Court File and Parties
COURT FILE NOS.: CV-20-1175 and CV-20-1174 DATE: 20241115 SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-20-1175 RE: Gaurav Tewari, Plaintiff AND: Thomas D. McIntyre, Marcus Dukes and Desiccare Inc., Defendants
COURT FILE NO.: CV-20-1174 AND RE: Gaurav Tewari, Plaintiff AND: Scott Eilert, Curtis Cundith, Cargill Meat Solutions Corporation, Cargill Meat Solutions Distribution, Cargill Ltd. and Cargill
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Dr. Gaurav Tewari, Self-Represented Plaintiff in both actions Andrew Sahai, Counsel for the Defendants (CV-20-1175), Thomas D. McIntyre, Marcus Dukes and Desiccare Inc. Andrew McIntosh, Counsel for the Defendants (CV-20-1174), Scott Eilert, Curtis Cundith, Cargill Meat Solutions Corporation, Cargill Meat Solutions Distribution, Cargill Ltd. and Cargill
CASE CONFERENCE HELD: November 13, 2024
Endorsement
[1] This case conference relates to two separate proceedings in which Gaurav Tewari is the Plaintiff. For ease of reference, I will refer to the first as the “Desiccare action” and the second as the “Cargill action”.
[2] While there are two separate actions, the Plaintiff in both actions, Mr. Tewari, wants to examine two of the defendants in the Desiccare action - Thomas D. McIntyre and Marcus Dukes – with respect to a motion in the Cargill action.
[3] As a result, these two actions have been case conferenced together.
[4] The first case conference was nearly 3 years ago on January 15, 2022, where I issued the following direction regarding several motions:
The Desiccare jurisdiction motion should proceed first. As indicated, the Desiccare defendants have agreed that the plaintiff may cross-examine the defendants McIntyre and Dukes in relation to the Desiccare action. All cross-examinations are to proceed by Zoom. If the plaintiff believes that he requires specific documents or must examine non-parties in support of his position on the Desiccare jurisdiction motion he may bring a cross-motion returnable the same day as the Desiccare jurisdiction motion. It will be up to the judge who hears that motion to decide whether he or she has sufficient material to decide the jurisdiction motion, or whether the plaintiff should be provided the documents sought or be permitted to examine the non-parties before the jurisdiction motion is heard: Schreiber v. Mulroney, at para. 11. In my view, the judge hearing the Desiccare jurisdiction motion will be in the best position to determine whether the documents/witnesses requested by the plaintiff are actually relevant and necessary to the determination of the preliminary jurisdictional issue.
Following the Court’s decision on the Desiccare jurisdiction motion, the plaintiff may bring his “summons” motion to examine non-parties, including McIntyre and Dukes, in relation to the Cargill action. Perhaps with the benefit of the Court’s decision in the Desiccare jurisdiction motion the parties may be able to resolve this issue without the need for a motion. Moreover, the Court’s decision in the Desiccare jurisdiction motion will likely settle McIntyre and Dukes’ concern about voluntarily attorning to the jurisdiction, whichever way the decision goes.
Finally, once the Court releases its decision on the plaintiff’s summons motion, Cargill’s jurisdiction motion should be scheduled and heard.
[5] The Desiccare jurisdiction motion (Step 1 above) proceeded before Dunphy J. on October 31, 2022. In oral reasons, Dunphy J. dismissed the Plaintiff’s action for want of jurisdiction in Ontario. The Plaintiff’s cross motions to examine non-parties were dismissed on the same basis. Partial indemnity costs of $119,724.56 were ordered in favour of the Defendants and, in part on a substantial indemnity basis, costs of $52,401 in favour of Matthew Gibney, a non‑party who was the focus of the Plaintiff’s motion to examine.
[6] On September 22, 2023, the Court of Appeal dismissed the Plaintiff’s appeal, and ordered costs in favour of the Respondents of $90,000 and $32,000 to Mr. Gibney: Tewari v. McIntyre, 2023 ONCA 628.
[7] Leave to appeal was dismissed with costs by the Supreme Court of Canada on May 9, 2024: Gaurav Tewari v. Ted McIntyre, et al..
[8] None of these costs awards have been paid.
