Court File and Parties

Court File No.: CV-18-598339
Date: 2025-07-07
Court: Superior Court of Justice - Ontario

Between:
Paolo Boni, Plaintiff
and
Gary Jonas Computing Ltd., Defendant

Before: Associate Justice Todd Robinson

Counsel:

• D. Chitz and M. Crampton, for the plaintiff
• A. Goldenberg and D. Poliwoda, for the defendant
• H. Wafaei, for the non-parties, Lake Capital and JL Albright Ventures

Heard: 2025-06-20 (by teleconference)

Endorsement (Directions on Motion to Compel Compliance with Production Order)

Background

[1] The plaintiff requested this case conference to seek an extension of the set down deadline for this action and for directions on scheduling a motion to compel the defendant to produce additional documents or explain why those documents are not in its possession. The documents are argued to be captured by the prior production order of now-retired Graham A.J.

[2] The parties’ current dispute arises from the defendant’s alleged non-compliance with Graham A.J.’s order from 2022, which was made following the successful motion by the plaintiff for leave to examine the non-parties, Lake Capital and JL Albright Ventures, and to compel a further and better affidavit of documents from the defendant (2022 ONSC 4304). I recently settled the formal order from that motion (2025 ONSC 3295).

[3] The defendant’s position is that the plaintiff’s proposed motion is meritless, but in any event is out of time. The parties agreed to a timetable in fall 2024, which included all remaining steps to setting the action down for trial. That consent timetable is embodied in the order of McAfee A.J. dated September 19, 2024. The consent timetable required that all motions to address refused questions be brought by November 30, 2024, and that any other pre-trial motions be brought by January 31, 2025. The defendant argues that its position on the requested documents has been known to the plaintiff since no later than late October 2024, yet the plaintiff took no steps to bring a motion against the defendant before the deadlines in the timetable order.

The Case Conference and Procedural History

[4] After hearing the parties’ submissions, and as set out in my endorsement following the case conference, I advised counsel that I would be considering the parties’ arguments on whether the plaintiff’s proposed motion should be permitted to proceed and that I would provide a decision with reasons to follow. I also advised that I would not be extending the set down deadline. Rather, if I felt that the plaintiff’s motion should proceed, then I would grant leave for the motion to be brought and argued, despite set down, as required by subrule 48.04(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”).

[5] I have decided that the plaintiff’s proposed motion should not proceed and accordingly deny leave for it to be brought.

[6] Regardless of which of the two court-ordered motion deadlines applies, there is no question that the deadline to bring the plaintiff’s proposed motion has passed. The timetable order of McAfee A.J. fixed deadlines for all motions arising from discoveries and any other pre-trial motions. That order has not been varied.

[7] The plaintiff submits that the nature and extent of the defendant’s non-compliance with Graham A.J.’s order is beyond the scope of this case conference and will require a hearing with a proper evidentiary record. I need not consider that argument. The threshold issue of whether the motion should be permitted to be brought is, in my view, properly addressed by way of case conference. It is not something that requires the time, expense, and judicial resources of a fulsome motion.

[8] Subrule 50.13(6) of the Rules expressly authorizes both judges and associate judges to make a procedural order at a case conference. Whether viewed as varying or extending the deadlines in McAfee A.J.’s timetable order to permit the proposed discovery motion or seeking leave to bring the motion after set down as required by subrule 48.04(1), in my view, the plaintiff is requesting a procedural order.

Authority of the Court at Case Conferences

[9] In the recent decision of Grovum v. Kouznetsov, 2025 ONSC 3899, the Divisional Court discussed the authority of judges and associate judges in case conferences. Specifically, at para. 26, the court held as follows:

In appropriate cases and on notice, judges and associate judges have authority to issue directions, which can include substantive orders, during case conferences to enhance efficiency, accessibility, and fairness in the justice system. This flexibility reduces delays and procedural burdens, tailors procedures to the case’s needs, and prevents unnecessary formalities from hindering timely resolution. Such authority also supports pragmatic case management, upholds proportionality and efficiency, and aligns with Rule 1.04, which mandates that the Rules of Civil Procedure be liberally construed to secure just, most expeditious, and least expensive resolution of civil proceedings on their merits.

[10] In this case, the plaintiff requested this case conference to obtain directions on the proposed motion, including a procedural order to vary McAfee A.J.’s timetable order to further extend the set down deadline. Both parties served and filed case conference briefs setting out their positions. Notably, the defendant’s brief clearly articulates the positions argued before me. They reflect similar submissions made at the prior case conference before me in February 2025, when I was tasked with settling the form of order from Graham A.J.’s motion decision. This is not a situation where the plaintiff had no prior notice of the defendant’s positions. To the contrary, plaintiff’s counsel had evidently considered them and was prepared to address them. They made cogent arguments in direct response to the defendant’s positions during the case conference.

The Role and Limits of Case Conferences

[11] Case conferences serve an important function in our current civil litigation system. There remains a significant civil backlog throughout many regions in Ontario, including Toronto Region. As a result, and borrowing the language from Grovum v. Kouznetsov, the court is in dire need of “pragmatic case management” wherever possible. Although motions have become the norm for addressing most pre-trial disputes, not everything requires a motion. That is expressly contemplated by the breadth of authority available at a case conference as set out in subrule 50.13(6) of the Rules.

[12] However, in saying that, I am not suggesting that motions under our current civil system can or should be dealt with by way of case conference. In many cases, fairness requires that the court decide disputes on a proper evidentiary record that is not available from a case conference brief. The open court principle further militates to certain disputes being addressed in the open, accessible, and public forum of a courtroom, rather than by way of case conference in which only the parties or their lawyers meet with a judge or an associate judge. Resources and time are also a factor. Case conferences before associate judges in Toronto Region are typically scheduled for only fifteen minutes, which makes substantive argument on more complex, disputed issues nearly impossible.

