Can-Euro Investments Limited v. Coles, 2012 NSSC 247

SUPREME COURT OF NOVA SCOTIA Citation: Can-Euro Investments Limited v. Coles, 2012 NSSC 247 Date: 20120705 Docket: Hfx. No. 332620 Registry: Halifax Between: Can-Euro Investments Limited Respondents/Plaintiff v. David Coles, Boyne Clarke Applicants/Defendants Judge: The Honourable Justice Peter P. Rosinski . Heard: June 25, 2012, in Halifax, Nova Scotia Counsel: Lorne S. Silver, for the Respondent/Plaintiff W. Augustus Richardson, Q.C. for the Applicant/Defendants By the Court : Background [ 1 ] This Motion for

Summary Judgment seeks to put an end to the Plaintiff ’ s action against Mr. Coles and the law firm Boyne Clarke. [ 2 ] To appreciate the origins of this Motion, one can review the context by way of earlier related decisions from Justice Beveridge (as he then was) Justice Pickup, and Justice Oland for the Court of Appeal, viz 2009 NSSC 20 2011 NSSC 381 and 2009 NSCA 114 .

[ 3 ] On July 17, 2008 Can-Euro brought an application pursuant to The Civil Procedure Rule s (1972) seeking an order for specific performance to compel “ Industrial Alliance ” to advance $12,500,000 mortgage funds at 4.08%. [ 4 ] That transaction did not close on the disbursement date (May 19) selected by Can-Euro. Unsuccessful attempts were made to close the transaction in the days following.

Industrial Alliance then refused to close at the interest rate fixed for the original disbursement date (4.08%), and Can-Euro refused to close at a different rate. [ 5 ] Can-Euro ’ s President, and representative at all material times was, and presently still is, Dr. Otto Gaspar. [ 6 ] Sometime around June 2, 2008 he retained the legal services of Boyne Clarke, and specifically Mr.

Coles to “ enforce Can- Euro ’ s rights under a Commitment Letter with ‘ Industrial Alliance ’ whereby Industrial Alliance agreed to provide Can-Euro with a CMHC insured mortgage in the amount of $12,504,725" according to his affidavit sworn February 24, 2012 and filed in this Motion on March 1, 2012. Ultimately Can-Euro ’ s application was dismissed, as was its appeal of Justice Beveridge ’ s decision by our Court of Appeal on November 13, 2009. [ 7 ] Can-Euro then filed a Notice of Action on July 19, 2010 against Mr. Coles and Boyne Clarke, alleging Mr.

Coles provision of legal services was actionable as a breach of contract and for negligence on his part. A Defence was filed on October 14, 2010. [ 8 ] The Defendants ’ Motion for

Summary Judgment on evidence pursuant to CPR (2009) 13.04 was filed on April 1, 2011 yet for various reasons was not heard until June 25, 2012. [ 9 ] At the Motion, the evidence was limited to (Exhibit #1 being documents related to Justice Pickup ’ s decision): - the February 24, 2012 sworn affidavit of Dr. Otto Gaspar; - the March 28, 2011 sworn affidavit of David Coles. Neither affiant was cross-examined. The applicable law [ 10 ] Civil Procedure Rule (2009) 13.04 reads:

Summary judgment on evidence 13.04

(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant

summary judgment.

(2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(3) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of a genuine issue for trial depends on the evidence presented.

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by thecontesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(5) A judge hearing a motion for

summary judgment on evidence may determine a question of law, if the only genuine issue for trial is aquestion of law.

(6) The motion may be made after pleadings close. [11] In Globex Foreign Exchange Corporation v. Launt, 2011 NSCA 67 our Court of Appeal has recently reviewed the test forsummary judgment on evidence. Justice Farrar stated between paras. 13 - 17: The prerequisites for

summary judgment to dismiss an action are -- first, that the applying defendant shows that there is no genuine issueof material fact requiring trial; and second, that the responding plaintiff fails to show that his claim has a real chance of success(Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423 at para. 27). Accordingly, the first question the Chambers judge had to ask herself was whether she was satisfied that there were no matters of fact orof mixed law and fact requiring trial.

