2024 ONSC 3438
Court File and Parties
COURT FILE NO.: CV-04-26293 DATE: 2024/06/12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OZ Merchandising, Plaintiff AND Canadian Professional Soccer League Inc. et al, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: Chetan Phull, for the Plaintiff Alastair McNish, for the Defendant, Cary Kaplan Paul Ingrassia, for the Defendant, Ira Greenspoon
HEARD: June 12, 2024
CASE CONFERENCE ENDORSEMENT
Overview
[1] On January 17, 2023, I set a timetable for the hearing of Mr. Kaplan’s motion to dismiss. On February 28, 2023, I had before me, the plaintiff’s motion seeking my recusal and Mr. Kaplan’s motion to dismiss. I dismissed the plaintiff’s motion that I recuse myself from hearing Mr. Kaplan’s motion to dismiss. I also declined to “link” the plaintiff’s proposed motions for default judgment and Mr. Kaplan’s motion as requested by the plaintiff because no motions for default judgment had been filed. The plaintiff then requested an adjournment of the hearing of Mr. Kaplan’s motion. That request was not opposed by Mr. Kaplan, but I ordered the plaintiff to pay Mr. Kaplan’s costs in the amount of $1,000, to be paid within 30 days.
[2] I also ordered a new timetable for the hearing of Mr. Kaplan’s motion to dismiss. The motion was scheduled to be heard by me on April 20, 2023.
[3] On April 20, 2023, without prior notice to Mr. Kaplan, the plaintiff sought an adjournment of the hearing on the basis that the plaintiff had sought leave to appeal to the Divisional Court, together with a request for an extension of time, from my order dismissing the plaintiff’s motion that I recuse myself. I granted the adjournment and ordered that $1,500 in costs be paid by the plaintiff to Mr. Kaplan in respect of the attendance, to be paid within 30 days.
[4] All materials have been filed for Mr. Kaplan’s motion to dismiss. Mr. McNish advised today that in April 2024, counsel for the plaintiff confirmed that he had no instructions to proceed with the motion in Divisional Court. As a result, all that remains is for a date to be set for the hearing.
[5] The plaintiff took the position today that the hearing of Mr. Kaplan’s motion to dismiss should be deferred and that the motion should be heard together with the plaintiff’s motions for default judgment and, depending on the outcome of the plaintiff’s motion in the Court of Appeal in relation to Mr. Greenspoon, Mr. Greenspoon’s motion for summary judgment.
[6] Mr. Greenspoon’s motion to set aside the noting of default against him and to reinstate his statement of defence was granted by order of Kaufman J. dated October 12, 2023. The plaintiff sought leave to appeal to the Divisional Court from Kaufman J.’s order. Mr. Ingrassia advised that the motion for leave to appeal was dismissed by the Divisional Court in May 2024. The plaintiff has moved for leave to appeal to the Court of Appeal from the denial of leave to appeal by the Divisional Court. There are additional materials to be filed in respect of that motion.
[7] Mr. Kaplan has waited long enough for the hearing of his motion to dismiss. Timetables have previously been set. There was a previous hearing date scheduled over a year ago. I restored Mr. Kaplan’s statement of defence at the outset of the jury trial by order dated April 18, 2019. When the plaintiff’s motion for leave to appeal will be determined in the Court of Appeal is unknown, as is the outcome of that motion. Finally, I note that if Mr. Greenspoon’s motion does proceed, Mr. Greenspoon is proposing a motion for summary judgment, which may entail affidavit evidence. That is very different than the motion I permitted Mr. Kaplan because I ordered only that he would be permitted to file written submissions on the law relating to the claims made against him as set out in the statement of claim. In all these circumstances, it would not be fair or in the interests of justice to delay the hearing of Mr. Kaplan’s motion any further.
[8] Nor am I prepared to accede to the plaintiff’s request that I link Mr. Kaplan’s motion to any motions for default judgment by the plaintiff. This is simply a renewal of the request made on February 28, 2023, which I denied. Nothing has changed. No motions for default judgment have been filed.
[9] The hearing of Mr. Kaplan’s motion to dismiss is scheduled before me to be heard on October 4, 2024. Three hours has been scheduled for the hearing of the motion. The motion will be hybrid. Counsel are directed to ensure that their materials are uploaded to CaseLines no later than 30 days before the hearing.
[10] Regarding the scheduling of other matters, and in particular, whether those matters would proceed before me, I advised counsel that I would review the wording of the trial decision in this regard. The last paragraph of the trial decision reads: “I remain seized of this matter for purposes of addressing the claims as against the remaining defendants. There is also an outstanding matter of costs as against certain of the remaining defendants. I have directed counsel for the plaintiff to schedule a case conference through the trial coordinator’s office with respect to these matters.”
[11] Footnote 12, referred to in this paragraph, refers back to footnote 1, which provides:
The face of the trial record reflects that these defendants have been “noted in default.” On the motion regarding the scope of the trial, counsel for OZ Merchandising agreed that the deemed admissions by the defendants noted in default have no application to CSA, OSA, or EODSA. Counsel for OZ Merchandising also agreed on the motion that under Rule 19.05(4), the motion for default judgment in respect of those defendants would have to be heard by the trial judge and not by the jury. Following a contested motion brought by Cary Kaplan, on April 18, 2019, I ordered that the Amended Statement of Defence of the defendants, Canadian Soccer League Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan, and Stan Adamson (dated June 24, 2016 and contained at Tab 14, volume II of the Trial Record), be restored for Mr. Kaplan only, and that Mr. Kaplan shall be permitted to file written submissions on the law relating to the claims made against him, as set out in the statement of claim.
[12] As stated in the trial decision, I remain seized for purposes of addressing the claims as against the “remaining defendants.” This includes not only Mr. Kaplan, but any motions for default judgment brought by the plaintiff. If the plaintiff’s motion for leave to appeal to the Court of Appeal is dismissed, it would also include Mr. Greenspoon’s motion for summary judgment. The plaintiff indicated at the case conference that it anticipated bringing a further motion for recusal at a future date.
[13] The plaintiff also requested that any motions be heard by a jury. Motions are not heard by a jury. Section 108(1) of the Courts of Justice Act sets out the general principle that most actions in the Superior Court of Justice may be “tried” with a jury, while s. 108(2) prohibits jury trials in certain circumstances.
[14] In addition, with respect to Mr. Kaplan, I previously addressed this issue in my endorsement restoring his statement of defence. The claim against Mr. Kaplan is for oppression under s. 248 of the OBCA. Section 248 of the OBCA creates an equitable remedy. However, s. 108(2) of the Courts of Justice Act specifically provides that issues of fact and the assessment of damages in respect of a claim for equitable relief must be tried without a jury. Even if Mr. Kaplan was proceeding with a trial, which he is not, the claims against him could not proceed before a jury.
[15] The costs awards of $1,000 and $1,500 payable by the plaintiff to Mr. Kaplan remain outstanding. Mr. Kaplan requests an order that these amounts be paid forthwith and, failing compliance, that the plaintiff not be permitted to continue its defence of Mr. Kaplan’s motion. The plaintiff argues costs should be “in the cause.” I reject the plaintiff’s position. These are costs that were ordered in February and April 2023. The amounts were ordered to be paid within 30 days. There is no justification for Mr. Kaplan having to wait further for payment. These costs awards are to be paid forthwith. Non-compliance with this order may be raised at the hearing of Mr. Kaplan’s motion.