Toronto,
Ontario
--- Upon commencing the Order with
Reasons on
Wednesday, October 22, 2008 at
1:15 p.m.
THE COURT: Madam
reporter, I am going to make a speaking order.
Subject to any
editorial changes, this shall be the order, so do you want to take that down?
REASONS AND ORDER:
THE COURT: First
of all, I have heard counsel for the parties and I have heard
Ms. Eren-Katz on her own behalf. I am satisfied, having read the
material and heard everyone, that the subject matter of the motion as raised by
Netbored does not and should not effect the order that I gave on October 14th,
2005 in this matter. The materials raised, even if proved, and I make no
judgment in that regard one way or the other, do not and would not have
affected the disposition of costs that I gave at that time. This is without
prejudice to whatever effect matters raised in respect of the motion may be put
before or argued or argued before or disposed of by the assessment officer in
this matter.
As to costs of
this motion, I fix them in the sum of $2,500, payable in the cause, the cause
being the disposition of the taxation.
With respect to
the directions, and I can deal with the directions of Justice Barnes of 12th
August this year, and the further direction of Justice Barnes in September of
this year concerning his disposition of the document motion, I will allow
Netbored ten days from this date to bring any motion that it considers
appropriate before Mr. Justice Barnes concerning the documents, or in the
alternative, to advise counsel for the defendants that it will not be bringing
such a motion.
I will give
Netbored ten days from the disposition of the Barnes motion or the advice that
they will not be seeking such a motion to file its sur-reply as set down by
Justice Barnes' direction of 12th August. I will then allow a further
five days, being the same amount of time set out by Justice Barnes for the
filing of material. The matter shall then be put in the hands of the
assessment officer for disposition as to an assessment of the costs.
In the meantime,
the parties are directed through their counsel to consult with each other and
determine an appropriate mediator for this and all the related litigation and
to endeavour to secure an appointment with such a mediator within the next
three months to see if this whole matter can be mediated.
I feel very
strongly that the parties have let their emotions control their judgment in
this matter, and that in turn has affected their pocketbooks. Therefore I
would ask that the parties explore the mediation, select a mediator and find a
date, and advise me as to what has been happening in that regard.
I remain open to
give further directions and orders as may be the necessary in this matter, and
invite the parties by letter simply to contact the court and ask that the
letter be sent to me as early as possible with respect to further directions.
I have noted the
undertaking by counsel on behalf of Netbored to enter into the mediation in
good faith. Am I correct with that?
MR. VALE: Yes,
sir.
THE COURT: And
that to attend to the matter promptly; am I correct in that?
MR. VALE: Yes,
sir.
THE COURT: And
that any determination made and agreed to by the parties as a result of the
mediation may be entered as an order of this or other appropriate court.
MR. VALE: Yes,
sir.
THE COURT: Thank
you. Mr. Turco, am I correct in that from you as well, that your clients
will cooperate with a speedy mediation?
MR. TURCO: Yes,
sir.
THE COURT: Thank
you. Is there any other matter I should address at this time?
MR. VALE: Sir, I
believe you mentioned that if there is a review of Officer Stinson's order,
that it could be you that reviews that.
THE COURT: Thank
you. I will further stipulate that any review of Officer Stinson's order
should be directed to my attention through the office of the Chief Justice who
administers these things.
So the Stinson
request should be made to the Office of the Chief Justice, that I be assigned
for any review of the order.
Is there any
other matter?
MR. VALE: Just
to understand, because I don't have a copy of the order, while the direction of
Justice Barnes is outstanding --
THE COURT: Been
amended in accordance with this order.
MR. VALE: Yes,
and the sur-reply follow his disposition?
THE COURT: Yes,
ten days after the disposition by Barnes.
MR. VALE: Thank
you, sir.
THE COURT: So
October 29th now becomes ten days after Barnes' disposition; or, if you advise
your friend that you are not proceeding with the motion, ten days after that
advice.
MR. VALE: Thank
you, sir. Is that ten business days?
THE COURT: No,
ten days.
MR. VALE: Fair
enough, thank you.
MR. TURCO: Your
honour, two points. One, you had mentioned costs, and you had said
"in the cause of the cost assessment". I am unclear how that
would work, because if there is divided -- we will be arguing about who had
more success on the cost assessment.
THE COURT: Yes,
that is true.
MR. TURCO: That
is one point. And then the other point --
THE COURT: I
will reserve the $2,500. I have fixed the amount for any further order to
be made by me upon request of any counsel. I will reserve the disposition, but
I would like to dispose of that only after I hear the mediation. I can do
one of three things. It will go to your client, Mr. Vale, it will go to
your clients, Mr. Turco, or there will be no order as to costs, because I feel
that we have done something today. While you weren't successful,
Mr. Vale, I feel that we have done something today.
I hope, and I am
looking at you, Ms. Eren, that this matter gets settled. Lawyers and costs
don't need to be happening.
MR. TURCO: The
last point, your honour, you mentioned my friend could bring his motion before
Justice Barnes. In Justice Barnes' direction of September, he mentions
that the motion needs to be brought in writing. I wanted to make sure --
THE COURT: Yes,
in writing.
MR. TURCO: Thank
you.
THE COURT: Is there
any further matter? Okay.
This court hereby
orders that:
Email this Content