CITATION: Abrams v. Abrams, et al., 2010 ONSC 4714
COURT FILE NO.: 03-003/08
DIVISIONAL COURT FILE NO.: 337/10
DATE: 20100830
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STEPHEN ABRAMS
Plaintiff (Applicant)
– and –
IDA ABRAMS, JUDITH ABRAMS, PHILIP ABRAMS and THE PUBLIC GUARDIAN AND TRUSTEE
Defendants (Respondents)
Murray Teitel, Counsel for the Plaintiff (Applicant)
Eric Hoffstein, Counsel for the Defendant Philip Abrams
Richard B. Swan, Counsel for the Defendant Dr. Judith Abrams
HEARD at Toronto: August 23, 2010
ENDORSEMENT
Ferrier J.:
[1] The Applicant seeks an extension of time to seek leave to appeal the order of D. Brown J. dated March 1, 2010, and leave to appeal that order and the order of D. Brown J. dated May 10, 2010. The Respondents filed factums but did not oppose the relief sought.
[2] Accordingly I granted the applicant the extension of time requested.
[3] The guardianship application was commenced 2½ years ago. As noted by D. Brown J., at the time he dealt with the matter, the record shows 24 endorsements by this Court, or at the time, an average of one court attendance per month throughout.
[4] D. Brown J. was asked by the Applicant on November 9, 2009 to case manage the proceeding and D. Brown J. has done so since.
[5] On December 19, 2008, Strathy J. had ordered the trial of various issues, essentially concerning whether Ida Abrams had and continues to have capacity to give powers of attorney for property and for personal care; and whether powers of attorney signed by her were signed as a result of undue influence or fraudulent misrepresentations.
[6] Furthermore, Strathy J. gave extensive and specific directions, including time lines for various steps.
[7] The reasons of D. Brown J. detail the course of those proceedings, including the dilatory conduct of all parties. Strathy J.’s directions still had not been complied with a year after his order.
[8] It seems it was readily apparent to the Applicant and to D. Brown J., and to the Respondents that case management was required.
[9] The full details of the course of this proceeding are contained in the reasons of D. Brown J.
[10] The applicant now complains about the orders made by D. Brown J., and despite the fact that he participated in numerous case management conferences, claims D. Brown J. had no jurisdiction to so case manage the proceeding.
[11] The applicant is seeking leave to appeal from the following paragraphs of the Order of D. Brown J. dated March 1, 2010:
Paragraph 1(a):
Justice D.M. Brown will continue to act as the case management judge and also deal with all pre-hearing matters.
Paragraph 1(e):
Prior to April 8, 2010 counsel shall co-operate and shall prepare a plan to adjudicate the ordered trial of issues in accordance with the following parameters:
i. The trial of issues shall be completed within three (3) days;
ii. Justice D.M. Brown is targeting September 27, 28 and 29, 2010 for the hearing of the trial of issues:
iii. The trial will be a hybrid one, primarily relying on filed affidavits for a witness’ evidence-in-chief, with latitude to conduct up to 30 minutes additional examination-in-chief of each party witness. Cross-examinations of each party witness shall not exceed 3 hours in length;
iv. The parties shall file comprehensive document briefs, factums and briefs of authorities in advance of the hearing;
v. All parties wish to bring refusals motions. Justice D.M. Brown shall hear them by way of motions in writing. The parties shall develop a timetable under which they file with Justice D.M. Brown’s office lists of all refusals in issue using the standard master’s chart format for refusals, together with relevant transcript extracts. Justice D.M. Brown will review the lists and consider whether he may require further submissions on any particular group of refusals;
vi. Parties shall prepare lists of any portions of pleadings or affidavits to which they object. Justice D.M. Brown will consider whether any merit exists in dealing with such complaints prior to the trial, or whether the presiding judge should simply be given a list in advance of those portions of affidavits to which the parties take exception. Decisions of admissibility will lie primarily in the hands of the trial judge.
Paragraph 1(f):
Following the hearing on April 8, 2010 Justice D.M. Brown will finalize a plan dealing with all remaining pre-trial matters and will fix the trail date which will be peremptory to all parties.
[12] The applicant is also seeking leave to appeal from the following paragraphs of the Order of D. Brown J. dated May 10, 2010:
Paragraph 5:
THIS COURT DIRECTS that if no appeal is taken from the March 1, 2010 endorsement of Justice D.M. Brown, or this Order, counsel are expected to appear before Justice D.M. Brown on June 16 with an agreed upon “plan to adjudicate the ordered trial of issues” in accordance with the parameters in paragraph 36(c) of the March 1, 2010 endorsement of Justice D.M. Brown.