Only if she were persuaded that this initial threshold had been met, would she then go on to ask thesecond question, that is, whether Globex demonstrated that it had a real chance of success... ...It is not the function of the Chambers judge on a motion for

summary judgment to determine matters of fact or mixed law and factwhich are in dispute... The Court's role is limited to assessing the threshold of whether a genuine issue exists for trial. The evaluation of credibility, theweighing of evidence and the drawing of factual inferences (except in limited circumstances) are functions reserved for the trial judge. [12] Justice Bryson in dissenting reasons noted that: The Court may draw inferences from undisputed facts provided that they are strongly supported by the facts... But the Chambers judgeshould not assess credibility, weigh the evidence or find facts on disputed evidence... - Para. 46 and In the case of a defendant moving for

summary judgment, he or she must show that the action prima facie fails in law… By providingevidence either of a valid defence to the plaintiff's claim or tending to show that the claim itself has no substance to it… - Para. 47. [13] More recently, Justice Farrar for the Court commented on a

summary judgment motion in the context of an action allegingprofessional negligence against a lawyer in Frothingham v. Perez 2011 NSCA 59 - leave denied [2012] SCCA No. 387. Position of the Parties [14] The analysis is informed by the pleadings the substantive law and the parties’ positions in each case. More specifically theparties’ positions in this Motion may be summarized as follows:

A) The Defendants say that there is a body of undisputed or indisputable facts that permit this Court to grant

summary judgment in theirfavour - see paras. 93-94 of Defendants’ brief. They characterize the Plaintiff’s allegations in

summary as:

i) Mr. Coles did not follow his client ’ s instructions; ii) Mr. Coles failed to place evidence before Beveridge, J. that Can-Euro was ready, willing and able to close on May 23, 2008 [if not May 19 as Can-Euro had also claimed]; iii) Mr. Coles failed to convert (or fully and properly advise against) the application to an action; iv) As a result of Mr. Coles negligence and/or breach of contract, Can-Euro suffered damages because it had to obtain alternate financing. [ 15 ] They argue that the evidence in this Motion unequivocally shows that:

i) Mr. Coles did follow all his client ’ s instructions (and even if he did not, the effect of his decision could not have affected the outcome since such departure by him has not on the evidence been shown to have had the potential for any impact on the outcome); ii) Dr. Gaspar for the client agreed with not placing evidence before Beveridge, J. regarding Can-Euro ’ s readiness, willingness and ability to close on May 23, and the client recognized that Can-Euro could not have met the obligations imposed on it by the Commitment Letter by May 23, 2008; iii) Mr.

Coles advice to proceed by way of application was reasonable and in accordance with Dr. Gaspar ’ s instructions. iv) The undisputed facts establish that the Plaintiff has failed to demonstrate that the Defendants caused any damages to befall the Plaintiff, particularly since the Plaintiff received significantly cheaper financing as a result of the delay arising consequent to the Industrial Alliance financing deal ending without closing.

B) The Plaintiff says in its brief that Mr. Coles failed to identify and investigate:

i) The legal and contractual conditions which would have allowed Industrial Alliance to increase the interest rate; ii) the facts intended to prove Can-Euro had met any and all pre-conditions for the closing (and was in a position to provide the securities requested at the closing scheduled for May 19, 2008); iii) the legal meaning of the mortgage documents which expressly and unconditionally confirmed the interest rate at 4.08% [until at least May 26, 2008]; iv) the legal and factual basis for the alleged agreement postponing the threshold funding date from May 19 to May 23, 2008; and failed to:

v) follow Can-Euro ’ s instructions, and otherwise proceed in accordance with the Skeleton Argument contained in a July 2, 2008 document, in breach of his retainer;

vi) provide proper advice, including in respect of the consequences of bringing the application (ie. its effect on Can-Euro ’ s ability to later take other steps such as an action); vii) replace a claim in equity with a claim based in breach of contract (although I note at this juncture on this point that Justice Beveridge appears to have considered that Can-Euro had argued both contractual breach by Industrial Alliance and the equitable doctrine of promissory estoppel and lack of good faith: see paras. 6 - 7, 81, 84, 130 - 134 and 150 - 151, 2009 NSSC 20 ; these issues were also argued by Mr.

