CITATION: Armstrong v. Armstrong, 2016 ONSC 146
COURT FILE NO.: DC-15-106
DATE: 2016 01 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUTH ARMSTRONG v. MORLEY ARMSTRONG
BEFORE: LEMAY J.
COUNSEL: M. Hoy, Counsel for the Applicant J. Birchall, Counsel for the Respondent
E N D O R S E M E N T
LeMay J.
Introduction and Background Facts
[1] Ms. Ruth Armstrong, the Applicant in this case seeks leave to appeal from the order of Dawson J. dated June 17th, 2015. In that order, the motions judge ordered costs payable to the Respondent, Mr. Morley Armstrong, in the sum of $36,912.82. These costs were on account of four motions, two by the Applicant and two by the Respondent.
[2] The underlying decisions on these motions, which were released on February 9th, 2015 and April 7th, 2015 are not being appealed. It is only the costs order flowing from these decisions that is being appealed.
[3] For the reasons that follow, leave to appeal Dawson J’s order of June 17th, 2015 is denied.
[4] I will now set out some of the complex procedural history to this matter that resulted in the leave application, and my decision on it.
a) The Underlying Proceeding
[5] This is a contentious divorce proceeding. I understand that it was scheduled for trial in June of 2015, but was adjourned to the fall 2015 sittings by Price J. I am not aware of the status of the trial at this point.
[6] There were a number of interim orders in this case, which was commenced in 2013. One of the most significant appears to be an interim order issued by Mossip J. on May 16th, 2014. This was a consent order and dealt with significant financial and disclosure issues. One of the key issues was that the Respondent and his appraiser were to be entitled to have access to the matrimonial home and property for the purposes of valuing approximately 15 horses, as well as other property.
[7] Part of the purpose behind this consent order was to ensure that the Respondent could prepare his case, and that there could be meaningful settlement discussions at a case conference scheduled in the summer of 2014.
b) The Motions Before Dawson J.
[8] There were four motions before Dawson J., two of them from the Applicant and two from the Respondent. All the matters were heard together on February 2nd, 2015 and April 7th, 2015. They consumed approximately nine hours of Court time.
[9] The Applicant’s motions can be broadly divided into two categories. First, there was a series of claims relating to support and property. Second, there was a claim that the Respondent had failed to comply with undertakings that he had given on questioning.
[10] The Respondent’s motions were, in essence, efforts to enforce the consent order of Mossip J., by requiring the Applicant to permit access to the property and to provide the disclosure necessary to value the jointly owned assets.
[11] In deciding the motions, Dawson J. determined that the Applicant “has obstructed and delayed these proceedings by placing numerous roadblocks in the way of progress,…”. He then granted the relief sought by the Respondent on the motions, and dismissed virtually all of the relief sought by the Applicant.
[12] In particular, the Applicant’s undertakings motion was dismissed with only one exception. This is significant, given that there were approximately seventy (70) undertakings. It is also noteworthy that the Applicant’s counsel took inconsistent positions before Dawson J. with respect to the undertakings motion.
[13] The Applicant is not appealing any of these findings.
[14] Dawson J. then provided the parties with three weeks to make costs submissions. His final direction in this regard states “If counsel are unable to agree on costs they should exchange costs outlines and written submission limited to four pages. These documents should be provided to me within three weeks.”
[15] On June 17th, 2015, Dawson J. released his costs endorsement. It directed that the Applicant was to pay $36,912.82 to the Respondent forthwith. He also noted that the Applicant had failed to comply with the time limit for making submissions, and that she had not filed any submissions.
[16] Ms. Hoy, counsel for the Applicant, has provided in her compendium a facsimile cover sheet showing that a letter was sent to the Orangeville Court office on April 27th, 2015. This letter purported to attach the costs submission of the Applicant. However, I was not provided with any Affidavits to corroborate this, or any other information about what the Court actually received.
[17] I also note that Ms. Hoy’s materials do not include any information about what was actually in the Court record. I will return to this issue below.
c) The Leave to Appeal Directions
[18] The leave to appeal application originally came before Seppi J. as a leave to appeal application in chambers. On review, she determined that this was not a matter that could be addressed in chambers because of the complexity of the issues. This complexity arose, in part because of the fact that the Applicant, Ms. Ruth Armstrong, had delayed in bringing a leave to appeal Application. As a result, the Applicant required leave for the late filing of her leave to appeal application.
