. Baywood was decided in the context of a motion for summary [page568] judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.
[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial; and (ii) whether granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.
[79] In Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, the Court of Appeal held:
[54] The motion judge correctly articulated the following legal principles governing partial summary judgment motions, at paras. 42-43 of his reasons. Partial summary judgment is a rare procedure, reserved for an issue or issues that may be readily bifurcated from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings.
[55] However, in my view, the motion judge made an extricable error in principle in granting partial summary judgment: he failed to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. The issues decided by the motion judge on the Motion cannot be readily bifurcated from those left for determination at trial. Because the issues are inextricably intertwined, deciding them on the Motion leads to the possibility of inconsistent findings and substantive injustice.
[80] In that case the Court of Appeal found that there was “a significant overlap on the facts relating to the issues for trial and those underlying the motion judge’s determinations. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and further productions, will have a fuller appreciation of what transpired and the relationships among the parties, an appreciation that is crucial to fairly decide the allegations in the Claim” (para. 59).
[81] In this case, I find that a summary judgment does not serve the objectives of proportionality, efficiency, and cost effectiveness. It is not cheaper, faster, or more efficient. This is not one of the clearest of cases in which partial summary judgment is appropriate and it is not in the interests of justice.
[82] The legal issues in this file may be distinct from 194’s case against the mortgage broker and its previous lawyer. However, the facts and basis for Mr. Falbo’s understanding as to who would be registering the mortgage, the circumstances of his dealings with the mortgage broker, and the findings of facts that the court must make are intertwined with this case.
[83] Findings of facts in this motion will have serious ramifications on the other two actions and summary judgment will not advance the litigation as a whole as credibility findings would have to be made for the court to render summary judgment here and hence there is a risk of inconsistent findings of fact.
[84] I am not satisfied that I can weigh the evidence, evaluate the credibility of the deponents or draw inferences on the evidence based solely on the affidavits submitted or the examinations conducted. I find that it is in the interest of justice that the judicial assessment of the evidence be exercised at a trial with viva voce evidence. At this stage of the proceeding, the evidence of Mr. Falbo and Mr. Tatomirovic-Manula is diametrically opposed and the court cannot make findings based on this record alone.
[85] I find that the multiple findings of fact on conflicting evidence from witnesses (some of whom are not part of this record) make a summary judgment motion an inadequate substitute for the trial process.
[86] I decline to exercise my powers under rule 20.04 as a trial with all the players is necessary.
[87] Parties had indicated that the three actions may be joined at some point, and this is worth serious consideration.
[88] Accordingly, the motion is dismissed.
[89] I encourage the parties to agree on the issue of costs. If the parties cannot resolve this issue, then the plaintiff may provide two-page costs submissions by August 28, 2023, the defendant may file his two-page costs submissions by September 11, 2023, and the plaintiff may file a one-page reply by September 18, 2023.
Justice A Doyle
Date: August 14, 2023
COURT FILE NO.: CV-19-80617
DATE: 2023/08/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: 1942091 Ontario Inc., Plaintiff
AND
Zak Tatomirovic-Manula, Defendant
BEFORE: Justice A. Doyle
COUNSEL: Jason Rabin, Counsel for the Plaintiff Craig O’Brien, Counsel for the Defendant
Ruling on summary Judgment motion
Justice A. Doyle
Released: August 14, 2023