Coles before the Court of Appeal - see para. 6, 2009 NSCA 114 ). [ 16 ] The Plaintiff succintly states their position on the Motion as: “The unchallenged affidavit evidence of Gaspar and the affidavit evidence of Coles, specifically regarding the fulfilment or non- fulfilment of Coles’ duties, directly conflicts, thus conclusively supporting the Plaintiff’s position that a trial is necessary to fairly and justly resolve the matters in dispute.” - Para. 6 Brief. [ 17 ] Can-Euro elaborates to similar effect at paras. 52 - 54, 67 - 73 and 76 - 77 of its brief. [ 18 ] In its oral argument Can-Euro refined its main arguments as to why

summary judgment has not been demonstrated as appropriate:

i) Mr. Coles did not follow his client ’ s instructions regarding the presentation of the Skeleton Argument drafted by Dr. Gaspar to Justice Beveridge and leading the evidence which would allow that and other arguments from the client to be presented to Justice Beveridge, nor did he follow Dr. Gaspar ’ s instructions regarding the appeal, although the Plaintiff Can-Euro, emphasizes, in the same breath, that Dr. Gaspar, though an intelligent man and sophisticated businessman, was not legally trained and therefore nevertheless relied on Mr.

Coles ’ expertise and advice - (compare paras. 74 Coles Affidavit versus paras. 29 - 31, 43, 45, 59 - 60, 63 and Tab “ N ” and “ V ” Gaspar affidavit); ii) Mr. Coles did not make Dr. Gaspar aware that if the Plaintiff ’ s application ( inter partes ) proceeded unsuccessfully, the Plaintiff would not later be able to re-argue the issues using an Action as a means of proceeding - (compare para. 41 Coles affidavit which in no way contradicts Dr. Gaspar ’ s later affidavit at para. 95); [ 19 ] Moreover, Can-Euro identified what it considered some of the material facts in issue including:

a) Whether all the available evidence was before Justice Beveridge regarding Can-Euro ’ s assertion that Industrial Alliance was at fault for the financing deal collapsing since Can-Euro argues that it was in a position (ready, able and willing) to close by May 19 or May 23 at the latest - compare the conflicting evidence of Dr. Gaspar ’ s affidavit (paras. 6, 58 and 63) versus Mr.

Coles ’ affidavit (para. 77). [ 20 ] Can-Euro draws particular reference to the dispute regarding the material facts which were Justice Beveridge ’ s focus in assessing whether Can-Euro was ready, will and able to close by May 23, 2008 (Decision paras. 31 - 32; 71; 113 and 144) and summarized at para. 67 of Dr. Gaspar ’ s affidavit:

i) The status of the three liens - paras. 68 - 74, Dr. Gaspar ’ s affidavit and see Exhibits “ CC ” , “ DD ” and “ EE ” ; ii) the RBC collateral mortgage - paras. 75 - 79, Dr. Gaspar ’ s affidavit and see Exhibits “ FF ” , “ GG ” and “ HH ” ;

iii) the Shared Facilities Agreement (SFA) - paras. 80 - 93 of Dr. Gaspar ’ s affidavit and see Exhibits “ JJ ” , “ KK ” , “ LL ” , “ MM ” , “ NN ” , “ PP ” , “ QQ ” and “ RR ” . [ 21 ] It argues that Dr. Gaspar ’ s affidavit (not contradicted since there was no cross examination or a reply affidavit from the Defendants) states that he was not kept properly informed by Mr. Coles as to important matters that would have affected the instructions that he gave to Coles eg. The differences between actions and applications; (compare paras. 40 - 41, 50 - 54 and 61 Dr.

Gaspar versus paras. 56 - 58 and 74 Coles affidavit); and that Coles was negligent in not adequately investigating and understanding the financing details and therefore failed to lead relevant evidence and make the associated legal arguments (compare Dr. Gaspar para. 63 versus paras. 77 and 80 Coles). [ 22 ] In reply, the Defendants repeatedly emphasized that almost all the material evidence in support of the Plaintiff ’ s positions on the Motion is based on the mere (unsupported by confirmatory evidence) statements by Dr.

