Court File and Parties

Court File No.: CV-22-00679639-0000 Date: 2023-09-21 Superior Court of Justice - Ontario

Re: Professional Court Reporters Inc. v. Amar Singh Nijjar et al Before: Associate Justice Rappos

Counsel: Jeremy Sacks, for the Plaintiff Patrick Bakos, for the Defendants

Heard: September 15, 2023 (via videoconference)

Endorsement

[1] As recently described by Justice Koehnen in Miller v. Ledra et al., 2023 ONSC 4656, there is a “motions culture” in Toronto where:

“things that should be resolved in a practical way in a short conversation or case conference are subjected to the lengthy formal processes of motions or applications…” [paragraph 20]

“There is a great deal of litigation in which one side has an interest in delay; usually the defendant or respondent. If a party knows they can delay litigation by between 14 and 16 months simply by bringing or insisting on a motion, they often do so. As ever more parties learn of those delays, the number of motions increases, thereby creating even longer delays.” [paragraph 21]

[2] The case before me is an example of such a situation.

[3] The Plaintiff has brought a motion effectively seeking two heads of relief.

Discovery and Amendment to Statement of Claim

[4] The first head of relief is a request for an order: (a) directing the Defendants to deliver their affidavit of documents; (b) directing the Defendants to attend examinations for discovery; and (c) granting leave to amend the Statement of Claim.

[5] The Plaintiff commenced this action on April 11, 2022 and has asserted that certain of the Defendants transferred funds and assets to the other Defendants with the intent to defeat, hinder, delay and prejudice their creditors.

[6] The Statement of Defence was served on June 3, 2022.

[7] Counsel to the parties discussed delivery of affidavits of document. On July 27, 2022, counsel for the Plaintiff circulated a draft Discovery Plan, and a draft amended Statement of Claim.

[8] The Plaintiff served its affidavit of documents on August 9, 2022, and asked that the Defendants deliver their affidavit of documents by August 31, 2022. Counsel to the Defendants did not object to this date.

[9] The Plaintiff requested that the Defendants’ affidavit of documents include documents that had been requested during an examination in aid of execution of the Defendant Amar Nijjar conducted on June 2, 2022, which is discussed further below.

[10] The Defendants have not served their affidavit of documents to date.

[11] The Plaintiff served its motion record on November 22, 2022, with a return date of September 15, 2023.

[12] According to counsel, they did not discuss this motion until early this week. That means that almost 10 months went by without the parties discussing a potential resolution of the motion.

[13] In my view, that is a clear and total failure of the parties to adhere to the Three Cs of communication, cooperation and commonsense.

[14] I asked counsel to the Defendants to explain why his clients had failed to deliver an affidavit of documents in accordance with the Rules of Civil Procedure. His response was that it was unclear what documents were to be produced, given the second portion of the Plaintiff’s motion, which is discussed below.

[15] In my view, that is not a sufficient reason why the Defendants did not satisfy their obligations under the Rules of Civil Procedure.

[16] As stated by the Court of Appeal in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, “[t]he fundamental obligation to disclose relevant documents and produce those that are not privileged should be performed automatically by a party, without the need for court intervention…parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence.” [paragraph 43].

[17] The parties have now agreed that the Defendants will deliver their affidavit of documents by November 15, 2023, and examinations for discovery will be held by March 28, 2024. The Defendants also consent to the amendment to the Statement of Claim sought by the Plaintiff.

[18] I have asked counsel to agree to a form of order that provides for the foregoing. They may send a draft order to Assistant Trial Coordinator Kimi Sharma (kimi.sharma@ontario.ca) for my review.

[19] In terms of costs, the Plaintiff seeks $2,500 all-inclusive for this part of the motion. The Defendants argue that, as the motion is on consent, no costs should be awarded.

[20] The Plaintiff should never have been required to seek this relief from the Court. The Defendants unnecessarily required the Plaintiff to bring this motion.

[21] In my view, exercising the discretion afforded to me under section 131 of the Courts of Justice Act, and taking into account the factors listed in rule 57.01 of the Rules of Civil Procedure, I order that the Defendants shall pay $2,500 in costs to the Plaintiff within 30 days of the date hereof.

Refusals and Answers to Undertakings

[22] The Plaintiff is a judgment creditor of two of the Defendants in this proceeding, Pistachio Financier Corp. (“Pistachio”) and Real Crowd Capital Inc. (“Real Crowd”) pursuant to the judgment of Justice Pollak dated July 28, 2021 and December 8, 2021.

[23] On June 2, 2022, Amar Nijjar was examined in aid of execution on behalf of Pistachio and Real Crowd. In connection with the examination, there are 59 refusals and four (4) undertakings. A number of the refusals concern production of various documents, including banking records.

[24] The second head of relief sought by the Plaintiff was an order: (a) directing Pistachio and Real Crowd to answer the undertakings and refusals, or in the alternative requiring documents to be produced in the affidavit of documents; and (b) requiring CIBC to produce documentation sought during the examination.

[25] I agree with counsel to the Defendants that this part of the motion should have been brought in the court proceeding where the judgement was issued, as opposed to this proceeding.

[26] For the motion, the Plaintiff has not filed a factum or a compendium. As this motion was scheduled for 75 minutes and is not a “long motion” in Toronto, it was the understanding of counsel to the Plaintiff that such documents were not required.

[27] As set out in the Consolidated Civil Provincial Practice Direction (effective June 15, 2023) at Part I(F) section 28, “each party in a hearing using CaseLines 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, etc.).” This is also stated at Part II(A) section 59(g).

[28] With respect to factums, Part I(I) section 45 does provide that factums “are required for long motions and encouraged for all other motions unless otherwise directed by a judge or associate judge.”

[29] However, I echo the view expressed by Regional Senior Justice Edwards in Lepp v. The Regional Municipality of York, 2022 ONSC 6978 at paragraph 15 that “While it is not every motion that may require a factum if your motion is important enough to the outcome of the case you may want to consider filing a factum even where the Rules specifically don’t require a factum.”

[30] Filing a factum for any motion that is opposed should be considered best practices for all counsel.

[31] As a result of the foregoing, in my view an adjournment of this part of the motion is required, so that the parties may file facta and compendia for the motion, all of which must be filed in accordance with the Rules of Civil Procedure and the applicable Practice Directions and Notices to Professions.

[32] Accordingly, this part of the Plaintiff’s motion is adjourned sine die. All materials should be served and filed in the appropriate proceeding.

[33] I strongly urge to counsel to discuss the refusals and undertakings in a timely fashion and see whether they can be resolved without the need for court intervention.

Associate Justice Rappos DATE: September 21, 2023