[19] As a result, on September 21st, 2015, this matter came on before me in Orangeville for an oral hearing. At that time, I granted leave for the late filing of the leave to appeal application on the following terms:
(1) The Applicant shall serve and file all of the materials requires by the Rules within ten (10) days of today’s date, being October 1, 2015.
(2) The Respondent shall serve and file all of their Responding materials within ten (10) days of receiving the Applicant’s materials. Given that the ten days would fall within the Thanksgiving weekend, the Respondent’s materials are due on Tuesday October 13, 2015.
(3) The Applicant shall file any reply materials seven days after the Respondents materials are due, being Tuesday, October 20th, 2015.
(4) The parties are to provide their facta and case books at the time they file their materials.
(5) The Appeal materials must contain everything that the parties are referencing in their appeal. I will not make reference to the continuing record to resolve this issue.
[20] I also noted in my endorsement that the parties were expected to “adhere to the Rules relating to interlocutory appeals to the Divisional Court in the preparation of their materials.”
[21] One of the arguments that the Respondent is making in this case is, in essence, that the Applicant has not complied with either this direction or the Rules of Civil Procedure in the materials that she has placed before the Court.
[22] I start by noting that both sides provided me with their original submissions in accordance with the timetable set out in my September 21st, 2015 endorsement. However, I also confirm that Ms. Hoy, counsel for Ms. Armstrong, did not provide me with any reply submissions, and I have not considered same. I would also note that any reply materials would have been due by October 20th, 2015. Ms. Birchall, the Respondent’s counsel, wrote to advise Ms. Hoy that she had not received any Reply submissions in accordance with the timetable I had set out.
[23] That brings me to the question of whether the Applicant’s materials accord with the Rules of Civil Procedure and my endorsement. I find that they do not in the following respects:
a. Rule 61.03(2)(c) requires the Applicant to serve the relevant transcripts of evidence, and file them with her record. My directions make it clear that the materials filed for me to consider the leave application must be complete. I made it clear to the parties that I would not consider any information outside the materials that they actually filed with me. The transcripts are not included in the compendium that the Applicant’s counsel filed. Indeed, the only piece of information filed about the transcripts was an Order form for them, requesting discs only, and not the actual transcripts, to be delivered by October 15th, 2015, beyond the deadline for the Applicant’s submissions. This request was not even made until September 30th, 2015. Given that the Appellant has alleged bias on the part of Dawson J., the transcripts are clearly relevant to determine whether there is any basis for this allegation. The Applicant’s materials provide no explanation whatsoever for the missing transcripts.
b. Rule 61.03(2)(a)(iv.2) requires the Applicant to include a copy of the reasons for the order or decision from which leave to appeal is sought. Dawson J.’s costs endorsement, (the reasons being appealed from) is not included in the Applicant’s materials.
c. Similarly, Rule 61.03(2)(a)(iv.1) requires the filing of any order or decision that was the subject of the hearing before the court or tribunal from which leave to appeal is being sought. The actual endorsements underlying Dawson J.’s costs decision were not included in the Applicant’s materials. The absence of this material would make it impossible for a reviewing judge to determine whether the costs decision was likely to be wrong, as there would be no context for understanding the basis for Dawson J.’s costs award.
d. There is no actual notice of motion for leave to appeal, contrary to Rule 61.03(1). It was neither served nor filed.
[24] The Applicant’s failures to comply with the Rules and my endorsement could be, in and of themselves, sufficient grounds to dismiss the Applicant’s leave to appeal application. Many of the omissions in the Applicant’s materials could be fatal to her case.
[25] The Respondent’s observation that the Applicant did not properly reference her factum (paragraph 47f of the Respondent’s factum) is also correct. The lack of proper references is more of a substantive issue, in that the Applicant is making assertions that are not supported by the materials before me. I will address that issue below.
[26] I note that the Respondent has filed the missing decisions, which provide me with the necessary context to adjudicate this application. As a result, given the contentiousness of this proceeding, and the allegations made by the Applicant, I will consider the grounds of appeal raised by the Applicant.
Test for Leave to Appeal
[27] The test for granting leave to appeal under the Family Law Rules is the same test as set out in the Rules of Civil Procedure. See, for example Bergen v. Sharpe (2011 ONSC 1930 at paragraph 39). This takes me to Rule 62.02 of the Rules of Civil Procedure.
[28] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
[29] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).