Gaspar eg. that Coles “ did not follow instructions ” ; that there was other relevant evidence that could have and should have been led at the application before Justice Beveridge, etc. [ 23 ] Can-Euro argues that even if the Defendants establish that there are no material facts in issue at Stage 1, the Plaintiff has demonstrated that it has a reasonable chance of success in proving its claim. [ 24 ] At this juncture, the parties need only put sufficient evidence forward - it need not be ultimately persuasive in support of their position but it must create circumstances in which a judge could conclude that the Motion should or should not be granted.

Analysis Preliminary Issues

i) The effect on this Motion of earlier related judicial decisions [ 25 ] Both counsel made reference to the related decisions of Justice Beveridge, Justice Pickup and Justice Oland of the Court of Appeal. I queried them as to the use I could make of those in deciding this Motion. [ 26 ] Mr.

Richardson suggested that the findings of Justice Beveridge (affirmed by implication on appeal) are “ binding ” on this Court in so far as the appropriateness of those findings are not questioned by any of the evidence presented at this Motion; and he relied on them (eg. that Can-Euro was not ready to close the deal on either May 19 or 23, 2008 - and that Industrial Alliance was justified in not closing the deal). [ 27 ] Mr.

Silver suggested that Justice Beveridge ’ s decision is only relevant to set the context of the allegations by Can-Euro of what positions were taken by the parties and what evidence was led. [ 28 ] In British Columbia (Attorney General) v. Malik [2011] 1S.C.R. 657 , 2011 SCC 18 , the Court was faced with having to decide whether a Superior Court Judge hearing an ex parte application for an interlocutory order ( Anton Piller - in essence a private search warrant) may admit into evidence the findings and conclusions of a prior judicial decision (in that case the Rowbotham proceeding between Mr.

Malik and the Province in which the Judge concluded Mr. Malik “ remains a multi millionaire despite leading evidence to suggest his net worth is zero ” ) or whether the prior decision was not admissible to prove the truth of its contents unless the Province could establish that Mr. and Mrs. Malik were precluded by issue estoppel or abuse of process from relitigating the facts thus adduced.

[ 29 ] Justice Binnie for the Court said of such matters: In my view, for the reasons that follow, a judgment in a prior civil or criminal case is admissible (if considered relevant by the chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight.

The prejudiced party or parties will have an opportunity to lead evidence to contradict it or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel or abuse of process). [ 30 ] Since this is a Motion for

Summary Judgment, I make no findings of fact as I do not weigh the evidence, though on undisputed facts I can rely and in some circumstances draw inferences - see Justice Bryson ’ s comments (in dissent) at para. 46 which mirror those of Justice Farrar for the Majority at para. 17 in Globex supra. [ 31 ] Therefore I will only consider the earlier judicial decisions herein to inform the context of the allegations - I will not rely on any of their factual findings for the truth of their contents. ii) Whether the Court may draw a negative inference against the Defendants for not having complied with their obligations to make full disclosure including filing an affidavit of documents before this hearing? [ 32 ] At paras. 87 - 91 of its brief, Can-Euro argues that “ the Court should draw a negative inference from the failure of the Defendants to provide the requisite disclosure to the Plaintiff which could assist Can-Euro in putting its best foot forward on the Defendants ’ Motion for

Summary Judgment to dismiss the Plaintiff ’ s claims ” . [ 33 ] In support of their position, Can-Euro relies on Justice Fichaud ’ s Chambers decision in Halifax (Regional Municipality) v. Casey 2011 NSCA 69 - I note that the appeal was recently abandoned. [ 34 ] While it ’ s fair to say that, as a general rule, disclosure is required before a

summary judgment motion proceeds, each case must be examined individually. [ 35 ] Mr. Richardson in response suggests that Casey is distinguishable : - it involved a fundamental issue regarding whether the courts even had jurisdiction over the litigation or a collective agreement procedure should prevail; - HRM refused to give vital documents to Casey which fundamentally negatived his ability to put his best foot forward in response to HRM ’ s motion for

summary judgment; and that Mr. Richardson had offered the Plaintiff the opportunity to examine all the documents to “ pick and choose ” which they would want to have available for the hearing of the motion - see Exhibit “ 1" herein which contains some communications between counsel on this issue. [ 36 ] The position taken by Mr. Richardson was disputed by Mr. Silver. [ 37 ] Mr. Richards sent a brief post-hearing letter to my attention in which he stated:

