Court File and Parties

COURT FILE NO.: 25884/12 DATE: 2012-11-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ken Miller and Karen McAndrew Applicants

– and –

Young Men’s Christian Association of Sault Ste. Marie, The Rotary Club of Sault Ste. Marie and The Public Guardian and Trustee Respondents

Counsel: Ian M. Hull, for the Applicants (not present at the hearing of this motion) Milton A. Davis, for the Respondents, Young Men’s Christian Association of Sault Ste. Marie and The Rotary Club of Sault Ste. Marie; Dana De Sante for the Public Guardian and Trustee;

Francis Sewards, Moving Party

Francis Sewards, representing herself

HEARD: October 25, 2012

BEFORE: E.J. Koke J.

Decision on Motion to Intervene

[1] This motion is brought by the moving party, Francis Sewards (Ms. Sewards) for an order granting her intervenor status as a party or, in the alternative as a friend of the court with respect to this application. All parties to the application oppose the motion.

Nature and Background of the Litigation

[2] This proceeding was commenced by Notice of Application issued by Ken Miller and Karen McAndrew on July 13, 2012 pursuant to Section 10 of the Charities Accounting Act.[^1]

[3] The application sought to determine, inter alia, the legal status of a parcel of land municipally known as 18 McPhail Avenue, Sault Ste. Marie, Ontario (the "property").

[4] The property is operated as the "Rotary - Y.M.CA. Tennis and Aquatic Club"("RYTAC"). The RYTAC property sits on the waterfront on the St. Mary's River in Sault Ste. Marie, Ontario.

[5] The property has four tennis courts at its north end. They are operated and maintained by the YMCA. The southwest waterfront side has two more tennis courts, and two beach volleyball courts. On the south end, there is a dock and boathouse/clubhouse that services RYTAC's water-based activities.

[6] Before 1969, the property was owned by the St. Mary's River Boat Club ("SMRBC"), which had acquired the property by way of a claim for adverse possession. After a fire destroyed the clubhouse on the property, the SMRBC Trustees chose to convey the property to the YMCA, with a reversionary interest to the Rotary Club. Two documents were created:

a. The March 4, 1969 Agreement to Convey between the Rotary Club, the YMCA and the SMRBC Trustees; and

b. The June 19, 1969 Conveyance between the SMRBC Trustees, the YMCA, the Rotary Club and G. Harold Tolley.

[7] Following its acquisition of the property in 1969, the YMCA provided lessons in tennis and various aquatic sports and conducted summer camps at RYTAC during the summer months.

[8] Although RYTAC was operated as a stand-alone operation, user fees did not cover its operating costs and it regularly required financial support and subsidies from the YMCA.

[9] Over the years, support by members of the community and participation in RYTAC’s programs gradually decreased. RYTAC required increasing financial support from the YMCA.

[10] Along with the decline in support and revenue, the RTYAC property fell into a state of disrepair. The boathouse/clubhouse deteriorated to the point where it could no longer be used and required replacement.

[11] As early as 1994, the YMCA formed a committee to review the financial viability of RYTAC, and strategize how to grow its membership. The resulting plan, which included day camps, marketing and donation drives did not result in a material change to RYTAC’s financial viability. Another committee, which included members of RYTAC, was struck for the same purpose in 2004 but RYTAC continued to struggle.

[12] At a board meeting held in December, 2009, the directors of the YMCA voted to cease operation of the RYTAC facility at the close of the 2010 summer program.

[13] In the spring of 2010 the YMCA made a decision to keep the facility open for the 2010 summer and formed another committee to review RYTAC’s finances. The committee concluded that RYTAC was not financially viable and that it would be in the YMCA’s best interests to stop operating RYTAC.

[14] The directors of the YMCA then met with the leadership of the Rotary Club in 2011 to discuss RYTAC and both organizations agreed that the program was no longer financially viable and it could not be sustained given the serious challenges it faced. Accordingly, a decision was made not to conduct programs on the property the following year.

[15] In the summer of 2012 the YMCA summer camps and aquatic programs were moved to Camp Korah, in the northwest corner of Sault Ste. Marie on Nettleton Lake. It is the view of the YMCA that for program purposes the Nettleton Lake location is a superior venue than the RYTAC property on the St. Mary’s river. Also, the Camp Korah program has greater financial viability because the cost of owning, maintaining and insuring the property, which was required at RYTAC, is not a factor.

[16] The tennis program was also terminated in 2012 and the property was locked to the public. This decision generated considerable publicity in the local media, and considerable unhappiness among former tennis club members and local tennis players.

[17] The YMCA and the Rotary Club made a decision to sell the property in early 2012. In June, 2012 the property was listed for sale for $990,000.00, with an agreement between the YMCA and the Rotary Club that the proceeds of sale would be split equally between the Rotary Club and the YMCA. The YMCA agreed to apply its share of the proceeds from the sale, in part, to offer financial assistance for members of the Sault Ste. Marie community who cannot otherwise afford a YMCA membership and the Rotary Club decided to use its share of the proceeds to support the Children’s Rehabilitation Center of Algoma, which provides services to handicapped children.

