SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-19-00620243-0000
DATE: 2023-10-11
RE: CYMBALSKI v. AMAZON.COM INC. et al
BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN
HEARD: October 11, 2023 [by videoconference]
COUNSEL: M. Glynn for moving party/defendant, Amazon.com Inc.
A. Hussain for the responding plaintiff.
E N D O R S E M E N T
[1] The defendant, Amazon.com Inc., brings this motion seeking security for costs of the action from the plaintiff. For the reasons that follow, the motion is adjourned.
[2] As security for costs motions go, this one is relatively complex. The defendant argues that the plaintiff’s claims are frivolous and vexatious and relies extensively on the evidence obtained on oral and documentary discovery to make this point as well as documents and pleadings filed in related proceedings. The plaintiff’s ability to pay costs also appears to be disputed as is the quantum of security sought. The defendant’s motion record is over 1,000 pages. Collectively the parties have uploaded over 1,700 pages to Case Lines for this motion. There are three factums filed referencing over 30 cases in total. Neither party has uploaded a compendium. This motion was booked by the defendant and confirmed by the parties for a 60-minute hearing.
[3] This motion is offside the relevant Practice Direction and Notice to Profession in a number of respects. Previous province-wide Notices to the Profession have now been consolidated in the Consolidated Civil Provincial Practice Direction, effective June 15, 2023, which includes the following:
D. Materials Relied Upon Must Be Referenced during Hearing
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.
E. Parties’ Responsibility to Provide Accurate Estimates of 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.
This consideration should extend to:
o the number of issues which can properly be dealt with in oral argument, and
o the number of authorities actually required in order to establish the legal propositions relied upon.
- 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 cost consequences.
F. Compendium Required
In accordance with rule 4.05.3(3) of the Rules of Civil Procedure, 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.).
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.
G. Factums and Books of Authorities
The factum should only include cases that counsel or the party intends to refer to in the oral argument.
Each party’s factum shall hyperlink authorities to a publicly available, free website 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.
Where hyperlinks to all authorities are provided in the factum, it will not be necessary to file a book of authorities.[emphasis added]
(https://www.ontariocourts.ca/scj/practice/consolidated-civil-pd/, see also Notice to Profession and Parties – Toronto Region - C.4 Material Filing Directions for Motions and Applications before Judges and Associate Judges: https://www.ontariocourts.ca/scj/practice/regional-practice-directions/toronto-notice-2023/)
[4] Regional Senior Justice Edwards recently commented on the importance of these provisions in the predecessor provincial Notice to the Profession in Lepp v. The Regional Municipality of York, 2022 ONSC 6978:
5 As it relates to Civil matters, the Notice (amongst other things) provides a roadmap to all litigants and the Bar as to what is required when a matter comes before the court. The Notice is not a suggestion of what should be filed. Rather, the Notice sets forth the minimum expectations of the Court in terms of what is to be filed for a hearing.
6 Specifically, as it relates to the motion before this court, the Notice makes clear that each party “must” upload to Caselines a compendium containing “key materials that will be referred to in oral argument”.
[5] The importance of compendiums on a complex contested motion cannot be over-stated. They are essential not only to the efficient conduct of the motion hearing but also to the efficient review of materials by the judicial officer both in the preparation before the hearing and in the writing of any reserved decision that follows. Litigants cannot and should not expect a judge or associate judge to review the entire record on the motion for these purposes, particularly where that record exceeds 1,500 pages as in this case.
[6] The failure of both parties to upload a compendium, on its own, is grounds for an adjournment. However, even if the parties had uploaded compendiums, I would still have adjourned this motion on the basis that the time for the hearing of the motion was significantly under-estimated. As the Practice Direction makes clear, all evidence and legal authority that a party intends to rely on must be brought to the attention of the judicial officer during the motion hearing. In my view, oral submissions referencing and reviewing all of the evidence and case law that is currently cited in the parties’ factums on this motion would require a hearing of at least two, if not three, hours in length. I note that I have assumed that counsel intended to refer to all of the cases in their factums in oral argument. Any case that counsel did not intend to refer to in oral argument should not have been in the factum in the first place - see clause 30 of the Practice Direction, above.
[7] Finally, I note the plaintiff (but not the defendant) further failed to comply with the Practice Direction by filing a factum that was not hyperlinked to electronic versions of the cases and instead filed a brief of authorities that was not properly tabbed with digital bookmarks or hyperlinks. While this would not on its own have resulted in adjournment, the plaintiff is directed to revise its factum and authorities accordingly on the return of the motion. If all of the plaintiff’s cases are available on “free” websites, no brief of authorities should be required.
[8] The defendant’s motion for security for costs is adjourned sine die, to be brought back on for a hearing of not less than two hours, booked through Calendly and the motions office in the normal course. The parties are encouraged to confer and consider whether this motion should be booked as a long motion.
[9] The evidentiary record on the motion shall remain the same. No further evidence shall be filed on the motion. The parties are free to amend their factums and should agree on a timetable for the exchange of such amended factums. Each party shall upload a compendium to Case Lines in advance of the new motion date in accordance with the Practice Direction and the Rules. The parties are reminded that all materials for the motion, both current and amended, must be uploaded to the new Case Lines bundle created for the new motion date when that becomes available.
[10] Given that the parties bear relatively equal responsibility for this adjournment, there shall be no costs awarded as a result of the adjournment. Costs of today’s attendance, if any, are reserved to the Associate Judge at the return of the motion.
[11] I am not seized of this motion.
D. Michael Brown, Associate Judge
DATE: October 11, 2023