CITATION: P.Z v. G.B., 2016 ONSC 7298

DIVISIONAL COURT FILE NO.: 427/16

DATE: 20161124

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: P.Z., Applicant/Moving Party

AND:

G.B., Respondent/Responding Party

BEFORE: L. A. Pattillo J.

COUNSEL: Eric Shapiro, for the Applicant

Erin K. Crawford, for the Respondent

HEARD: In writing

ENDORSEMENT

Introduction

[1] The Applicant, P.Z., seeks leave to appeal from the Order of Myers J. (the “Motion Judge”) dated August 16, 2016 (the “Temporary Order”). The Temporary Order gives the Respondent carriage of the sale of the former matrimonial home (the “Property”) including providing for the real estate agent, the dispensing of the Applicant’s signature and giving all authority to the Respondent to execute all listing and closing documents.

[2] The Applicant and G.B. (the “Respondent”) separated in August 2012. They resolved all outstanding matters between them in accordance with the Order of Myers J. dated January 25, 2016 (the “Final Order”). Paragraph 22 of the Final Order provided that all of the parties’ prior written and verbal agreements were terminated with the exception of the parties’ Interim Separation Agreement dated April 16, 2015 (“Interim Agreement”).

[3] At the time of separation, the parties were constructing a new home separate from the Property. Part of the resolution of their issues involved the new home being transferred to the Applicant, the Property being sold and one-half of the net proceeds of the sale being paid to the Respondent.

[4] The Interim Agreement dealt in part with the sale of the Property. Paragraph 13 provided that the Property would be listed for sale with an agent agreeable to both parties acting reasonably and based on the recommendations of the listing agent within 30 days after the Applicant received a confirmed Project In Use Date from the builder of the new home. It further stated: “Unless otherwise agreed to by P.Z. and G.B., the closing date for the sale shall occur within 90 days of the date on which a binding agreement of purchase and sale is signed by the parties and a bona fide purchaser or 30 days of the Project In Use Date, whichever is the later date but in any case no later than June 30, 2016.”

[5] Although the parties engaged in discussions in the spring of 2016 concerning the sale of the Property, it was not sold by June 30, 2016. In the absence of the parties agreeing on the sale, on July 15, 2016 the Respondent brought a motion returnable July 26, 2016 for an order giving him carriage of the sale of the Property. The motion was supported by an affidavit from a law clerk in the law firm of counsel for the Respondent. The motion date was subsequently set for August 16, 2016, which was the earliest date available to accommodate the Applicant’s then counsel.

[6] On August 11, 2016, the Applicant’s counsel was removed as solicitor of record. On the same day, Mr. Shapiro, the Applicant’s current counsel, was retained. Mr. Shapiro was the eighth counsel to represent the Applicant in the proceedings. Mr. Shapiro contacted Respondent’s counsel and requested an adjournment of the motion in order to file responding material. The request was denied.

[7] On August 16, 2016, the Respondents motion came before the Motion Judge. At the outset, the Applicant requested an adjournment of the motion to deliver material concerning some elements of the relief sought. The Motion Judge refused the adjournment. In a brief endorsement he noted that the Applicant’s seventh counsel was removed from the record in the previous week. He stated that sales of houses are routine and that the Applicant had a month to respond to the motion. He did not accept that the Applicant’s involvement with her daughter’s sports training to be a sufficient excuse for not responding. He referred to the Applicant’s intention to delay the sale. He further noted that the order for the sale was made on consent and the Applicant had five months to respond to any concerns regarding the sale.

[8] In granting the Temporary Order, the Motion Judge, again in a brief endorsement, addressed the issues raised by the Applicant including that it was premature to remove the Applicant from the sales process; that she preferred a different agent than the one proposed by the Respondent and that she did not want the Property staged. Noting the Applicant’s efforts to delay the implementation of a sale, the Motion Judge disagreed that it was premature to remove her from the sales process. He stated that the question of whether there should be staging should be determined in the real estate agent’s professional opinion rather than being left to be resolved in another court proceeding. He limited the costs of staging to $20,000 inclusive of HST and ordered that the Applicant who was responsible for the wear and tear of the Property should be responsible for such costs. Finally, he declined the offer of Applicant’s counsel to work with the Applicant to move forward with the sale based on her history of terminating counsel’s retainers.

Test for Leave to Appeal

[9] 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.

[10] 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.).

[11] 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.).

Analysis

[12] In my view, the Applicant has failed to meet the test for leave to appeal under r. 62.04. The Applicant does not rely on r. 64.02(4)(a) nor is it applicable given the provisions of the Temporary Order. There are no conflicting decisions. In respect of r. 64.02(4)(b), I am not satisfied that the proposed appeal raises a matter of such importance that it transcends the private interests of the parties. The Temporary Order is based on particular findings of the Motion Judge and do not raise any issues of law of general significance or sufficient importance to justify granting leave. Simply put, the issues raised are relevant only to the parties.