[9] I held another case conference on December 19, 2022, but this was before the Court of Appeal had heard the appeal from Dunphy J.’s decision, so Steps 2 and 3 of my January 15, 2022 direction were kept on hold while the Desiccare jurisdiction motion wound its way through the appellate process.
[10] As indicated in Step 2 of my January 15, 2022 direction, I had hoped that the Court’s decision in the Desiccare jurisdiction motion would resolve McIntyre and Dukes’ concerns about voluntarily attorning to Ontario’s jurisdiction.
[11] This was, unfortunately, not to be. On December 22, 2022 – just 3 days after the December 19, 2022 case conference – Mr. Tewari commenced another action against eleven defendants, including Desiccare Inc., Ted McIntyre and Marcus Dukes, as well as Cargill Limited and Matthew Gibney (Court file #CV-22-4015). That Statement of Claim is not the subject of this case management Endorsement, but it means that McIntyre and Dukes’ concerns about voluntarily attorning to Ontario’s jurisdiction remain extant. Most importantly, Dr. Tewari continues to take the position that if McIntyre and Dukes oppose his motion to examine them in the Cargill action, or bring a motion for security for costs under Rule 56.01(c), they have attorned to the jurisdiction and can no longer dispute Ontario’s jurisdiction in his latest case against them. Whether Mr. Tewari’s position is correct is a complex issue that cannot be addressed at a case conference.
[12] While we are now ready to proceed with Steps 2 and 3, an outstanding issue is whether the two steps will proceed on the same day or separately. As noted on December 19, 2022, Dr. Tewari asks that Steps 2 and 3 remain separate, so that he will get a decision on his summons motion before the court hears Cargill’s jurisdiction motion.
[13] Cargill, however, takes the position that Steps 2 and 3 should be combined so that they are heard on the same day before one judge. This will promote judicial economy. Moreover, the Cargill jurisdiction motion has been outstanding for nearly four years, and they want to avoid the delay that two motion dates will entail.
[14] In my December 19, 2022 case conference direction I stated, at para. 11, that “we will revisit this issue when we return for another case conference following the release of the Court of Appeal’s decision in the Desiccare jurisdiction motion. At that point we will be in a better position to assess the most efficient and fair way of proceeding. Whether there are outstanding costs orders will be taken into consideration”.
[15] In my view, given the passage of time and the outstanding costs orders against the Plaintiff, these two motions should be heard at the same time by one judge. That will be the most efficient use of judicial resources. It is unfair to the Defendants to permit the Plaintiff to bring multiple motions in circumstances in which he has not paid previous costs orders.
[16] I am also mindful of Lax J’s decision in Schreiber, where she stated, at para. 11: “I am of the view that to order an examination of Mr. Mulroney before jurisdiction is decided would be putting the cart before the horse. It would presume the very jurisdiction that is in issue. I would refuse the order on this basis…”
[17] In making this Order, I understand that the judge hearing the two motions may conclude that the Plaintiff should be permitted to examine non-parties, including McIntyre and Dukes, before he or she decides the jurisdictional issue. The judge hearing the two motions together will have heard both the summons motion and the jurisdiction motion, and will be best placed to make that determination.
[18] Mr. Tewari reminds me that, in one of his other actions (Tewari v. Hillyer, CV-22-374), I permitted him to bring his motion to cross-examine two of the parties (Hillyer and Helin) prior to the jurisdiction motion. This case is different. Firstly, Hillyer and Helin were parties to that action. McIntyre and Dukes are not parties to the Cargill action. Second, Mr. Tewari’s motion to examine Hillyer and Helin was dismissed: Tewari v. Hillyer, 2024 ONCA 705, at para. 2.
[19] In summary, I concluded that Steps 2 and 3 should proceed together, with the summons motion and the jurisdiction motion being heard by the same judge. The judge hearing the motions will give directions with respect to the order of the motions. The parties will have to schedule a long motion – I estimate ½ day – for the motions to be heard.
[20] Long motions are scheduled by the Triage judge. An appointment before the Triage judge can be scheduled through Calendly at:
Calendly - Central East Civil Long Motions & Triage Court
Justice R.E. Charney Date: November 15, 2024