Court of Appeal for Ontario
Date: 2018-04-09
Docket: M48656 (C64385)
Judges: Pepall, Brown and Trotter JJ.A.
Between
R. Fenn Moving Party (Appellant)
and
Janet Eleanor McCabe in her personal capacity, Janet Eleanor McCabe in her personal capacity as a Beneficiary, Janet Eleanor McCabe in her capacity as power of attorney for property (continuing), Janet Eleanor McCabe in her capacity as power of attorney for personal care, Janet Eleanor McCabe in her capacity as Estate Trustee and Executor, Ruth Alma Fenn-Phillips in her personal capacity, Ruth Alma Fenn-Phillips in her personal capacity as a Beneficiary, Ruth Alma Fenn-Phillips in her capacity as power of attorney for property (continuing), Ruth Alma Fenn-Phillips in her capacity as power of attorney for personal care, Ruth Alma Fenn-Phillips in her capacity as Estate Trustee and Executor, Mary Margaret Fenn-Dunbar in her personal capacity, Mary Margaret Fenn-Dunbar in her personal capacity as a Beneficiary, Mary Margaret Fenn-Dunbar in her capacity as power of attorney for property (continuing), Mary Margaret Fenn-Dunbar in her capacity as power of attorney for personal care and Mary Margaret Fenn-Dunbar in her capacity as Estate Trustee and Executor
Responding Parties (Respondents)
Counsel
Robert Fenn, acting in person
M. Roefe, for the respondents
Heard: March 27, 2018
Reasons for Decision
[1] The moving party is self-represented. The Registrar dismissed the moving party's appeals for failure to perfect. Justice Miller of the Superior Court of Justice had struck out all of the moving party's pleadings with the exception of his application for a Passing of Accounts and for Directions in that regard.
[2] By order dated December 20, 2017, Nordheimer J.A., sitting as a single judge of the Court of Appeal, declined to set aside the Registrar's order. He concluded that the moving party had failed to provide any real reason for the delay to perfect, and there was no merit in the appeals.
[3] The moving party moved to review the decision of Nordheimer J.A.
[4] On Friday, March 23, 2018, at approximately 3:30 p.m., the moving party contacted the court requesting an adjournment of his motion that was scheduled for the following Tuesday, March 27. He advanced medical reasons and submitted draft medical reports, which were transcribed on January 12 and 16, 2018. His request was opposed by counsel for the respondents, and he was advised to make his request for an adjournment on the date scheduled for the motion. He subsequently served a notice of motion, returnable March 27, 2018, seeking an adjournment. He requested that it proceed by telephone conference call. He was authorized to proceed by telephone conference call, but was advised that if he were unsuccessful with his request, he would have to argue the motion.
[5] On March 27, 2018, the moving party sought to adjourn his motion to review Nordheimer J.A.'s order. He submitted that he was on pain medication and wished to advance undefined arguments relating to the Canadian Charter of Rights and Freedoms. His request was opposed by the respondents, who are relatives of the moving party.
[6] We denied the request to adjourn the motion for the following reasons.
[7] The moving party has very extensive experience with litigation. Indeed, the materials before us were replete with proceedings brought by him, much of which was directed at his respondent siblings. He also asserted claims against their counsel and various judges. The respondents have had to spend time and money defending his multiple proceedings. They were ready to proceed, wished to bring finality to these matters, and their counsel, who practices in Burlington, was prepared to argue the case.
[8] We are mindful of the moving party's health challenges. However, the draft medical report, filed in support of his request, is from January and therefore dated, and it does not say that there is any impediment to his participation in these proceedings.
[9] The moving party submitted that his main reason for the adjournment was that he wished to advance Charter arguments. Significantly, he preferred to rely on his written materials in support of his position on the motion itself but wanted the motion to be adjourned so that he could file more materials and raise new arguments.
[10] The moving party had ample opportunity to file adequate materials, did file and serve in person extensive quantities of materials, and could have sought the adjournment at an earlier date.
[11] In our view, it would be unfair to the respondents to adjourn this matter. The interests of justice would not be served by an adjournment. As such, the request was refused.
Motion to Review
[12] The panel then heard the motion to review. In his notice of motion challenging Nordheimer J.A.'s order, the moving party stated that he expected the oral argument to be by way of written submissions on the hearing date and not orally.
[13] Having reviewed the written materials, we heard argument and reserved our decision. We are dismissing the moving party's motion for the following reasons.
[14] Justice Nordheimer considered the moving party's failure to explain his delay. In that regard, he properly observed that in the face of one order, only one appeal was required, not seven as the moving party insisted. He also concluded that there was no merit to the appeals and stated that Miller J. had given very careful reasons, addressing all the problems with the moving party's various motions and applications. Lastly, he concluded that the test for setting aside the Registrar's order was not met.
[15] A decision of a judge sitting in review of the Registrar's dismissal order for failure to perfect is discretionary in nature. We see no error in the decision of Nordheimer J.A. The motion is dismissed.
Costs
[16] The respondents, as the successful parties, seek costs of $10,637.57 in substantial indemnity costs. We are ordering the moving party to pay the respondents $3000 in costs on a partial indemnity scale, inclusive of fees and disbursements.
"S.E. Pepall J.A."
"David Brown J.A."
"G.T. Trotter J.A."