The Application

[18] Following the decision to sell the property, the applicants brought this application on July 13, 2012. The applicants requested an interim injunction restraining the YMCA and the Rotary Club from selling the property.

[19] The applicant, Kenneth Miller, is the son of the late Kenneth G. Miller who was a former member and trustee of the St. Mary’s River Boat Club which had deeded the property to the YMCA in 1969. Karen McAndrew is the daughter of the late Russell Ramsay who was also a former member and trustee of the Club and one of the original granters to the YMCA.

[20] In their application materials the applicants questioned whether the YMCA had fulfilled its obligation to use its “best efforts” to continue the aquatic and tennis programs on the site, which was set out as a condition of the 1969 deed. They argued that there were many people in the community who wanted the summer programs to continue. They advised that a Citizens’ Committee had been formed to represent the concerns of the public and that over 300 people had responded to ads requesting signatures for a petition. They also accused the YMCA and Rotary Club of having failed to consult or communicate with the public in any meaningful way before taking steps to close the property and list it for sale.

[21] The legal issues which the applicants raised included the following:

a. Whether the YMCA held the property as a charitable purpose trust and the effect of the Charities Accounting Act, R.S.O. 1980, c.65 as amended on the intended sale of the RYTAC property;

b. The interpretation of the 1969 agreement and deed which conveyed the property from the SMRBC to the YMCA, and whether the reversionary interest of the Rotary Club had been extinguished by operation of the perpetuities law;

c. Whether the court should apply the cy-pres doctrine and allow the property to be sold, with the proceeds going to sanctioned purposes.

[22] The applicants included The Public Guardian and Trustee as a party, pursuant to Section 10 of the Charities Accounting Act.

Steps taken following the commencement of the Application

[23] On July 19, 2012 the parties consented to an interim injunction, pursuant to which the YMCA agreed to refrain from selling the property pending a hearing of the motion for an interim injunction.

[24] Cross-examinations of the parties or their representatives were conducted on September 24, 2012 and a date for the hearing of the motion for an injunction was scheduled for October 4, 2012.

[25] On October 4, 2012 the parties attended at the court and advised the court that they wished to adjourn the hearing. They stated that they were very close to resolving all issues and were in the process preparing minutes of settlement and an order to be signed by the court approving the settlement. An adjournment was granted to October 25, 2012.

[26] Ms. Sewards also attended at court on October 4, 2012 and she advised the court that she had filed a motion to intervene in the application the previous day. She delivered an affidavit in support of her application to the court. Her motion was scheduled to be heard on October 25, 2012.

[27] Following the October 4, 2012 court attendance the parties to the action served and filed materials in response to Ms. Sewards’ motion.

[28] On October 25, 2012 the parties to the application attended at court and advised the court that they had resolved all issues and they filed minutes of settlement and a draft order for consideration by the court. Thereafter the parties argued Ms. Sewards’ intervenor motion.

The Settlement

[29] The minutes of Settlement filed with the court reveal that the parties have settled the litigation on terms whereby the proceeds from the sale of the land, after payment of legal costs, will be divided as follows:

i. One third to the YMCA to be held in trust and applied to the YMCA’s summer children’s programs;

ii. One third to the YMCA to be used as it so decides in its unfettered discretion;

iii. One third to the Rotary Club, to be held in trust and to be applied exclusively for the benefit of the Children’s Rehabilitation Centre-Algoma Foundation.

Affidavit evidence filed by Ms. Sewards in support of her Motion to Intervene

[30] Ms. Sewards has been a resident of Sault Ste. Marie since 1972. Two of her children learned to sail and play tennis through the RYTAC program and she herself played tennis and was a member of RYTAC until the last 3 or 4 years. In 2004 she and her husband moved into a property which is several doors away from the RYTAC property.

[31] Ms. Sewards became concerned about the deterioration of the RYTAC property and decline in enrolment to what she believes was only 8 paid up members. She and other YMCA and RYTAC members formed and became involved in the “RYTAC Concerned Citizens Group” in 2004. This group committed to clean up, upgrade courts, explore partnerships and increase tennis memberships and develop a long term plan for the future of RYTAC.

[32] Subsequently the RYTAC standing committee of the YMCA Board was formed. which was chaired by YMCA board member Steve Kent. In November, 2005 this committee presented a 5 year plan to the YMCA Board, a plan which involved a lot of work by some volunteers and considerable input and support from all sectors of the community. The plan included in its recommendations that there be continued discussions with Algoma University and other potential partners.

[33] According to Ms. Sewards, she was advised by Steve Kent that the plan was presented to the board and had been discussed at length and that he had expressed the concerns of the committee as best as he could. However, no resolutions were passed. Ms. Sewards states that she was upset by the fact that the committee never received a formal response to its report and were not provided with the opportunity to address the committee directly.

[34] According to Ms. Sewards, although the standing committee continued to meet in 2006 and 2007 it received little support or communication from the YMCA board and it appears that after 2007 the committee faded away.

