Court File and Parties
COURT FILE NO.: CV-23-00692772-0000 DATE: 2023-10-30 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
EDENSHAW TORONTO DEVELOPMENTS LIMITED Plaintiff
– and –
DIAMOND LUXURY DEVELOPMENTS CORP., 12370751 CANADA INC., IMRAN AHMED and MOHAMMED MUSTAFA ZIA Defendants
Counsel: Anisha Bhardwa, for the Plaintiff Matthew Karabus and Jenna Kara, for the Defendant, Diamond Luxury Developments Corp.
HEARD: October 23, 2023
Endorsement
Papageorgiou
1This matter was sent to a case conference as a result of the new practice direction.
2The defendants seek to schedule a short motion to strike out the Claim in its entirety or at least parts.
3Koehnen J.’s endorsement in Miller v. Ledra et al, 2023 ONSC 4656 explains that case conference judges are empowered to make orders pursuant to r. 50.13 in respect of procedural orders and also give interlocutory relief. He also sets out a persuasive summary of the need to deal with matters in a more expeditious manner. One way of moving matters along is to resolve some issues that would otherwise proceed to a motion at case conferences. The current backlog means that short motion dates are not available until December 2024.
4In Miller v. Ledra, Koehnen J. made an order for production of documents after considering short summaries of the parties’ positions and also after taking into account that there would be no prejudice to the party ordered to produce such documents.
5The motion the defendants seek to bring here is not a simple procedural motion. I have the defendants’ case conference memo, notice of motion and the pleadings, but I do not have before me the law related to the causes of action pleaded which include breach of contract, inducing breach of contract, conspiracy and unlawful interference with contractual relations. All of these causes of action are pleaded in the context of a contest between developers with respect to the purchase of a particular lot, as part of each of their intended purchases of more lots on the same street, for the purposes of a large scale development.
6I am unable to make an order in respect of the notice of motion sought to be brought for all these reasons, and including the fact that what the moving party seeks is a complete dismissal of the action. It would be unfair to consider ordering this kind of significant and substantive relief at a case conference, particularly without the benefit of a factum or case law. In my view, this is not the intention behind r. 50.13. Making significant orders at case conferences like the one sought here would not increase access to justice or assist with the backlog. It would likely only lead to appeals which will further clog the system.
7Nevertheless, the case conference was useful.
8I reviewed the matter with the parties in terms of what I see as the strengths and weaknesses of each of their positions. I discussed the delay in the progress of this matter if the motion to strike is scheduled, the possibility that leave to amend would be granted, as well as the possibility that the defendant might only succeed partially with respect to some causes of action.
9I am not prejudging this matter as I have not had the benefit of the case law, factums or argument. I am merely pointing out that it is a rare case where a party achieves a home run on a motion to strike.
10The defendants should consider whether the costs inherent in bringing the motion justify the risks. As well, the plaintiff should consider whether there are amendments that would satisfy the concerns raised by the defendants or whether it is prepared to let some of the defendants out of the proceeding on consent.
11I advised the parties that another option would be to schedule a summary trial which could be scheduled within a year and half. It is my view that this matter could be adjudicated in such a manner.
12This may be the more efficient and least expensive method of proceeding for the parties.
13I am adjourning this case conference for the parties to November 23, 2023 at 10:00 am before me so that the parties can seek instructions from their clients after hearing my views.
Papageorgiou J.
Released: October 30, 2023