Court File and Parties

COURT FILE NO.: VB-18-00000197-0000 DATE: 2023/01/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FIELD FARMS MARKETING LTD., Plaintiff AND: KALMBACH FEEDS, INC. and SURESOURCE COMMODITIES, LLC., Defendants

BEFORE: Justice I.F. Leach

COUNSEL: M. Khami, for the Plaintiff No one appearing for the Defendant Kalmbach Feeds, Inc. J. Hawn, for the Defendant SureSource Commodities, LLC

HEARD: January 27, 2023

ENDORSEMENT

[1] This matter was scheduled for a four-hour special appointment hearing in Sarnia today. The focus of the scheduled hearing was a motion brought by the defendant SureSource Committees, LLC.

[2] That extended court time was reserved as long ago as July 27, 2022, when the court was presented with a Certificate of Readiness of Special Appointment, signed by each senior lawyer representing the three parties to this litigation. In that document, the parties promised that the requested hearing would be ready to proceed today, pursuant to a presented timetable for completion of the remaining preparatory steps that were required. Those preparations included completion of all contemplated cross-examinations by December 16, 2022.

[3] The parties nevertheless failed to adhere to that timetable, and the matter was not ready for hearing today.

[4] From the perspective of the Sarnia trial co-ordination office, it was not until three days ago, when counsel indicated by email, (in response to an inquiry from the court noting that no material for the scheduled hearing had been uploaded to Caselines), that the court received any indication that the hearing time allotted to this matter would not be required. That email attributed the need for an adjournment of the motion owing to a failure of the parties to “schedule cross-examinations earlier in the month”; i.e., January of 2023. Again, the Certificate of Readiness filed by the parties indicated that those cross-examinations would be completed by December 16, 2022.

[5] From the perspective of the parties, (and the focus in that regard apparently is on the moving defendant and the opposing plaintiff, as the defendant Kalmbach Feeds Inc. no longer seems to be taking a position or participating in relation to the relevant motion), counsel are said to have “reached out” to the Sarnia trial co-ordination office by email and telephone in November of 2022 to indicate that compliance with the set timetable and use of today’s hearing time would no longer be possible. In particular, counsel appearing this morning to speak to the matter indicated that they sent an email noting the scheduling difficulties, and then followed up by telephone, at which point counsel were informed that they would be required to attend today to speak to the matter.

[6] I have no doubt that counsel were advised that the matter would have to be spoken to in court before the scheduled special appointment hearing was adjourned. Given the premium placed on use of scarce judicial resources in the Southwest Region, it is regional policy to require such an attendance to ensure that special appointment hearing time is not wasted when that can and should be avoided.

[7] However, as I indicated to the counsel appearing this morning on behalf of their principals, what then should have happened was the taking of further steps, by counsel, to have the matter formally brought forward and spoken to in court long before today. Today’s hearing time then could have been repurposed and used for the hearing of other matters.

[8] In the result, the motion scheduled for today was simply not ready to be argued. Moreover, counsel indicated that the matter is unlikely to be ready for hearing for several months; e.g., because counsel and/or the parties are engaged in intervening mediation and arbitration.

[9] Today’s hearing time accordingly was wasted, in circumstances where that could have been avoided.

[10] The failure to adhere to a Certificate of Readiness for Special Appointment timetable, and the assurance of readiness given to the court, must have consequences.

[11] In this case, I thought it appropriate to deny the parties any opportunity to schedule a further hearing date for the motion until such time as they return to court with an indication that the matter is ready for hearing; i.e., as opposed to simply indicating that the matter will be ready at some time in the future pursuant to a revised timetable.

[12] The motion scheduled for hearing today accordingly was adjourned to March 9, 2023, to be spoken to.

[13] On that date, if counsel are able to indicate as officers of the court that all steps to prepare the motion for hearing have been completed, the motion will be assigned a new special appointment hearing date.

[14] If counsel are not able to provide that indication, the motion will be adjourned to another “speak to” date, and that process will be repeated as necessary until the motion has been readied for hearing.

“Justice I.F. Leach”

Justice I.F. Leach

Date: January 27, 2023