Court File and Parties

CITATION: McCain v. Melanson, 2017 ONSC 2266

DIVISIONAL COURT FILE NO.: DC-17-149-00ML

DATE: 2017-04-12

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Eleanor Marie Norrie McCain, Applicant (Moving Party)

AND:

Jeffrey James Melanson, Respondent (Responding Party)

BEFORE: Regional Senior Justice Morawetz

COUNSEL: Don Jack and Jacqueline Mills, for the Applicant

Harold Niman and Richard Niman, for the Respondent

HEARD at Toronto: April 10, 2017

ENDORSEMENT

[1] On April 10, 2017, the Record was endorsed: “Motion dismissed with costs to Respondent in the agreed upon amount of $5,000. Reasons will follow tomorrow”.

[2] The Applicant brings this motion for an order staying the decision of Horkins J., dated March 22, 2017, relating to the Applicant’s motion to vary a timetable imposed by Horkins J. (the “March 22 Order”), pending the determination of a motion for leave to appeal the March 22 Order (the “Leave Motion”). In conjunction with, or as an alternative to this requested relief, the Applicant seeks an order that the hearing of the Leave Motion be expedited.

[3] For reasons which follow, the motion is dismissed.

[4] The March 22 Order arose as a result of Ms. McCain’s failure to comply with the timetable set out in a previous endorsement of Horkins J. dated February 9, 2017 which was a decision that resulted from a request of the Respondent for interim costs in the amount of $125,000 (the “Interim Costs Endorsement”). No steps were taken to appeal this decision.

[5] In the Interim Costs Endorsement, Horkins J. also referenced the Family Law Rules 2(2) which states that the primary objective of the Rules “is to enable the court to deal with cases justly”. She also referenced Rule 2(3) which states:

Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[6] After referencing Rule 2(4) and 2(5), Horkins J. ordered that the parties shall immediately agree to a timetable to complete questioning and a date to conduct a settlement conference. The settlement conference is to be heard by Harvison Young J. or Stevenson J. The questioning and settlement conference was ordered to be completed by June 23, 2017 and the timetable was to have been filed with the court no later than February 24, 2017. Horkins J. also ordered that the final hearing should be completed by the end of 2017.

[7] The March 22, 2017 endorsement of Horkins J. is also instructive. Specifically, Horkins J. noted the following:

1. Ms. McCain did not seek leave to appeal the Interim Costs Endorsement (para. 4);

2. Ms. McCain commenced this application on March 2, 2016 and since then she has done very little to move her application ahead (para. 5);

3. On October 31, 2016, Kiteley J. ordered, on consent, that the parties would be permitted to question each other in the application. The parties were ordered to attend questioning on dates to be agreed for 2 – 3 days each (not to exceed 18 hours each) but no steps were taken to schedule this questioning until ordered by Horkins J. in the Interim Costs Endorsement (para. 8);

4. On January 19, 2017, Horkins J. found that the Applicant had not complied with the timetable set by Kiteley J. (para. 9);

5. After release of the Interim Costs Endorsement, counsel corresponded about the timetable ordered by Horkins J. A conference call took place on February 23, 2017. Before the call took place, counsel had not exchanged any dates for questioning (paras. 11-14);

6. During the conference call, Ms. Mills advised Mr. Niman, for the first time, that Ms. McCain could not conduct the questioning and settlement conference by June 23, 2017. In a letter sent the following day, Ms. Mills explained that the Applicant could not comply with the June 23, 2017 deadline because she has been “working on the Canadian Songbook Project for three years, culminating in the release of the album and the book. Between now and July 1, Ms. McCain is extremely busy with concerts, meetings and rehearsals in order to meet the deadline and complete the project.” (paras. 15-16);

7. Ms. Mills proposed a date be set for September 2017. On March 3, 2017, Mr. Niman served Ms. Mills with a Notice of Questioning of Ms. McCain set for May 3 and 4, 2017. He also suggested June 12, 16 or 19, 2017 for a settlement conference (paras. 17-19);

8. On March 6, 2017, Ms. Mills advised the court that a motion was required to address her client’s request to amend the court ordered timetable. Ms. McCain filed an affidavit describing the nature of her involvement in the Project called “True North: The Canadian Songbook”. Ms. McCain explained that this has been a “hands-on” project for her and that May is the busiest part of the release of the project (paras. 20-22); and

9. In addition to her project, Ms. McCain stated that she could not attend questioning until September 2017 because she has been diagnosed with chronic fatigue syndrome. A letter from her physician, Dr. Fred Hui, was attached to her affidavit (para. 23).

10. Justice Horkins accepted that the True North: The Canadian Songbook project (the “Project”) is important to Ms. McCain. However, Horkins J. did not accept that Ms. McCain was unable to comply with the February 9, 2017 order (para. 25).