[30] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
[31] In this particular case, the Applicant is arguing that leave to appeal should be granted for the following reasons:
a) There are conflicting decisions at the Supreme Court of Canada;
b) There is good reason to doubt the correctness of the Order of Mr. Justice Dawson and the motion judge’s decision is open to serious debate, for reasons including that the Justice Dawson failed to:
(i) consider the submissions of Ruth Armstrong in their entirety as set forth in his endorsement para * and
(ii) failed to apply the principles of discretion in accordance with the principles regarding costs thereby improperly fettering his discretion and achieving an unjust result.
c) The Motion Judge’s Decision is not well reasoned, and
d) The proposed appeal involves matters of such importance that the appeal should be granted.
[32] I have excerpted these reasons directly from the Applicant’s factum. I will review them generally when I conduct my analysis of each of the tests for leave.
Analysis
a) Rule 62.02(4)(a)
[33] This provision can be very briefly dealt with. In her submissions, counsel for the Applicant states that there are conflicting decisions at the Supreme Court of Canada. However, the Applicant’s counsel has not directed me to these decisions, or explained how there is a conflict in the application of these decisions in this case. As a result, the Applicant cannot establish that her case meets the test for leave to appeal under Rule 62.04(4)(a). There are no conflicting decisions that I have been made aware of.
[34] The Applicant, at paragraph 17 of her factum, states:
The requirement under Rule 62.02(4)(a) of a “conflicting decision” is satisfied by demonstrating a difference in the principles chosen as a guide to the exercise of discretion.
[35] I give no effect to this submission either. The Applicant has not pointed to any “conflicting principles” that the motions judge failed to consider in making his costs award, and the cases that she has cited do not provide any support for her assertion that the motions judge applied conflicting principles, or did so incorrectly.
b) Rule 62.02(4)(b)
[36] Under this part of the test, the Applicant must demonstrate that there is reason to doubt the correctness of the order, and that the issues are important enough that leave to appeal should be granted. The Applicant cannot meet either test on the facts of this case.
[37] The Applicant vigorously argues that she should be given leave to appeal the costs decision of Dawson J. because there is an apprehension of bias on the part of Dawson J. This argument suffers from several flaws, each one of which, taken individually, would likely be fatal to the argument. They are as follows:
a. The Applicant has failed to provide the transcripts from the hearings. As a result, there is no factual basis to conclude that there was any apprehension of bias on the part of the motions judge.
b. The Applicant has failed to provide any specifics about any allegations of bias or a reasonable apprehension of bias. All her counsel says is that “Justice Dawson made disparaging remarks to Ruth Armstrong’s counsel both during this proceeding and on February 2nd, 2015.” She goes on to observe that reply submissions were not permitted from Ruth Armstrong’s counsel. The problems with these statements are legion, including the fact that there are no references whatsoever in the factum to support them. Most significantly, however, the Applicant fails to provide any examples of the “disparaging remarks” that were allegedly made.
c. This brings me to the next issue. If the Applicant were seriously challenging Dawson J.’s impartiality, then she would have appealed his orders on the merits of her motions and of the Respondent’s motions. However, she has not appealed these orders and, for the purposes of this application, must accept his factual findings. Key among those findings is the fact that Ms. Hoy (counsel for the Applicant) changed her position on the undertakings motion several times. This may have prompted a “disparaging remark” from the presiding judge. In this context, such a remark (if it was made, and I have no actual evidence that it was) would not establish bias, or a reasonable apprehension thereof.
[38] The Applicant then argues that the decision of Dawson J. is not well reasoned. The only submission made in support of this position is the Appellant’s assertion that Dawson J. failed to consider specific submissions that the Appellant made. These submissions include allegations that appraisals were duplicated and that there was no evidence from the Respondent that the Applicant had been responsible for the delay in the trial.
[39] This brings me to the last issue, which is that Dawson J. did not consider the submissions of the Applicant on costs. This is an issue that requires some close examination as it might very well engage principles of the fair administration of justice.
[40] I note that Ms. Hoy, counsel for the Applicant submitted her costs argument to the Orangeville Court office by facsimile. It is clear from the transmission sheet that she only sent five pages. Given the length of her submissions, it is clear that proof of service was not sent to the Court office. In addition, the facsimile number that was used was not the number for either judges reception or for the trial coordinator in Orangeville.
[41] The Respondent correctly points out that Dawson J.’s order directed that the submissions were to be sent to him. It is also clear that the Applicant’s counsel, Ms. Hoy, should have been aware from the Respondent’s correspondence that Dawson J. was assigned to Brampton. It was also clear from the correspondence in the file that Ms. Hoy should have been aware of who Dawson J’s assistant is, and how to contact her. As a result, there is some question as to whether these submissions were actually properly sent by the Applicant within the timelines set out in Dawson J’s endorsement.
