Court File and Parties

COURT FILE NO.: CV-23-697907 DATE: 20240212 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sheikh et al Responding Plaintiffs

AND:

Ali et al Moving Defendants

BEFORE: D. Michael Brown, Associate Judge

COUNSEL: P. Dollack, for the Responding Plaintiffs N. Canizares, For the Moving Defendants

HEARD: February 12, 2024

Endorsement

[1] This is a motion by the defendants to strike the claim of the corporate plaintiff, Lake View Town Development Inc., on the basis that the company is incorrectly identified (the registered name of the corporation is Lakeview Town Developments Inc.) and on the basis that the company did not properly authorize the commencement of these proceedings. The plaintiffs take the position that this motion has been abandoned by reason as a result of the defendants’ failure to properly confirm the motion in accordance with Rule 37.10.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] Counsel for the defendants filed a confirmation of motion form (form 37B) with the court on February 2, 2024. Mr. Canizares advises the court that the confirmation form was prepared and filed by a law student in his office. He admits that the motion confirmation form was never sent to counsel for the plaintiffs. The motion confirmation form filed by the defendants states: “I, Nicolas Canizares, counsel for the moving party … confirm I have discussed with Paul Dollak, opposing counsel … the matter referred to above [the motion]...”. Mr. Canizares now concedes that he had not discussed the motion with Mr. Dollak as stated in the motion confirmation form and had no discussions with Mr. Dollak regarding this matter until Friday February 9, 2024.

[3] The defendants also failed to serve or file an amended notice of motion and motion record for this motion in accordance with the previous direction of this court. The defendants’ motion to strike was the subject of a case conference before Associate Justice Graham on May 25, 2023, following service of the motion record for this motion on May 2, 2023. Mr. Canizares attended on behalf of the defendants. At that case conference, the parties agreed that the plaintiffs be granted leave to amend the statement of claim to correct the name of the corporate plaintiff. In his endorsement on the case conference, Associate Justice Graham noted that once the claim was amended “there would no longer be any basis to strike the claim of the Lakeview corporate plaintiff.”

[4] Associate Justice Graham granted the plaintiff leave to amend the claim without prejudice to the defendants proceeding with a motion to stay the action on the basis that the corporation does not have authority to commence the action. Associate Justice Graham directed that “The defendants will amend their motion materials for the motion currently returnable on February 12, 2024 to request a stay of the action of Lakeview Town Developments Inc. on the basis of a lack of authority to bring the action.”

[5] The defendants have not amended their motion materials. The only document that the defendants have uploaded to Case Lines for the hearing today is the same May 2, 2023 motion record for the motion to strike that was the subject of the case conference before Associate Justice Graham. It was clear from Mr. Canizares’ submissions that he has forgotten about the case conference before Associate Justice Graham and the resulting endorsement/order, although he does not dispute that it occurred. He also concedes that the defendants failed to amend their motion materials in accordance with Associate Justice Graham’s direction and now asks for a short adjournment of the motion to allow the defendants to prepare and serve amended motion materials.

[6] Subrule 37.10.1(1) provides:

37.10.1 (1) A party who makes a motion on notice to another party shall confer or attempt to confer with the other party and shall, not later than 2 p.m. five days before the hearing date,

(a) give the registrar a confirmation of motion (Form 37B) by,

(i) sending it by e-mail to the court office, or

(ii) leaving it at the court office; and

(b) send a copy of the confirmation of motion to the other party by e-mail.

[7] The confirmation process in Rule 37.10.1(1) exists primarily for the court’s benefit. It requires opposing parties to confer with each other shortly before the motion is finally confirmed in order to provide the court with up-to-date information in form 37B regarding:

a. whether the motion will be proceeding; b. whether it will be opposed and if so, on what issues; c. how much time is estimated for the hearing of the motion; and d. what materials the parties will be relying on.

[8] The confirmation process is meant to ensure that only those motions that are actually proceeding are placed on the court’s list for the day, that the appropriate amount of time is made available to hear those motions, and that the judicial officer presiding over the motion knows what issues are to be addressed on the motion and what materials need to be reviewed.

[9] Counsel’s conferring or attempting to confer with one another in advance is essential to the confirmation process. When moving counsel fails to confer with opposing counsel, they are not in a position to provide accurate or up-to-date information to the court. They are, at best, guessing at what the opposing party’s position will be with respect to the matters required to be confirmed in form 37B. Any resulting inaccuracies in the form 37B that is filed are ultimately at the court’s expense, either in the form of unnecessarily booked hearing time, or in time wasted by the judicial officer in reviewing materials and preparing for a motion or some part thereof that is no longer being pursued.

[10] In this case, Mr. Canizares did not confer or even attempt to confer with Mr. Dollak in advance of confirming the motion in accordance with subrule 37.10.1(1). To make matters worse, Mr. Canizares filed (or allowed a law student under his supervision to file) a Rule 37B motion confirmation form that falsely represented to the court that he had conferred with Mr. Dollak. He then failed to provide a copy of the motion confirmation form contrary to subrule 37.10.1(1).

[11] Subrule 37.10(1)(4) provides that if no confirmation is given under subrule (1), the motion shall not be heard and is deemed to have been abandoned, unless the court orders otherwise. The defendants have not given confirmation in compliance with subrule (1). The defendants’ motion is therefore deemed abandoned unless I order otherwise. The defendants request that I order otherwise by granting them an adjournment of the motion.

[12] Given the defendants’ failure to comply with the direction of Associate Justice Graham and the false representation to the court in the filed Form 37B, I am not inclined to grant the defendants relief from the deeming provision in subrule 37.10(1)(4). I therefore find that the defendants’ motion is deemed to be abandoned under subrule 37.10(1)(4). Such abandonment is without prejudice to the defendants’ ability to bring a new motion seeking the relief as contemplated in the endorsement of Associate Justice Graham.

[13] The plaintiffs seek costs of the abandoned motion. Subrule 37.09(3) provides that where a motion is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion “unless the court orders otherwise.” I am not inclined to depart from the plaintiffs’ default entitlement to costs on the motion for the same reasons that I was not inclined to relieve the defendants from the deemed abandonment under Rule 37.10.1. The plaintiffs shall have their costs of the abandoned motion.

[14] The plaintiffs seek costs on the partial indemnity scale in the amount of $4,113.20, based on a costs outline filed. The defendants dispute neither the scale nor the quantum of costs sought by the plaintiffs, but ask that they have 30 days to pay. I therefore order that the defendants shall pay to the plaintiffs their costs of this motion, fixed at $4,113.20, inclusive of HST, and payable within 30 days of today. This order is effective immediately without further formality.

D. Michael Brown, Associate Judge Date: February 12, 2024