[26] Having reviewed Mr. Ferro’s affidavits filed in support of the ex parte service motions, I consider the conduct of plaintiff’s counsel to be troubling on its face. Subrule 37.07(2) permits a motion to proceed without notice “where the nature of the motion or the circumstances render service of the notice of motion impractical or necessary ….” As a matter of common practice, motions relating to service (particularly substitutional service) proceed on an ex parte basis. However, in this case, at the time that the motion for substitutional service on Mr. Volpini was brought in July 2012, plaintiff’s counsel was well aware that Paterson, MacDougall had been counsel for Mr. Volpini and Sherwin-Williams in the related Mallett action, which had settled within the previous month. In those circumstances, I see no obvious justification for failing to notify Paterson, MacDougal of the motion, or inquiring as to whether they would accept service on Mr. Volpini, as they had in the Mallett action.
[27] I find even more troubling the conduct of plaintiff’s counsel relating to the subsequent ex partemotion to validate service on Sherwin-Williams. In that case, Mr. Ferro’s firm had been placed on notice that Sherwin-William and Mr. Volpini had retained Paterson, MacDougall with respect to the Steele action itself. Plaintiff’s counsel also had notice that the defendants were contesting the effectiveness of service. In the face of that, I see no obvious justification for the failure by plaintiff’s to notify Paterson, MacDougall of the motion or to advise the court of the defendants’ position on the issue of service, given the requirement for full and frank disclosure of all material facts in subrule 39.01(6).
[28] During oral submissions, I asked special counsel for the plaintiff to address the foregoing concerns, which had been raised by counsel for the moving parties. He responded that counsel for the moving parties had the opportunity to cross-examine Mr. Ferro on his affidavits, but had not done so. In that regard, he argued the court should not draw adverse inferences relating to the conduct of Mr. Ferro and his firm in the absence of an opportunity for Mr. Ferro to provide an explanation on cross-examination.
[29] To the extent that I make findings relating to the conduct of Mr. Ferro and his firm, I agree that I am entitled to take into account the fact Mr. Ferro was not cross-examined on his affidavits. However, in my view, that fact does not provide a complete answer with respect to any adverse findings I might otherwise make about his conduct.