COURT OF APPEAL FOR ONTARIO
CITATION: McDonald v. Robb, 2025 ONCA 71
DATE: 20250128
DOCKET: COA-24-CV-0227
Fairburn A.C.J.O., Copeland and Monahan JJ.A.
BETWEEN
Grace McDonald
Plaintiff (Appellant)
and
Carolyne Robb
Defendant (Respondent)
Ken Wise, for the appellant
Milena Protich, for the respondent
Heard and released orally: January 27, 2025
On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated January 19, 2024.
REASONS FOR DECISION
[1] The underlying action relates to a property dispute. The appellant claims adverse possession in relation to lakefront property. She brought a motion for an interlocutory injunction which was dismissed with costs to be paid to the respondent. The respondent brought a motion to compel the attendance of the appellant at a judgment debtor examination. The appellant then served her own motion, seeking an extension of time to file response materials. Among other things, the respondent then moved to dismiss the action.
[2] There was a scheduling order made in November 2023, making it very clear what the filing deadlines for materials were in relation to the outstanding matters. The appellant entirely disregarded that scheduling order.
[3] The parties appeared before the motion judge on January 19, 2024. The respondent was requesting a timetable be set in relation to the outstanding matters and potentially the assignment of a case management judge. The respondent was not seeking to have the action dismissed that day. No such request was made.
[4] The appellant was asking for an adjournment.
[5] The confirmation of motion forms, along with the transcript of the proceedings, support the conclusion we have reached, most specifically that no one was asking the motions judge to dismiss the action. Nor did the motion judge give any indication during the hearing that he was considering dismissing the action.
[6] The motion judge’s decision was released on the same day that the motion proceeded. He ordered three forms of relief:
that the plaintiff appear at a judgment debtor examination as asked by the defendant;
that the action be dismissed; and
that all other motions be dismissed as moot.
[7] The appellant claims that she was denied procedural fairness as she was caught unaware, not knowing that the motion judge was considering dismissing her claim, or that she was even at risk of this outcome.
[8] In our view, and at a minimum, procedural fairness demanded that the appellant be provided with notice that the motion judge was considering dismissing her claim and that this relief was a possible outcome of the hearing that day. This would have provided her with an opportunity to make submissions on the point.
[9] In contrast, her appearance at a judgment debtor examination had been the subject of previous proceedings and she had already been given ample opportunity to make submissions on this issue. There was no procedural unfairness in relation to this form of relief.
[10] Accordingly, we exercise our jurisdiction pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to hear and dismiss the appeal of the order to attend the judgment debtor examination.
[11] We allow the appeal from the decision to dismiss the action on the basis that it was procedurally unfair. Therefore, we order that the second and third forms of relief granted below, the order dismissing the action and the order dismissing all other motions as moot, be set aside.
[12] In light of the history of this matter, the Superior Court of Justice may wish to consider taking steps to have the motion to dismiss the claim heard on an expedited basis.
[13] The costs order from below is set aside and no costs of that proceeding will be ordered. There will be no costs ordered for today’s appearance.
“Fairburn A.C.J.O.”
“J. Copeland J.A.” “P.J. Monahan J.A.”