- DATE: 20020409 DOCKET:C35156 and C35264
COURT OF APPEAL FOR ONTARIO
RE:
JOSEPH EDWARD MITCHELL (Plaintiff/Defendant by Counterclaim (Appellant)) and PAULA WOODHOUSE (Defendant/Plaintiff by Counterclaim (Respondent))
BEFORE:
CARTHY, WEILER AND MOLDAVER JJ.A.
COUNSEL:
Nigel Schilling, Q.C.
For the appellant
Debra Stephens
For the respondent
HEARD:
April 4, 2002
On appeal from the order of Justice J.H. Jenkins dated September 6, 2000.
E N D O R S E M E N T
APPEAL C35156
- [1] In the particular circumstances of this case, it was within the discretion of the trial judge to abridge the time for serving a notice of motion to strike the statement of claim and to strike the statement of claim. In any event, striking out the statement of claim resulted in no substantial wrong or miscarriage of justice because the only outstanding issue of significance in the claim (an accounting by the defendant) was subsumed in the counterclaim and dealt with by the trial judge. We cannot substitute our discretion for that of the trial judge. Accordingly, we would dismiss the appeal.
APPEAL C35264
[2] With respect to the allegation of bias on the part of the trial judge, the main thrust of the appellant’s argument is that the trial judge precluded him from calling certain witnesses who apparently had relevant evidence to give.
[3] When the record is read as a whole, we are not persuaded that the trial judge prevented the appellant from calling the essential witnesses. In this regard, we note that appellant’s counsel did not attempt to reach the witnesses that he had, on September 7, called off. Instead, acting on instructions from his client, he refused on September 8 to proceed further with the defence of the counterclaim.
[4] As for the other indicia of bias relied upon by the appellant, while we think that some of the trial judge’s remarks were intemperate, when the record is considered as a whole, we are not persuaded that his conduct reached the level of actual or apparent bias. In fairness to the trial judge, his occasional loss of patience is understandable given the unfortunate manner in which the appellant conducted his case.
[5] The only issue in the appeal that gives us concern is whether the trial judge was justified in declaring that a mortgage, registered on title in favour of the appellant’s mother, was not binding on the partnership. The respondent did not raise this issue in her pleadings and at the outset of the trial, counsel for the appellant advised the trial judge that he did not consider it to be an issue. Nonetheless, he indicated that he and counsel retained by the mother planned to monitor the proceeding and if things changed, it was the mother’s intention to seek leave to be added as a party.
[6] By the end of the trial, things had changed. In her closing written submissions, counsel for the respondent sought leave to amend the counterclaim to plead that the mortgage in question constituted a fraudulent conveyance and was thus void.
[7] Counsel for the appellant was well aware of this. At the trial judge’s instance, he was provided with a copy of the respondent’s closing submissions and he was invited to respond if so advised. No response was forthcoming from either the appellant or his mother.
[8] In the circumstances, we find it difficult to believe that the mother did not have notice that her mortgage was at risk. Indeed, we strongly suspect that she had this information but for tactical reasons, decided to do nothing about it. We cannot, however, make that finding on this record. In the circumstances, we are not prepared to reopen the mortgage issue in its entirety. To do so at this stage would be highly unfair and prejudicial to the respondent.
[9] Paragraph 2 of the judgment simply declares that the partnership is not responsible for the mortgage. We are uncertain as to what this means but we are satisfied that the mortgage remains attached to the land. When a sale occurs a vesting order will be required, as indicated in reasons of Klowak J., to lift the mortgage. When the proceeds are paid into court the parties, including the mortgagee and other creditors can bring proceedings to assert or contest rights and priorities, including the validity of the mortgage.
[10] Those proceedings shall be conducted by a judge of the Superior Court other than Justice J.H. Jenkins. Paragraph 8 of the order of Jenkins J. shall be varied accordingly.
[11] Counsel for the appellant conceded that his client has not abided by the judgment under appeal and on that account we might have refused to hear the appeal. In these circumstances we otherwise dismiss this appeal.
Costs
[12] The costs of the two appeals and motion before Catzman J.A. and Osborne J.A. are to the respondents on a partial indemnity basis which we fix as claimed at $11,923.70 for appeal C35264 and $9,878.86 for appeal C35156 both inclusive of fees, disbursements and G.S.T.
“J.J. Carthy J.A.”
“K.M. Weiler J.A.”
“M.J. Moldaver J.A.”