Superior Court of Justice – Ontario

Court File No.: CV-21-00662198-0000
Date: 2025-06-24

RE: Park Lawn Corporation v. Kahu Capital Partners Ltd. et al

Before: Associate Justice Rappos

Counsel:
Andrew Sahai, for Plaintiff/Defendant to Counterclaim Park Lawn Corporation and Defendant to Counterclaim Bradley Green
Sophie Baker, for Defendants Kahu Capital Partners Ltd., Alexander Zivic and Benedict Cheng
Justin Safayeni, for Third Party Andrew Clark

Heard: June 24, 2025 (via teleconference)

Endorsement

[1] The Plaintiff requested a 15-minute case conference in this action to settle the terms of a timetable and discovery agreement. The request was filed on May 15, 2025. I was assigned to preside over the case conference pursuant to a direction dated May 20, 2025.

[2] At the case conference, the parties confirmed that they have agreed to a discovery agreement, and that they do not require it to be memorialized in an endorsement.

[3] However, the Plaintiff informed the Court that there was one issue outstanding, which is whether it should be permitted to examine the third party Andrew Clark in the main action even though he has only defended the third party claim.

[4] The Plaintiff filed a case conference brief yesterday, which contained 6 pages of written submissions on the issue. Mr. Clark filed a responding brief yesterday, with 5 pages of written submissions.

[5] Mr. Clark is the former CEO and chairman of the board of the directors for the Plaintiff. The Plaintiff commenced an action against Mr. Clark in 2020, which the parties settled. The Plaintiff says that the minutes of settlement agreed to by the parties does not prohibit it from examining Mr. Clark in this proceeding.

[6] The Plaintiff argues that it is entitled to examine Mr. Clark as a party “adverse in interest” under subrule 31.03(1) of the Rules of Civil Procedure. They rely on Air Canada v. Meridien Credit Corp Canada Ltd., a 1985 Ontario District Court decision, in support of their position. In the alternative, the Plaintiff argues that it would certainly be granted leave to examine Mr. Clark under subrule 31.10(1) of the Rules of Civil Procedure.

[7] Mr. Clark’s position is that courts have declined to follow the Air Canada decision and have dismissed similar motions brought under subrule 31.03(1) of the Rules by parties to a main action seeking to discover third parties.

[8] Mr. Clark also argues that the issue of whether leave would be granted under subrule 31.10 cannot be properly assessed at this time, since the other parties have not been examined. Mr. Clark says that a case conference is not the appropriate time for the Plaintiff to be making requests for an order subjecting Mr. Clark to examination by the Plaintiff.

[9] Subrule 50.13(6) of the Rules sets out the powers of the court at a case conference. As an associate judge, I can make a procedural order, convene a pre-trial conference, and give directions. A judge has the additional powers to make an order for interlocutory relief or convene a hearing.

[10] As the issue of my jurisdiction at this case conference was first raised by me during the hearing, the parties did not have an opportunity to prepare written submissions on this issue.

[11] The terms “procedural order” and “interlocutory relief” are not defined in the Rules. I am aware of the decision of Justice Faieta in Horsefield v. Economical Mutual Insurance Company, 2017 ONSC 2080, where His Honour held that the issue of whether individuals should be compelled to be examined under rule 39.03 of the Rules was a matter that could be dealt with as a “procedural order” at a case conference before him.

[12] I believe that case is distinguishable for the following reasons.

[13] Firstly, the decision notes that a summary judgment motion was scheduled to be heard in four months’ time, and the parties had agreed to a timetable that set out the hearing date and when examinations were to be completed. The timetable ordered by the CPC judge provided that a case conference be set up to deal with the rule 39.03 issue. Declining to determine the issue at the case conference would require a motion to be scheduled that would likely mean that the summary judgment motion would be vacated.[1] In deciding to deal with the issue at the case conference, Justice Faieta relied on subrules 1.04(1) and (1.1) of the Rules.[2]

[14] The facts of this case are entirely different than those before Justice Faieta. There is no pending hearing and there was no direction by a judge that this issue would be dealt with at a case conference.

[15] Secondly, in that case, the parties had been given one month’s notice that the rule 39.03 issue would be addressed at the case conference. The case conference was heard over 45 minutes. The plaintiff submitted 29 pages of written material, including three pages of submissions and case law. The defendant submitted 95 pages of written material, including six pages of submissions, an affidavit and case law.

[16] In the case before me, the case conference was only scheduled for 15 minutes, and was not requested for the purpose of determining whether the Plaintiff could examine Mr. Clark. It appears that the Plaintiff first raised the issue in an e-mail sent by counsel on June 17, 2025. Additionally, the Plaintiff filed its brief approximately 24 hours before the start of the case conference. Mr. Clark served a responding brief less than five hours after it received the Plaintiff’s brief. This situation is quite different than that which was before Justice Faieta.

[17] Thirdly, while it is not clear from the face of the decision, it appears that the matter before Justice Faieta may have proceeded in open court. In this case, the case conference proceeded via telephone, which is the practice in Toronto for case conferences before an associate judge.

[18] The materials were e-mailed to the Court for review. It is unlikely that the materials were filed with the Court through the JSO portal. There was no bundle created in Case Centre for the case conference, which again is typical practice for case conferences before an associate judge. As well, parties are not required to be gowned for a case conference, trial scheduling court, trial management conferences or pre-trials. This reflects the fact that the relief sought at those types of attendances are of a different nature than that which is sought at a motion, where parties must be gowned.

[19] In my view, the manner in which case conferences are heard by associate judges supports the conclusion that they are not intended to deal with substantive matters, as to hold otherwise would violate the open court principle. Court proceedings are to be open and public. With case conferences before an associate judge, the public does not have the ability to attend, and cannot access the materials that are provided to the associate judge.

[20] Lastly, in his decision, Justice Faieta did not consider the difference between “interlocutory relief”, which he was entitled to grant as a superior court judge, and a “procedural order”, which is the only order an associate judge is permitted to make at a case conference.

[21] The principles of statutory interpretation require that words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute or regulation, the object of the statute or regulation, and the intention of the legislature.

[22] An interlocutory order has been held to be an order that determines an issue collateral to the real matter in dispute in the litigation, and not the real matter in dispute itself. An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds.[3]

[23] In my view, taking into account the differences in the scope of jurisdiction and matters that can be heard by an associate judge versus a judge under the Rules, the plain and ordinary meaning of a “procedural order” is that it is an order that does not require a legal issue to be determined and is strictly procedural in nature, such as an order establishing a timetable or requiring the parties to comply with specific provisions of the Rules.

[24] A decision on whether a litigant is entitled to examine a party under the Rules, which will require the Court to consider and apply relevant case law and consider factual issues in connection with any request under subrule 31.10, in my view goes beyond procedural relief and constitutes interlocutory relief. A decision of a judge regarding subrule 31.10 is an interlocutory order that requires leave to appeal of the Divisional Court.[4]

[25] As a result, I find that, as an associate judge, I do not have jurisdiction at a case conference to determine whether the Plaintiff is entitled to examine Mr. Clark under subrule 31.03(1) or whether leave should be granted under rule 31.10. Accordingly, the Plaintiff’s request for an order compelling the examination of Mr. Clark is denied, and if it wishes to seek such relief, it must bring a motion before an associate judge.

Associate Justice Rappos
Date: June 24, 2025

Notes

[1] Horsefield v. Economical Mutual Insurance Company, 2017 ONSC 2080, paras. 1, 2, and 15-17.

[2] Ibid., at para. 17.

[3] 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, para. 7.

[4] Famous Players Development Corp. v. Central Capital Corp..