[8] Justice Horkins provided detailed reasons at paragraphs 26 - 39 and in her summary, at paragraph 40, dismissed Ms. McCain’s motion to vary the timetable.

[9] Justice Horkins ordered that Ms. McCain attend for the questioning on May 3 and 4, 2017 and that the settlement conference take place on June 12, 2017 before Harvison Young J.

[10] Pursuant to Rule 63.02(1)(b) of the Rules of Civil Procedure, an interlocutory order may be stayed on such terms as are just by an order of a judge of the court to which the motion for leave to appeal has been made.

[11] The parties agree that the test for a stay pending the determination on a motion for leave to appeal pursuant to Rule 63.02(1)(b) accords with the principles set out by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney-General) (1994), 1 S.C.R. 311:

1. The moving party must demonstrate her or his pending appeal raises a serious issue to be tried;

2. She or he will suffer irreparable harm if the stay is not granted; and

3. The balance of convenience favours the granting of a stay of the order under appeal.

[12] Counsel to Ms. McCain submits that the pending leave motion raises a serious issue to be heard. Counsel submits that the adjournment of the questioning and the settlement conference is necessary in order to provide Ms. McCain with an opportunity to properly prepare and present her case. Further, the authorities state that the right to know the case be met, the right to examine the opponent, and the right to an adjournment to properly prepare and present a case are all important elements of natural justice. Counsel submits that these are fundamental principles associated with the administration of justice and civil procedure, and that these principles were not reflected in the decision of Horkins J.

[13] Counsel to Ms. McCain further submits in her Notice of Motion for Leave to Appeal, that the decision of Horkins J. conflicts in principle with other decisions of the Ontario Superior Court of Justice and the Court of Appeal for Ontario relating to the guiding principles to be considered on a motion for an adjournment. These cases include Khimji v. Dahani; 2004 CarswellOnt 524 (C.A.); Trade Capital Finance Corp. v. Cook, 2016 ONSC 3511; Ariston Realty Corp. v. Elcarin Inc. 2007 CarswellOnt 2371 (Sup. Ct.); and Davis v. Davis, 2017 CarswellOnt 1024 (Sup. Ct.).

[14] I do not accept these submissions.

[15] The order that is the subject of this motion is a timetable order. Horkins J. exercised her discretion, taking into account a number of factors, including the length of time that the proceedings have been ongoing, the conduct of the Applicant, including findings of delay, and the applicable provisions of Family Law Rules. In addition, Horkins J. was clearly aware of Ms. McCain’s involvement in the Project as well as her medical issues.

[16] With respect to the case law referred to by counsel to the Applicant, these cases involve the granting of an adjournment. In my view, a distinction must be drawn between an adjournment request and an appeal from a timetable order. A timetable order does not deprive a litigant from having their day in court. Rather, a timetable order schedules the litigant’s day in court.

[17] In my view, the decision of Horkins J. is not in conflict with other decisions on the matter involved on this pending appeal. It was a decision based on discretion and, on the face of the record, it was open to Horkins J. to arrive at the conclusion that she did. Further, in my view, there is no good reason to doubt the correctness of the order in question.

[18] As such, I conclude that Ms. McCain has not demonstrated that her pending appeal raises a serious issue to be tried. This finding is sufficient to determine this motion.

[19] In addition, I have not been satisfied that Ms. McCain will suffer irreparable harm if the stay is not granted. It cannot be overlooked that the deadline of June 23, 2017 for the questioning and the settlement conference to be completed was set by Horkins J. on February 9, 2017. In the past two months, Ms. McCain could have taken steps to further these proceedings. Instead, Ms. McCain chose to move to vary the timetable and then chose to the Leave to Appeal route. It is not open, in my view, for Ms. McCain to argue that she will suffer irreparable harm from a situation that she created. Ms. McCain can address any issue of harm by complying with the timetable.

[20] Finally, on the subject of balance of convenience, I have not been satisfied that Ms. McCain has established that she is incapable of attending her questioning or the settlement conference. I also have to take into account that the record establishes that further delay of the application is prejudicial to Mr. Melanson (para. 38, March 22, 2017 endorsement).

[21] In summary, the decision of Horkins J. is discretionary in nature. Horkins J. was aware of and took into account all of the surrounding circumstances. Her conclusion is entitled to deference.

[22] Ms. McCain has not satisfied the test for a stay pending the determination on the motion for leave to appeal.

[23] The motion is dismissed with costs payable to the Respondent in the agreed upon amount of $5,000 inclusive of disbursements and applicable taxes.

Regional Senior Justice G.B. Morawetz

Date: April 12, 2017