I write on a matter of personal and professional privilege. Mr. Silver referred in his oral submissions today to my refusal to permit “access” to the documents of Boyne Clarke. I advised the Court that what I refused to deliver was an Affidavit of Documents. I attach the email chain of correspondence between myself and Mr. Silver on the issue that took place on May 14 th , 2012. Mr. Silver’s first email starts at the bottom of p. 1 and carries over to p. 2. My response, his reply and my final response start close to the bottom of p. 1 and end at the top of p. 1.

I trust the exchange speaks for itself and to our respective submissions on the point. [ 38 ] Mr. Silver stated in his responding letter: Further to Mr. Richardson’s letter to you dated June 25, 2012, I am obliged to point out that whether the communications between counsel that he has forwarded to you dealt with the Affidavit of Documents as opposed to the production of documents, the end result is the same. Notwithstanding repeated requests by predecessor counsel and myself, disclosure was NOT made prior to the return of the motion for

summary judgment. [ 39 ] The letters confirm that disclosure was not made voluntarily by the Defendants after requests by the Plaintiff. [ 40 ] Should I consequently draw a negative inference against the Defendants? I do not think it is necessary to do so as I conclude that the

Summary Judgment Motion fails in any event. [ 41 ] Moreover, I observe that Can-Euro did not make a Motion to have disclosure ordered, though it has had very ample time to do so. I infer that the importance to Can-Euro of having the disclosure before the

Summary Judgment Motion was not significant. Merits of the

Summary Judgment Motion [ 42 ] The Action herein alleges breach of contract and negligence as against Mr. Coles and Boyne Clarke. [ 43 ] Whether a lawyer has breached his contractual obligation to a client is a very much a fact driven assessment.

Insofar as allegations of professional negligence against lawyers are concerned, they will ultimately be protected from liability if a court determines that their handling of a matter was reasonable in the circumstances; which is also very much a fact driven assessment. [ 44 ] That is, provided an ordinary competent lawyer could reasonably have made the same decision(s), they will not be liable in negligence, even if the decision was an error in judgment. - Meister v. Coyle 2011 NSCA 119 , per Oland, JA; - Frothingham v. Perez 2011 NSCA 59 , per Farrar, JA, leave to appeal denied [2011] SCCA No. 387; - Rice v.

Condran 2012 NSSC 119 , per Boudreau, J.

[ 45 ] Under CPR (2009) 13.04(2) a court may allow “ partial ”

summary judgment - it must also be recalled that, until the Civil Procedure Rules (1972) were amended in 2002, Defendants could not avail themselves of

summary judgment motions - United Gulf Developments Ltd. v. Iskander 2004 NSCA 35 , per Roscoe, JA at para. 6. Once Defendants became so eligible in 2002 under the amended Rule, that reality caused Justice Roscoe to comment that (under CPR (1972)): I agree with Justice Moir that it is not possible to mirror the usual test for a plaintiff on a

summary judgment application where a defendant brings the motion. [ 46 ] For such cases, Justice Fichaud recently summarized the test in 2420188 Nova Scotia Ltd. v. Hiltz 2011 NSCA 74 at paras. 24 - 27 : To summarize these authorities, Stage 1 requires the motions judge to ask whether there is a disputed issue of material fact . If the answer is Yes, the judge should dismiss the application for

summary judgment, without engaging in Stage 2's assessment of the merits . I disagree with Mr. Alex's submission quoted above (para. 15) that "... the moving party need not demonstrate that there are no material facts in dispute ...". That is precisely what the moving party must show at Stage 1. Further, whether there is a disputed issue of material fact involves a comparison of both parties' evidence and positions . A dispute by definition engages more than one party. I disagree with Mr.

Alex's submission quoted above (para. 15) that at Stage 1 "... the motions judge is to look only at the evidence presented by the moving party." (Appellants' underlining). Mr. Alex's submission assumes that Stage 1 assesses the strength of the moving party's case in isolation, then Stage 2 assesses the strength of the responding party's case. This misunderstands the test. Stage 1 assesses whether there is a dispute of fact between the parties. Then Stage 2, if it is engaged, assesses the relative merit of the parties' positions .