[13] In this case, though, I purposely convened a longer case conference and afforded counsel time to make submissions. The threshold issue of whether the court should permit the plaintiff’s motion to be brought does not itself require the formalities of a motion to be fairly decided. Moreover, in my view, it should be decided in advance of the proposed motion, rather than concurrently with it. Quite apart from considering the potentially unnecessary use of strained judicial resources, both sides would otherwise have to incur the time and expense of joining swords over the substantive dispute around the defendant’s obligations arising from Graham A.J.’s order, whether those obligations were varied by agreement of the parties, whether the requested documents even exist and could have been produced, and whether the defendant ultimately breached the order, when the motion might ultimately fail on the threshold procedural dispute. This decision on that procedural issue crystallizes the point.

Timetable, Production, and Delay

[14] Turning to the parties’ procedural debate, it is undisputed that the defendant made further production of nearly 2,500 documents following Graham A.J.’s decision. It appears that those documents were produced in late June 2023, prior to the examinations that had been directed by Graham A.J., which were scheduled for and took place in July 2023. The plaintiff did not seek to reschedule those examinations upon receiving the productions.

[15] The defendant correctly points out that Graham A.J. appears to have expected the parties to deal with disputes over sufficiency of the defendant’s productions at the examinations for discovery. At para. 71 of his reasons for decision, Graham A.J. stated, “To avoid further pre-discovery motions, any issues with respect to the scope and completeness of production by Jonas, Lake and JLA may be explored at the examinations for discovery of Mr. Symons, Mr. Yovovich and Mr. Albright, with any production motions brought thereafter.” Put simply, Graham A.J. directed that the parties should deal with further production motions after the examinations.

[16] Importantly, the parties’ agreement on a timetable for remaining steps to a set down was reached a year after the defendant had already produced a further and better affidavit of documents and the ordered examinations had been completed. The parties agreed to fixed deadlines for all motions, which became embodied in McAfee A.J.’s consent order.

[17] Notwithstanding that agreed timetable, the plaintiff did not book or bring any motion against the defendant before the deadlines. He did, though, book and bring a motion to compel answers to refused questions from the examination of the representative of the non-party, Lake Capital, and for production of all relevant, non-privileged documents from that non-party. The plaintiff’s decision not to move against the defendant is made more stark by that separate motion being brought.

[18] The plaintiff submits, essentially, that denying him leave to bring the motion would be procedurally unfair and would exonerate the defendant from non-compliance with Graham A.J.’s order. I disagree.

[19] This is a 2018 action. Without blaming either side, examinations for discovery were not completed until more than five years after the claim was issued (albeit that the pandemic may fairly have impeded some progress in 2020). From my involvement in settling the formal order from the motion before Graham A.J., I know that the parties had discussed the extent of the defendant’s production obligations prior to the defendant making further production and the subsequent examinations for discovery. Those discussions led to a form of order that was approved by counsel, but was rejected by the registrar in June 2023. The remaining examinations for discovery then proceeded and were completed in July 2023. I ultimately did not sign the form of order as agreed by the parties at the time, from which the plaintiff subsequently resiled.

[20] There has been more than ample time for the parties to bring any discovery-related motions. The current production dispute had crystallized by fall 2024. During that same period, the parties agreed to the timetable for bringing all remaining pre-trial motions. The parties took out a consent timetable order. The defendant’s specific positions on the disputed documents has been known by the plaintiff since at least October 24, 2024, when it was set out in a nine-page letter responding to a prior letter from plaintiff’s counsel (which is not before me). That letter was sent before the agreed deadline for bringing motions.

[21] There has been no change in circumstances since October 2024. While a fresh letter about the disputed documents was sent in June 2025, the plaintiff’s position regarding the defendant’s non-compliance has been ongoing since at least last year. The plaintiff submits that bringing a motion before I had settled the formal order from Graham A.J.’s decision would have been premature since the defendant’s non-compliance was not “fully spelled out” until I had done so. That argument ignores that the plaintiff’s position on non-compliance has remained consistent since at least last year, that the plaintiff has had years to bring a production motion since the defendant served its further and better affidavit of documents, and that no steps were taken to comply with or address the ordered deadlines in McAfee A.J.’s consent order. The deadlines for all motions to be brought had already passed by the time of the case conference before me in February 2025.

[22] To be clear, I am not excusing the defendant from any potential breach of Graham A.J.’s order. Whether or not there has been a breach is not an issue that I can fairly decide at this case conference. Nevertheless, there comes a time when the discovery phase of litigation must end. The plaintiff acknowledges receiving the defendant’s answers to undertakings in 2024. In the context of completed examinations and exchanged answers to undertakings, the parties agreed to a timetable to complete remaining discovery-related motions and other pre-trial steps leading up to a set down. The registrar had already rejected the draft order submitted from Graham A.J.’s decision in June 2023. A hearing to settle the order was not sought until November 2024, after all of the foregoing had already occurred.

[23] Although the plaintiff characterizes his proposed motion as one of addressing non-compliance with a court order, its pith and substance is a production dispute that is squarely captured by the parties’ consent timetable order and known prior to the ordered deadlines.

[24] In the circumstances of this case, I see no procedural unfairness in enforcing the parties’ agreed timetable. I accordingly decline to extend any of the deadlines under McAfee A.J.’s timetable order for motions and am denying leave to the plaintiff to bring the proposed motion.

ASSOCIATE JUSTICE TODD ROBINSON
DATE: July 7, 2025