2013 ONSC 6490, 2013 ONSC 6490

CITATION : Pineau and Merovitz Potechin LLP, 2013 ONSC 6490 COURT FILE NO.: 10-50001 DATE: October 17, 2013 SUPERIOR COURT OF JUSTICE - ONTARIO RE: RICHARD PINEAU AN D: MEROVITZ POTECHIN LLP BEFORE: Master MacLeod COUNSEL: William Fuhgeh, for the Plaintiff Craig O’Brien, for the Defendant HEARD: October 17, 2013 ENDORSEMENT 1 . This matter was scheduled as a full day motion. The plaintiff moved to compel the defendant to attend mediation and for costs as well as to amend the pleadings and for certain orders flowing from the discoveries.

The defendants moved to production of certain documents over which privilege was claimed. 2 . The parties have agreed that the motion has to be adjourned but there is disagreement concerning the terms. The plaintiff’s proposed terms are set out in the letter of October 11, 2013 which is at tab 10 of the Affidavit of Mr. Pineau. The terms sought by the defendant are set out in the confirmation form. 3 . Both parties agree the motion should be adjourned to a fixed date and both parties agree there is a need for a fixed timetable.

The disagreement appears to be concerning the time for the intervening steps and what steps should be permitted or required. 4 . By way of context this date was fixed on July 3, 2013 at a case conference and it was at that time adjourned to this date from August 9 th , 2013. The order of July 3, 2013 set out a timetable which apparently has not proved practical. 5 . The only apparent disagreement has been the date for delivery of an expert report and the date for delivery of responding material and perhaps the specific manner of fixing the new date. 6 .

I gather some of the problem may be failure to differentiate between a responding affidavit- which must be served before

cross examination – and other responding materials such as the transcripts and the factum. 7 . The way in which a timetable is usually resolved is to fix the date and then work backwards. This may not be appropriate if there is a variable event over which the parties have no control but that does not appear to be the case here as the only variable will be the ability of the expert to produce the report. 8 . I am advised by Mr. Fuhgeh that he does need the expert report to complete the responding affidavit. This means that the November 7 th date for cross examination of Mr. De Toni will not work. 9 . The timetable will therefore be amended as follows:

a) The motions are adjourned to February 6 th , 2014 at 10:00am.

b) The plaintiff’s expert report shall be served by November 18, 2013 at the latest.

c) The plaintiff’s responding affidavit for the privilege motion shall be served by November 29 th , 2013.

d) Cross examination of Mr. De Toni shall proceed on December 16 th , 2013 and if the defendants elect to cross examine on the plaintiff’s affidavit that will take place on December 17 th , 2013.

e) Each moving party shall serve a factum by January 24 th , 2014 and each responding party by January 31, 2104.

f) All material is to be filed with the court and the motions confirmed by February 3 rd , 2014. 10 . I am not going to deal at length with the various allegations of discourtesy or other improper conduct because they are not necessary for the purpose of this order and are not properly before me. They are not relevant to what I have to decide. They are however causing both distraction and costs. 11 . Counsel are to review the Advocates Society Guidelines on Professionalism and Civility that have been endorsed by the Law Society as well as this court. 12 . The way in which Mr.

Fuhgeh has put this in issue is highly improper. Paragraphs 43-46 of the Pineau affidavit have no place in this motion as they reflect the opinion of counsel and not facts to which his client could depose. Paragraphs 17 and 18 are similar. Accordingly those paragraphs are struck from the Pineau affidavit and I will not admit the Dubeau responding affidavit. Due to the incendiary nature of those allegations I will direct that the paragraphs in the court copy of the affidavit be physically struck out with black marker. 13 . I am not finding that the conduct of Mr. Dubeau was impeccable.

I am making no finding one way or the other. At the end of the day this was a consent adjournment with a minor dispute over terms. The adjournment was necessary in the first instance because the plaintiff could not produce his expert report and secondly by the request to cross examine Mr. De Toni. The dispute over terms arose partly because it seemed Mr. Fuhgeh was proposing to deliver affidavit material after he cross examined Mr. De Toni. 14 . Costs of today are reserved to the hearing of the motions. I note however that there were costs claimed because Mr.

O’Brien had to appear today due to the allegations leveled against Mr. Dubeau. Those costs are claimed at $1,880 on a partial indemnity scale and $2351 on a substantial indemnity scale. I have heard Mr. O’Brien’s submissions on this point and this need not be reargued but I will defer decision on those discrete costs until I have dealt with all of the costs of these motions. ___________________________ Master Calum MacLeod