[13] Further, having regard to the background of the dispute and the evidence before the Motion Judge, I am also of the view that there is no reason to doubt the correctness of the Temporary Order. The Applicant has raised a number of issues in respect of the Temporary Order, including reliance on information that was subject to settlement privilege; an error in the interpretation of the Interim Agreement; ordering staging in the absence of evidence it was required and fixing the Applicant with costs; and providing inadequate reasons.

[14] Having reviewed the record and the factums, I do not consider that any of the grounds raised by the Applicant have any merit. I do not consider that the information before the Motion Judge was subject to settlement privilege or that he relied on any improper information in reaching his decision. Nor did the Applicant’s counsel object to any of the information before the Motion Judge. Further, I do not consider that the Motion Judge erred in his interpretation of paragraph 13 of the Interim Agreement. The parties agreed that the sale of the Property would be completed “in any case no later than June 30, 2016.” I also do not consider that the order for staging and its costs was made in a vacuum. The Respondent had not lived in the Property for four years. The Motion Judge left the question of whether staging was required and if so, its extent to the real estate agent chosen by the Respondent who has extensive experience in the sale of homes in the Lawrence Park area. That was a practical resolution to the issue rather than incur further court time. Further, as noted by the Motion Judge, it is the Applicant who has been living in the Property for the last four years. If staging is required, it is reasonable for the Applicant to bear the cost. Finally, while the reasons were handwritten and brief, they were more than adequate to explain why the Motion Judge made the order he did.

[15] There is a further ground which has been raised by the Applicant which deserves more detailed comment. The Applicant has alleged a reasonable apprehension of bias on the part of the Motion Judge which is a very serious allegation.

[16] There is no transcript of the proceeding before the Motion Judge. Mr. Shapiro has filed his affidavit providing his recollection of what occurred. Respondent’s counsel does not object to its admission. Mr. Shapiro’s affidavit essentially sets out the arguments he made before the Motion Judge both in respect of the adjournment request and the Respondent’s motion. The Motion Judge addressed those submissions in his endorsements.

[17] Mr. Shapiro’s affidavit further indicates that in response to his request for an adjournment, the Motion Judge raised the number of lawyers the Applicant had before him and that on more than one occasion during the hearing he remarked that Mr. Shapiro would soon be replaced by another lawyer.

[18] The test as to whether a reasonable apprehension of bias exists is an objective one. The question to be answered is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, having thought the matter through, conclude? Would he or she think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly? See: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 at para. 58; Kingdom v. Kramer, 2015 ONSC 397 at para. 10.

[19] It is also important when considering the issue in this case to view what occurred within the framework of the Family Law Rules. As stated by Trimble J. in Kingdom v. Kramer at para. 10(j):

This is even more important in family matters where the primary objective under Family Law Rule 2(2) requires the Court to deal with matters “justly”. “Justly”, is defined in Rule 2(3). Unlike in regular litigation, the Family Law Rules provide the Court with great latitude in how to adjudicate fairly. Unrequested orders may be made. The Legislature intended that Judges should treat family matters differently in order to obtain fair, expeditious and cost effective resolution, requiring that the Judge keep in mind the apportionment of scarce resources over all cases. Judges are required to give an individual case the attention it deserves, relative to other cases. [Internal citations omitted].

[20] Having regard to the circumstances of the litigation, the record that was before the Motion Judge and his reasons for the Temporary Order, I have no hesitation in concluding that an informed, reasonable and right-minded person, viewing the matter realistically and practically would conclude that he decided the matter fairly, particularly in the context of the Family Law Rules.

[21] The Motion Judge was not new to this matter. He issued the Final Order. Further, it was clear from the record before the Motion Judge that the Applicant had seven previous lawyers on the file, the last one up until a week prior to the motion. His comments about the possibility of counsel being replaced were based on the Applicant’s long-standing and established pattern of changing counsel, often on the eve of hearing dates, causing delay and expense. Nor can there be any issue that the Applicant was seeking to delay the sale of the Property.

[22] The Applicant’s documented history of delay and poor behaviour coupled with the position being taken by her on the motion attracted the Motion Judge’s disfavour. Such disfavour, however, does not amount to judicial bias. See: Horzempa v. Ablett, 2011 ONCA 633 at para. 9.

[23] The Applicant’s motion for leave to appeal is dismissed.

[24] The Respondent is entitled to his costs of the motion. As is apparent from my reasons, the Applicant’s motion has no merit. Further, given the history, there is no question in my mind that it was brought for one reason only, to delay the sale of the Property. Given the time it has taken to have this motion heard that goal has been accomplished. In the circumstances, an order for substantial indemnity costs is appropriate.

[25] The hours set out in the Respondent’s Bill of Costs are reasonable having regard to the issues. The fees claimed are based on the actual hourly rate as opposed to the substantial indemnity rate which is 90% of actual.

[26] Costs to the Respondent on a substantial indemnity basis, fixed at $7,500 in total.

L. A. Pattillo J.

Date of Release: November 24, 2016