Cherry v. Novex Insurance Company, 2025 ONSC 2188
Court File Numbers
CV-12-464327
CV-13-489544
Court and Parties
Superior Court of Justice – Ontario
Plaintiff: Alma Cherry
Defendant: Novex Insurance Company
Third Parties: Nubury Properties Limited, Care Pest Management Incorporated, Ecosmart Technologies Ltd., and Biosweep Canada Corporation
In related actions:
- Alma Cherry, Plaintiff
- Nubury Properties Limited, Care Pest Management Incorporated, Ecosmart Technologies Ltd., and Biosweep Canada Corporation, Defendants
- Biosweep Canada Corporation, Nubury Properties Limited, Care Pest Management Incorporated and Ecosmart Technologies Ltd., Third Parties
Before: E.M. Morgan
Counsel
- Alma Cherry, on her own behalf
- Christian Farahat, for Novex Insurance Company
- Maya Kanani, for Nubury Properties Limited
- Meheran Wancho, for Care Pest Management Inc.
- Damian DiBiase, for Biosweep Canada Corporation
- Navid Ghahraei, for EcoSmart Technologies Ltd.
Heard: April 8, 2025
Amended Endorsement
[1] The Plaintiff has brought a motion to dismiss the third-party claims for delay. It was scheduled to be heard last October, but she sought an adjournment. I adjourned the motion to today and booked a full day for it, with an endorsement that said it is peremptory on the Plaintiff. This morning, however, she sought an adjournment yet again.
[2] In speaking to the adjournment, the Plaintiff had a litany of complaints about the opposing parties and opposing counsel. Among other things, she accused both counsel and the deponent for one of the Defendants of yelling at her during discoveries and being generally abusive throughout these proceedings. She requested my authorization for the reporter who was present at the discovery to release any audio recordings of the examination.
[3] I told the Plaintiff that I have seen no sign of any such behaviour by Defendants’ counsel. In fact, all counsel in this case have been entirely professional, polite, and patient with the pace of the proceedings and with the Plaintiff’s sometimes lengthy and repetitive submissions. There has certainly been no sign of abusive language or conduct.
[4] That said, if the Plaintiff wishes to obtain an audio recording from the discovery transcriptionist, and if my authorization is required in order for her to do so, she can consider it authorized. I see no reason for denying her a copy of an audio recording of the examinations for discovery. My only concern is that she must provide all counsel with a copy of any recording before submitting it into the court record or sending or playing it for anyone else. In that way, Defendants’ counsel will have a chance to determine whether any off-the-record or privileged conversations were included that they might want to request be edited out.
[5] The Plaintiff’s primary ground for the adjournment is that she wants to compel the deponents who she examined for discovery several months ago to answer refused questions. She also seeks unredacted copies of certain emails produced by the Defendants. I explained to her that both of those requests would have to be done by way of motion, and that I cannot just take her word for it that there were improper refusals or productions without a motion record with transcripts and copies of the emails in question. I also told her that she should be in touch with the Associate Justices court to book a motion date, since the matters that she wishes to address are squarely within the Associate Justices’ jurisdiction and my own calendar is completely full for the next year.
[6] Counsel for Novex Insurance Co. indicated in his response that he opposes the adjournment, pointing out that today’s appearance was already peremptory on the Plaintiff. Counsel for EcoSmart Technologies Ltd. and counsel for Nubury Properties Ltd. both indicated in their response that they had booked a hearing date of June 23, 2025 for motions of their own to dismiss for delay, and that they were still deciding how and whether to proceed on that date.
[7] I told Defendants’ counsel that they are to let my assistant know by Thursday, April 17, 2025 whether or not they will be pursuing a motion on June 23rd, and that if they are intent on proceeding on that date they must have served a Notice of Motion by April 17th. I also told the Plaintiff that if the Defendants decide to proceed on June 23rd, she will have to be in a position to respond to that motion. She then asked whether she could bring her own motion to strike the defense of Ecosmart Technologies Ltd., and I advised her that she can bring that as a cross-motion of her own to also be heard on June 23rd, but that, like the Defendants, she must serve a Notice of Motion and advise my assistant that she has done so by April 17th.
[8] I want to make it clear that the adjournment of today’s motion does not impact in any way on the Defendants’ June 23, 2025 proposed motion. If they proceed on that date, I will consider their motion in full on its merits. It will not be adjourned just because the Plaintiff still has today’s motion pending and returnable down the road.
[9] The Plaintiff’s motion is adjourned to April 13, 2026. I will remain seized.
Morgan J.
Date: April 8, 2025