The disputed fact under Stage 1 must be "material", ie. essential to the claim or defence. A dispute over an incidental fact will not derail a

summary judgment motion at Stage 1. [Emphasis added] [ 47 ] Therefore I ask myself:

i) Does a comparison of both parties ’ evidence and positions reveal that the Defendant moving party has demonstrated on evidence that there is no dispute regarding the facts which are material / essential to its defence or the Plaintiff ’ s claim? (i.e. there is no genuine issue of material fact or mixed law and fact requiring trial) - if the answer is “ no ” , then the Defendants ’ motion is dismissed, and consideration is given to providing directions for the trial - CPR 13.07. ii) only if the answer is “ yes ” , do I continue on to ask myself: Has the responding Plaintiff demonstrated based on the undisputed material facts that it has a real chance of success in its claim?

If the answer is “ yes ” , then the Defendants ’ Motion for

Summary Judgment is dismissed. [ 48 ] I am mindful that the purpose of the

summary judgment rule is to restrict from going on to trial, those cases which do not

present a material factual dispute, where in light of the undisputed material facts, the moving party is entitled to judgment as a matter of law. [ 49 ] In the case at Bar, the Plaintiffs have alleged:

i) Breach of contract (I note that the controversy involves whether Mr. Coles did not follow Can-Euro ’ s instructions and thereby breach the terms of his retainer). A comparison of the affidavits of Dr. Gaspar and Mr. Coles reveals that there is at least an air of reality to the Plaintiff ’ s position that Mr. Coles did not strictly follow his client ’ s instructions, and therefore there is a dispute regarding this material fact; ii) negligence in Mr. Coles handling of Can-Euro ’ s stituation. While Mr. Coles is protected from liability if:

a) He acted reasonably in his handling of Can-Euro ’ s situation; and

b) even were he negligent, if his negligence did not cause Can-Euro losses (eg. the better interest rate financing that the Defendants allege); A comparison of the affidavits of Dr. Gaspar and Mr. Coles reveals that there is at least an air of reality to the Plaintiff ’ s position that Mr.

Coles may have acted unreasonably in his handling of Can-Euro ’ s case (eg. not expressly explaining the disadvantages of proceeding by way of application versus action or not presenting further evidence at the application hearing); and that such breach of the duty of care may have caused losses to Can-Euro [(although the Defendants argued that even if Can-Euro ’ s loss included the $125,000 processing fee and the $12,500 non-refundable processing fee they say that (at para. 79 and 111 - 119 of its brief) Can-Euro saved about $85,000 per year as a result of alternative financing arranged at a lower interest rate, Can-Euro disputes these assertions (paras. 92 - 94 of its brief) and I note there is no confirmation as to the Defendants ’ source of information, etc. of this in the evidence except the conclusory mention by Mr.

Coles in para. 68 of his affidavit in support of this assertion]. In my opinion, the Defendants have not established that there is no material factual dispute to be resolved regarding the Plaintiff ’ s claim of breach of contract and negligence, so they fail at stage 1.

Conclusion [ 50 ] The Defendants ’ Motion must be dismissed as I conclude that in relation to all the Plaintiff ’ s claims they have not demonstrated that there is no material factual dispute to be resolved at a trial. [ 51 ] My decision should in no way be taken as suggesting that the Plaintiff ’ s success herein is likely, as at this stage I do not have all the relevant trial evidence before me, and I do not weigh the evidence. I am only deciding that there is a sufficient basis for these allegations to proceed to trial. Credibility will play a key

part in the outcome of the eventual trial. I have not heard from either Dr. Gaspar or Mr. Coles on the witness stand as neither was cross-examined. [ 52 ] Having dismissed the Motion, I will order costs on the usual Tariff “ C ” basis in favour of the Plaintiff in the amount of $2000 which is the suggested amount from which I see no reason to depart.

[ 53 ] I next will ask the parties to address to me their position regarding possible directions from me regarding conduct of the action - Civil Procedure Rule 13.07. J.