Court File No.: 110/08

Released: 20080424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Arthur Duncan Green, Petitioner (Respondent in Leave Application),

Kenora Prospectors & Miners, Limited, (Respondent/Applicant in Leave Application)

Suzanna Dobson Green and Suzen Associated Holdings Ltd., (Respondents)

Before: J. Macdonald J.

Counsel: Arthur Duncan Green: in Person;

Kenora Prospectors & Miners, Limited: Mr. Erik Penz

Suzanna Dobson Green and Suzen Associated Holdings Ltd.: no one appears

Heard at Toronto: April 21,2008

E N D O R S E M E N T

[1] Kenora Prospectors and Miners, Limited (the Applicant) seeks leave to appeal to the Divisional Court from Backhouse J.'s order of February 29, 2008.

PROCEDURAL BACKGROUND

[2] The Petition for Divorce was issued in 1993. The Divorce was granted in 2002. In 2004, Mr. Green amended the Petition, claiming that Ms. Dobson's shares in the Applicant are matrimonial property to be divided between them, and claiming other relief in respect of the assets of the Applicant under her control.

[3] On August 16, 2005, Backhouse J. added the Applicant as a party even though a notice of motion seeking this relief had not been served on the Applicant. The Applicant does not now seek to impugn this order.

[4] On November 20, 2007, Backhouse J. ordered that the parties shall not bring further interlocutory motions without her leave, previously obtained. The Applicant does not seek to impugn this order.

[5] On February 9, 2008, Backhouse J. conducted a trial management conference herein, and fixed a trial date of October 27, 2008. At the conference, the Applicant asked Backhouse J. for "an opportunity to argue that they should be removed as parties", as the judge noted in her handwritten endorsement. Backhouse J. denied the Applicant leave to bring the motion. The Applicant seeks leave to appeal this order, relying on Rule 62.02(4) (b) of the Rules of Civil Procedure.

[6] The Applicant submits that:

(a) There is good reason to doubt the correctness of Backhouse J.'s order because she denied the Applicant's right to be heard on the question of whether she should grant it leave to move for an order that the action be dismissed against it, and

(b) The order and proposed appeal have the requisite degree of importance because this denial of natural justice is likely to undermine public confidence in the Court and its processes.

ANALYSIS

[7] I am satisfied that the order in issue is interlocutory in nature because it does not finally dispose of the issue of whether the Applicant should be a party to this proceeding.

[8] Ms. Dobson's affidavit sworn April 15, 2008 establishes the following for the purposes of the leave application:

(a) She is a director and officer of the Applicant, and is the Respondent;

(b) The Applicant was added as a party to facilitate determination of the ownership and the value of certain property in issue, known as Gold Point Farm Camp;

(c) These steps have been completed;

(d) No claims or allegations are made against the Applicant by the Petitioner, Mr. Green;

(e) The Applicant sought to bring a motion for an order removing it as a party because the steps mentioned in subparagraph (b) (supra) had been completed, and because there are no claims advanced against it;

(f) The Applicant has no interest in this proceeding, and intended to file evidence in support of its position;

(g) On February 22, 2008, the Applicant's lawyers attempted to file a Motion Form for a motion to be heard in writing for Backhouse J.'s leave to bring a motion for an order removing it from this litigation. However, the Court clerk advised that the leave application must be "heard orally". The lawyers then did not file a Motion Form or Motion Record in respect of an oral hearing, and did not requisition a date for an oral hearing;

(h) Consequently, the Applicant's intended motion for leave was not returnable before Backhouse J. on February 29, 2008;

(i) At the Trial Management Conference on February 29, 2008, the Applicant's counsel advised Backhouse J. that the Applicant "intended to bring a motion requesting Her Honour's leave to bring a motion to be removed as a party to this proceeding".

[9] In my opinion, there is good reason to doubt the correctness of Backhouse J.'s order, for the following reasons. There is good reason to conclude that the applicant asked Backhouse J., in her capacity as a trial management conference judge to schedule a hearing date for its motion for leave to move for an order dismissing the action against it, and that Backhouse J. thereupon refused to grant leave instead of giving the applicant a date to bring its motion for leave. I base this conclusion on the following:

(a) Backhouse J.'s handwritten endorsement of February 29, 2008 notes that the applicant asked her for "an opportunity to argue" that it should be removed as a party. The endorsement does not state that the applicant moved then for the required leave;

(b) The formal order of February 29, 2008 demonstrates that on that day, Backhouse J. denied leave to the applicant to move for dismissal of the action against it;

(c) Ms. Dobson's uncontradicted affidavit is to the effect that the applicant's lawyers wished to bring a formal motion for leave, with affidavit evidence, but had not done so as of February 29, 2008. This evidence, taken together with the judge's endorsement that the applicant asked only for the opportunity to argue, is capable of establishing that the leave motion was not argued on February 29, 2008;

(d) Backhouse J.'s handwritten endorsement makes no reference to the grounds on which the applicant intended to argue that it should be granted leave to move for a dismissal of the action against it. The judge's reason for refusing leave is stated to be that the applicant "should have and did not oppose the order adding them". The lack of reference to, or analysis of the applicant's proposed grounds for seeking leave is capable of confirming that the applicant did not have the opportunity to present its case for leave at the trial management conference of February 29, 2008.

[10] Turning to the importance of the order and the proposed appeal, Mr. Green submits that the issue of whether the Applicant is a defendant is a minor issue in the context of all of the substantive issues to be tried. While that is likely true from his perspective, two factors have much systemic significance and therefore, public importance, in my opinion. The first is the right of a litigant to be heard on the merits of its position before the court adjudicates on that position. The second is the proper conduct of a trial management conference in family law cases. These factors merge in this case because the evidence is capable of leading to the conclusion that the powers of a trial management conference judge were misused so as to deny the applicant its right to be heard on the merits of its leave application.

[11] The right of a party to be heard on the merits of the positions which it wishes to argue in court is one of the hallmarks of justice. The right to be heard is one of the foundations of public respect for, and confidence in the court. In turn, public respect for, and confidence in the court and its processes are fundamental to the court's ability to discharge its important role.

[12] In family law cases like this, judges properly take an active role in moving litigation to a timely, cost effective and just conclusion. While conferences are a valuable tool in timetabling and otherwise managing litigation issues, and in resolving claims, conferences nonetheless are a tool which must be used with care so that the substantive rights of the parties are not overridden and, absent their consent, their positions are not compromised without a proper hearing on the merits. It is reasonably arguable that trial management conference procedures cannot be used as a means of denying substantive or procedural rights to a party, against its will, because to do so would not be in accordance with principles of fundamental justice, including that party's right to be heard.

[13] This is all the more so where an extraordinary order has been made denying a party the right to bring interlocutory motions except with the leave of the judge who made the extraordinary order. That party is foreclosed from seeking leave before other judges of this Court. The potential for a denial of justice or for the appearances thereof is increased, in this circumstance.

ORDER AND DISPOSITION

[14] The Applicant is granted leave to appeal Backhouse J.'s order of February 29, 2008 denying it leave to bring a motion for an order that it be removed as a party.

[15] The costs of this motion are reserved to the Divisional Court panel hearing the appeal.

[16] I have suggested to the parties that each of them should consider requesting an order expediting this appeal because the trial is fixed to start on October 27, 2008.

[17] The Applicant did not raise before me the issue of whether, if the appeal is allowed, the motion should be heard by Backhouse J. or by another judge.

John Macdonald J.

Released: April 24, 2008