Federal Court Decisions

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:

ORDER to go in accordance with these oral reasons, as may be edited.

                 Thank you.

--- Whereupon the hearing concluded Wednesday,

    October 22nd, 2008, at 1:16 p.m.

                               "Roger T. Hughes"

                                     Judge

I HEREBY CERTIFY THAT I have, to the best

of my skills and abilities,

accurately recorded and transcribed therefrom,

the foregoing proceeding.

___________________________________

Catherine Keenan, Computer-Aided Transcription