[42] I also view it as significant that there is no evidence in the materials filed before me about whether these submissions actually made it to the continuing record or that these submissions were actually received by the Court office. I would have expected that counsel for the Applicant would have ascertained this information and placed it before the Court.
[43] However, even if the argument that the submissions were received in time and should have been considered by Dawson J., was accepted, it would still not support granting leave in this case. I am of the view that these submissions (which I have reviewed) would not have materially affected the outcome of Dawson J.’s endorsement.
[44] Having reviewed all of this material, it is clear to me that the decision of Dawson J. was entirely reasonable. Indeed, I would likely have come to a similar conclusion for similar reasons. The context of the costs award is important, and that context is found in the two endorsements of Dawson J. that are not being appealed.
[45] On the Respondent’s motion, the Applicant was found to have deliberately delayed certain valuation activities and needlessly increased the costs to the Respondent. On the Applicant’s motion, the Applicant’s counsel changed her position on undertakings on several occasions, and was almost entirely unsuccessful on her undertakings motion because the undertakings sought had been provided. Some of the undertakings had been provided several times. The Applicant was also unsuccessful in her motion for property and support relief, in part because she had not properly filed a sworn financial statement.
[46] From a procedural point of view, there were also a couple of adjournments. One, which is particularly telling, took place in September of 2014 and was required in part because the Applicant only provided the Respondent with her undertakings chart the morning of the motion. Once these motions proceeded, the argument consumed two full days of court time, and required the preparation and filing of volumes of materials.
[47] An all-inclusive award of $36,912.82 for a matter that had to be adjourned twice, and took two days to argue does not appear to be wrong or unreasonable to me.
[48] In these circumstances, I do not see that there is any real prospect of Dawson J.’s order being found to be wrong. I also do not see any basis to doubt the correctness of that order, especially in light of the fact that costs determinations should only be set aside if the Judge has made an error in principle or if the costs award is plainly wrong (see Bellissimo Excavating Ltd. v. Ding 2004 48691).
[49] Given the confusion over the filing of the Applicant’s submissions, and my conclusions on the likely outcome of this appeal, I also do not see this issue as raising a matter of general or public importance in the administration of justice. As a result, leave to appeal is denied under this section as well.
[50] I also note that it appears to me that the correct forum for raising the fact that Dawson J. did not consider the Applicant’s costs submissions would have been with him. Although this issue was not argued by the parties, Rule 25(19) of the Family Law Rules provide the Court with the ability to change an Order that, inter alia, contains a mistake or that needs to be changed to deal with a matter that was before the court but that it did not decide. On the materials that I have, no steps were taken to ask Dawson J. to reconsider his decision.
Disposition
[51] The Application for Leave to Appeal is dismissed as the tests under Rule 62.02(4)(a) and (b) are not met. However, even if those tests could be met on the facts of this case, I would still have dismissed the Applicant’s application on the basis of the deficiencies set out above.
[52] The Respondent’s costs submissions are due fourteen (14) calendar days from the date of the release of this endorsement, and are not to exceed two (2) double spaced pages, exclusive of a bill of costs and case-law.
[53] The Applicant’s submissions are due fourteen (14) calendar days after the Respondent’s submissions are served on the Applicant’s counsel. These submissions are also not to exceed two (2) double spaced pages, exclusive of a bill of costs and case-law.
[54] There are to be no reply submissions without leave of the Court.
[55] These submissions are to be filed with the Court office in Orangeville. Personal attendance is required to file them so that they are part of the continuing record. In addition, a copy must be provided to my judicial assistant by e-mail. The parties received this endorsement from her by e-mail, so should have her e-mail address.
[56] As a final matter, I do not know whether the costs ordered by Dawson J. have been paid by the Applicant. If they have not been paid, then the Applicant is required to pay those costs to the Respondent within seven (7) days of the date of the release of these reasons.
LeMay, J.
DATE: January 7, 2016
CITATION: Armstrong v. Armstrong, 2016 ONSC 146
COURT FILE NO.: DC-15-106
DATE: 2016 01 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUTH ARMSTRONG v. MORLEY ARMSTRONG
COUNSEL: M. Hoy, Counsel for the Applicant J. Birchall, Counsel for the Respondent
ENDORSEMENT
LEMAY J
DATE: January 7, 2015