Court File and Parties

Court File No.: CV-19-00081456-0000 Date: 2024-08-23 Superior Court of Justice - Ontario

Re: McPeake v Barber et al.

Before: Justice K.E. Cullin

Counsel: Yan David Payne, for the Plaintiff Stephen Cavanagh, for the Defendants

Heard: August 21, 2024

Endorsement

[1] This matter appeared before me for a case management conference, pursuant to Rule 50.13.

[2] This matter appears before me following the case management conference on July 4, 2024. At that time, I struck the plaintiff’s affidavit with leave to file a fresh affidavit. The parties were directed to amend their timetable. They appear before me because they have been unable to agree on a timetable or the next steps in preparation for the defendants’ motion.

[3] There were discussions today about the purpose of the pre-motion conference. I confirmed with counsel that I have requested the pre-motion conference to address the following issues, which are not properly addressed before me as the hearing judge:

a. Mr. Payne’s position that this is not an appropriate matter for a summary judgment motion and that it should be pre-emptively struck and/or not permitted to proceed. He submits that this is a procedure that is available in Toronto and that it should be applied in this case.

b. A review of the proposed evidence of the parties and a discussion about what evidence would most assist a judge hearing this summary judgment motion. It is my hope that this will assist the parties to file a record that is focused on the necessary, relevant evidence required to satisfy their burdens on the motion, and to avoid a paper chase.

[4] It was also initially my hope that the pre-motion conference might be a forum for the parties to discuss resolution of either the motion or the action. Currently, I view such prospects to be extremely low and I have therefore advised the parties not to focus their pre-motion conference materials on this issue. This, of course, is not intended to discourage resolution discussions if the parties are receptive to it.

[5] There were also discussions about the timetable and the materials to be exchanged for the motion. The plaintiff intends to present his case through affidavit evidence and the examinations of non-party witnesses pursuant to Rule 39.03. The plaintiff expressed concerns that some non-party witnesses may be uncooperative, which made it difficult to anticipate their evidence.

[6] Having heard from counsel, I am ordering a timetable for the motion. In making this order, I have considered two objections raised by counsel.

[7] First, the defendants objected to the filing of evidence after the pre-motion conference, arguing that this was effectively permitting rejoinder. The plaintiff submitted that, given the purpose of the conference, it was always contemplated that additional evidence could be filed. I agree with the position of the plaintiff.

[8] The purpose of the pre-motion conference is to ensure that this motion is addressed in the most efficient and cost-effective manner possible. The expectation is that the parties will file sufficient evidence to have a productive discussion, but not necessarily all the evidence on which they intend to rely. The parties will therefore be given an opportunity to file additional evidence following the conference and prior to examinations and cross-examinations.

[9] Second, the plaintiff objected to the defendants’ request that they be permitted to file additional evidence after the plaintiff’s examination of the non-party witnesses and before the defendants’ cross-examination of those witnesses. The plaintiff submitted that this should not be permitted or, alternatively, if the defendants are permitted to file additional evidence, they should be permitted to file additional evidence as well. The defendants object to the plaintiff filing additional evidence.

[10] The defendants rely on the decision of Fragomeni J. in Martin v. Kiewit Alarie A Partnership, 2016 ONSC 2517, in which he noted the following at para. 30:

A Rule 39.03 examination is not equivalent to a cross-examination under Rule 39.02. The fact that a Rule 39.03 examination may take the form of a cross-examination does not transform it into a Rule 39.02 cross-examination. Contrary to a Rule 39.02 cross-examination, a Rule 39.03 examination is a way to lead primary evidence. Neither the clear wording or the spirit of the Rules prevent a party from supplying affidavit material to reply to primary evidence, whether it is led by affidavit or a Rule 39.03 examination.

[11] I agree with and adopt this reasoning.

[12] With respect to the plaintiff’s request to file additional materials, the witnesses at issue are witnesses that the plaintiff is proposing to produce. The plaintiff can both examine and re-examine pursuant to Rule 39.03, and their examinations may take the form of a cross-examination. If anything unusual arises, the timetable will contemplate a motion for leave to file additional evidence. In my view, this fully addresses any concerns that they may have about being taken by surprise by evidence given during the examinations.

[13] I therefore Order the following:

a. The pre-motion conference date, currently scheduled for September 27, 2024, shall be vacated. The trial co-ordinator is asked to reschedule it to a date after October 7, 2024.

b. The plaintiff shall serve responding materials by September 13, 2024. This may, but is not required, to include a summary of anticipated evidence for the witnesses that the plaintiff proposes to examine pursuant to Rule 39.03.

c. The defendants shall serve reply materials by October 7, 2024.

d. The plaintiff shall serve any additional responding materials within 30 days of the pre-motion conference.

e. The defendants shall serve any additional reply materials within 14 days of receiving the plaintiff’s additional responding materials.

f. Expert reports shall be served by January 17, 2025. Responding expert reports shall be served within 30 days thereafter.

g. Examinations and cross-examinations shall be conducted by March 28, 2025.

h. The defendants may serve additional reply materials after the plaintiff’s examination of the witnesses summoned by them pursuant to Rule 39.03. The reply materials shall only address evidence arising during the plaintiff’s examination of the Rule 39.03 witnesses. The materials shall be served prior to the defendants’ cross-examinations of the Rule 39.03 witnesses. If the defendants intend to serve any additional reply materials, they shall be served and the witnesses cross-examined by April 28, 2025.

i. If the plaintiff intends to seek leave to serve additional responding materials following the completion of examinations and cross-examinations, they shall serve their notice of motion within 30 days of completing them and shall request a case management conference to discuss next steps.

j. The defendants’ factum shall be served not less than 30 days prior to the hearing of the motion.

k. The plaintiff’s factum shall be served not less than 15 days prior to the hearing of the motion.

l. The defendants’ reply factum shall be served not less than 7 days prior to the hearing of the motion.

m. This timetable may be amended by the parties on consent and in writing or by court order.

n. If the parties require further directions with respect to the timetable or the motion, they may schedule a further case management conference before me by contacting the trial co-ordinator.

Cullin, J. Date: August 23, 2024