Two recent decisions by the Ontario Superior Court of Justice raise the issue of a judge’s jurisdiction to grant substantive relief at case conferences which are typically reserved for procedural matters based on written or oral submissions and without the benefit of evidence. In both cases, the same judge concluded that he had jurisdiction to make substantive rulings during a case conference without requiring a full hearing. Both decisions were rooted in an attempt by the Court to address the lengthy delays and backlog of cases currently facing the civil justice system in Ontario. The decisions open the door to the possibility that, in the right circumstances, the principles of proportionality, timeliness and affordability can weigh in favour of a substantive ruling at a case conference instead of requiring a conventional hearing with its attendant delays and costs.
Miller v. Ledra et al.
In Miller v. Ledra et al.,[1] the applicant, a former director and alleged shareholder of the corporate respondent, sought the production of the corporate respondent’s annual financial statements and an order requiring the corporate respondent to hold a shareholders’ meeting. The respondents opposed the relief and requested an adjournment due to the alleged health condition of the personal respondent. During a case conference, the Court declined the request for adjournment and granted the relief sought by the applicant.[2]
In doing so, the Court referenced a relatively new practice direction for cases on the Civil List in the Toronto Region (the Practice Direction), under which opposed motions and applications of less than two hours should be directed to a case conference before scheduling an oral hearing (subject to certain exceptions).[3]
In Miller, the applicant claimed that he was a 20% shareholder of the corporate respondent, Biosa Technologies Limited (Biosa). The applicant intended to rely on the corporate share register and other records obtained by Biosa’s external lawyer to prove that he was a shareholder. Biosa denied that the applicant was a shareholder, alleging the records provided were “not authentic,” without providing any further explanation.[4]
The earliest date available to hear the motion was 14 months away from the case conference. Instead of remitting the matter to a formal hearing which, according to the Court would exacerbate the significant backlog of civil cases in Ontario, the Court denied Biosa’s adjournment request and granted the applicant the substantive relief sought at the case conference. The Court considered the facts of the case, the respondents’ consistent delay tactics, and the insufficient reasons for the respondents’ request for adjournment. The Court then weighed the prejudice that the respondents would suffer if the relief were granted at the case conference against the prejudice to the applicant “and others in the justice system” if the relief were not granted.[5]
The Court commented on the significant delays in Ontario’s civil justice system and their negative repercussions on access to justice. In the judge’s view, the core issue – which essentially boiled down to determining the authenticity of a share register without any explanation or evidence to the contrary – did not warrant making the parties wait 14 months for a formal hearing. To do so would be “burdening the parties with elaborate procedures that actually impede justice.”[6]
The judge determined that he had the authority to grant substantive relief at the case conference based on the powers outlined in Rule 50.13(6) of the Rules of Civil Procedure (the Rules), with a view to the interpretive principles outlined in Rule 1.04.[7]
Rule 50.13(6) of the Rules provides that a case conference judge may:
- Make a procedural order;
- Convene a pre-trial conference;
- Give directions; and
- In the case of a judge,
- Make an order for interlocutory relief, or
- Convene a hearing.
Rule 1.04(1) provides that “[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Rule 1.04(1.1) further stipulates that “[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”
Notwithstanding that the Rules do not expressly confer the power to make substantive rulings at a case conference judge, the Court was prepared to make the order based on liberal interpretations of “directions” and “interlocutory relief.”
Think Research Corporation v. N & M Medical Enterprises
A few months after his decision in Miller, the same judge adopted a similar approach when he granted substantive relief at a case conference in Think Research Corporation v. N & M Medical Enterprises.[8] In that case, the parties were unable to agree on the appropriate calculation of “net working capital,” which would adjust the purchase price of the shares purchased. Under the share purchase agreement, certain named accounting firms were to be appointed if the parties could not agree on that calculation within a specified period. After several months of discussions, the applicant eventually delivered a notice to appoint an accounting firm to make the calculation. The respondent argued that the applicant was contractually out of time. An application on the merits would not be able to be heard for over a year.[9]
In Think Research, the matter first came before the court at a case conference, following which the judge provided an endorsement indicating that another case conference would be scheduled. The endorsement specified that “[t]he object of the [second] case conference will be to make a determination on the merits of the application,” and “[t]o facilitate this, both sides should deliver a case conference memo of up to 10 double spaced pages setting out their position and why they should succeed.”[10]
The respondent submitted that evidence was necessary to resolve the application on its merits and that the Court did not have the power to grant substantive relief at the case conference. The Court rejected these arguments, holding that a party could not make bald assertions that factums and application records should be exchanged and cross-examinations should be conducted just to avoid the granting of substantive relief at a case conference (which, in this case, merely involved the appointment of an accounting firm). The judge further noted that he retained the authority to do so for many of the same reasons as articulated in Miller, and particularly so in this case, given that he notified the parties that a determination on the merits of the application would be made at the case conference.[11]
Key takeaways
In light of Miller and Think Research Corporation, it is now at least arguable that a judge has jurisdiction to grant substantive relief at a case conference, notwithstanding that the Rules do not expressly confer this right. In light of this possibility, counsel should be prepared to make substantive submissions at case conferences, especially if (i) advance notice is given by the judge of an intention to make a substantive finding at a case conference; and (ii) the issues in dispute are straightforward and can be adjudicated based on a limited (or non-existent) evidentiary record. Conversely, in order to resist a potential substantive finding at a case conference, a party should be prepared to make cogent submissions, with reference to specific evidence, as to why a case conference is not a proportionate or appropriate procedure to make a substantive finding. Bald assertions that more evidence is required, without pointing to specific examples, will no longer suffice.
Anecdotally, the authors of this article recently appeared at a case conference where the issue in dispute – a breach of a court order made at a previous case conference – was straightforward and not in dispute, and where the party who requisitioned the case conference submitted that it was open to the Court to make a substantive ruling at the case conference in light of Miller and Think Research, rather than requiring the parties to schedule formal motions, with their attendant delays and costs. The judge declined to entertain these arguments, noting that case conferences were limited to procedural matters only and that the judge “never has and never will” make substantive determinations at a case conference without the benefit of a full evidentiary record. Therefore, as a matter of practice, it remains to be seen whether the Court’s rulings in Miller and Think Research are an outlier, or whether they will be persuasive and adopted generally.
We would like to thank Eli Berman, articling student in the Toronto office, for his assistance with the preparation of this insight.
[1] 2023 ONSC 4656 [Miller].
[2] Ibid at paras 3-5.
[3] Miller, supra note 1 at paras 8, 11. The practice direction does not apply to summary judgement motions, appeals from associate judges, and appeals from the Consent and Capacity Board. See Superior Court of Justice (Ontario),“Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region,” effective September 4, 2023, online: <www.ontariocourts.ca/scj/practice/regional-practice-directions/toronto/consolidated-practice-direction-for-civil-actions-applications-motions-and-procedural-matters-in-the-toronto-region/>.
[4] Miller, supra note 1 at para 12.
[5] Ibid at paras 12-29.
[6] Ibid at para 28.
[7] Miller, supra note 1 at paras 35-36, citing Rules of Civil Procedure, R.R.O. 1990, Reg. 194, made under the Courts of Justice Act, R.S.O. 1990, c. C.43 at rr. 1.04(1) and (1.1).
[8] 2023 ONSC 6910 [Think Research].
[9] Ibid at paras 3-16, 21.
[10] Ibid at para 12.
[11] Ibid at paras 12-31.