Paragraph 6:
THIS COURT DIRECTS that until the parties appear before Justice D.M. Brown with an agreed upon “plan to adjudicate the ordered trial of issues”, no further step may be taken in this proceedings without leave of Justice D.M. Brown or leave of an appellate court.
[13] Each paragraph above shall have to be considered under Rule 62.02(4), but the applicant’s overall position is that there is no inherent jurisdiction for a judge to case manage an estate matter. Shortly put, the applicant references all the specific rules and practice directions concerning case management, finds no reference to specific case management power, and argues that inherent jurisdiction cannot be involved when there is in effect no gap in the rules and the subject is specifically dealt with.
[14] Thus, argues the applicant, the decisions of D. Brown J. are wrong in law and it is important to the administration of justice that leave be granted.
[15] D. Brown J. dealt extensively with the power of the Court to control its own process as part of its inherent jurisdiction.
[16] I add the following observations Lord Roskill, in the House of Lords, in Ashmore et al. v. Corporation of Lloyd’s 1992 The Weekly Law Reports 446 at p. 448 (also reported at [1992] 2 ALL E.R. 486:
The Court of Appeal appear to have taken the view that the plaintiffs were entitled of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been adduced. With great respect, like my noble and learned friend, I emphatically disagree. In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.
[17] To that I would add that the Court controls the process throughout, not only at the trial stage, subject only to the Rules and statutory provisions.
[18] Thus, I do not agree that D. Brown J. erred in the question of inherent jurisdiction. Even were I to agree that the issue was open to serious debate, on this record I am not of the view that it is important to the administration of justice: Ida Abrams guardianship has been in limbo for 2½ years. To the extent considered necessary, a trial judge may depart from the regime put in place by the case management judge.
[19] Thus the applicant fails on Rule 62.02(4)(b).
[20] For the same reasons, I am not of the view that it is desirable that leave be granted. Accordingly the applicant fails on sub-para. (a) of the Rule.
[21] I then turn to the specific paragraphs of the orders. First, the March 1, 2010 order:
1(a) a careful reading of the decision shows that D. Brown J. criticizes both sides, albeit more the applicant. I see no reason to conclude that the test in either sub (a) or (b) of Rule 62.02(4) has been met.
1(e)
(i) Completing a trial of this nature within 3 days even with the requirements for affidavit evidence would seem to be unrealistic – but I am not the case management judge. D. Brown J. (and Strathy J. before him) is more familiar with what the real issues are. In any event, the trial judge will have the power to depart from this restriction. Neither branch of Rule 62.02(4) is satisfied.
(ii) A “targeted” trial date does not mean that date has been fixed by the Court. The Rule 62.02(4) tests are not satisfied.
(iii) The parties are required to prepare their case for trial in accordance with this order. This is all part of the Court’s power to control the process. In any event, the trial judge has the power to alter the ultimate trial process. The Rule 62.02(4) tests are not satisfied.
(iv) I fail to see how it can be suggested that this order is wrong or arguably wrong; no conflicting authorities exist. Rule 62.02(4) is not satisfied.
(v) The applicant argues that there is an absolute right to present oral argument on a motion. No authority or rule is cited for that proposition. No conflicting authorities are cited. The tests in Rule 62.02(4) are not satisfied.
(vi) The same comments as in (v) apply.
1(f) This is what case management is all about. Clearly the Court has this power. This is exactly what this case needs.
Order of May 10, 2010
Paragraphs 5 and 6
[22] This is case management. The Court has the inherent power to make such orders. I do not agree that there are conflicting decisions. I do not agree that there is reason to doubt the correctness of the order. The Rule 62.02(4) tests have not been met.
[23] Accordingly, motion for leave is dismissed.
[24] No order as to costs.
Ferrier J.
Released:
CITATION: Abrams v. Abrams, et al., 2010 ONSC 4714
COURT FILE NO.: 03-003/08
DIVISIONAL COURT FILE NO.: 337/10
DATE: 20100830
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STEPHEN ABRAMS
Plaintiff (Applicant)
– and –
IDA ABRAMS, JUDITH ABRAMS, PHILIP ABRAMS and THE PUBLIC GUARDIAN AND TRUSTEE
Defendants (Respondents)
ENDORSEMENT
Ferrier J.
Released: August 30, 2010