[35] Ms. Sewards alleges in her affidavit material that the YMCA never approached in good faith any discussions with other organizations to operate the RYTAC facility. In support of this allegation she filed a letter dated August 14, 2012 from the president of Algoma University in which he states that Algoma University would be willing to participate in any arrangement to keep the facility operating that is acceptable to the principals. She also filed a letter from the owner of the local Canadian Tire store dated October 23, 2012 to a local lawyer in which he expressed his willingness to approach the Canadian Tire charity “Jumpstart” with a proposal to assist financially with the costs of maintaining the RYTAC programs.

[36] She expresses what she refers to as a number of opinions in her affidavit material, including her opinion that the YMCA continued over many years to “mine” the RYTAC property and to run only the profitable summer day camps on the site, which she states contributed to the deterioration of the property, and that the YMCA made little or no effort to promote tennis and/or the aquatic sports. She accuses the YMCA of being negligent in relation to what she views is a Trust Agreement which it entered into with The St. Mary’s River Boat Club and she calls on the YMCA to fulfill its duty according to this Trust Agreement.

[37] Ms. Sewards also expresses her opinion that the YMCA and Rotary Club have acted together to keep their desire and plan to sell the RYTAC property “under wraps for a considerable period of time”.

[38] Also she expresses her opinion that the property must remain a trust and be transferred to respected non-profit local organizations to operate in accordance with the trust agreement.

[39] Ms. Sewards filed an amended Motion Record on October 17, 2012. In this record she states that if the court grants her standing she will be seeking the removal of Mr. De Sante as counsel for the Public Guardian and Trustee on the following grounds:

a) Mr. De Sante has committed himself to the settlement, which she states is not in accordance with the intentions of the Grantors of the property.

b) Mr. De Sante has not done his due diligence with respect to the YMCA’s attempt to terminate the trust, for example challenge the affidavit of Kim Caruso, the CEO of the YMCA, which she states is false and inaccurate.

c) Mr. De Sante has given little consideration to the community concern that the trust must be continued and the fact that the YMCA has given no time to the beneficiaries to find an alternate trustee.

Affidavit evidence filed by the YMCA and Rotary Club on the Motion to Intervene

[40] The YMCA and The Rotary Club, which are represented by the same counsel in this application and on the motion, filed an affidavit sworn by Kim Caruso who is the General Manager and interim Chief Executive Officer of the YMCA in response to this motion to intervene.

[41] Mr. Caruso deposes that the YMCA has in fact made numerous efforts over the years to try and improve the community support for the RYTAC and the financial situation facing the program. He deposes as well that the YMCA has applied for numerous grants to try and improve funding for RYTAC but states that those grants only help RYTAC’s situation in the short term and no long term financial solutions for the program have materialized.

[42] Mr. Caruso also deposes that the YMCA has approached many community partners to investigate whether the usage and financial situation affecting RYTAC could be improved. He states that despite these efforts, RYTAC is not well supported in the community and is not financially viable, for the reasons he set out in his affidavit of July 27, 2012. The affidavit of July 27, 2012 is the affidavit which was filed by the YMCA in response to the main application and the affidavit on which he was cross examined on September 24, 2012. He disagrees with Ms. Sewards’ allegation that the YMCA has not engaged in good faith negotiations.

[43] Mr. Caruso agrees with Ms. Sewards that members of the community have come forward and voiced their desire that RYTAC remain open, and that they have contributed time and money to try and help RYTAC, but he maintains that the major problem is that no one has come forward with the capital necessary for RYTAC to be financially viable.

[44] Mr. Caruso disagrees that the problem will be resolved simply by community members coming forward with an offer to operate RYTAC themselves. He points out that the YMCA is legally responsible for the safety of anyone who enters the property and that this is a particular problem given the extreme state of disrepair of the clubhouse and the fact that people use the property for aquatic sports.

[45] Mr. Caruso denies the YMCA has deliberately run the RYTAC property down as a means of selling the property, since doing this would only harm the value of the RYTAC property.

[46] He reiterates the fact that the YMCA has financed RYTAC since the property was acquired in 1969 and that every year the YMCA has spent thousands of dollars on overhead costs of owning, operating and insuring the property, as well as advertising the program. He states that the YMCA has done this notwithstanding the fact that RYTAC is not financially viable, and to the best of his knowledge never has been. He also reiterates the fact that the community simply does not support the program to the extent necessary to make the program viable and that the YMCA cannot continue to support the annual losses.

[47] He disagrees that the YMCA has attempted to keep the sale of the property “under wraps” as alleged by Ms. Sewards, and points out that the intended sale of the property was announced in the local newspaper and the property was publically listed for sale.

[48] Mr. Caruso also points out that Ms. Sewards resides on a property that is adjacent to the RYTAC property and in recent years she has made numerous complaints to the YMCA about the noise that comes from the property when children are playing or attending camps and about the light that is shed on her property at night from the lights above the tennis courts. He suggests that her complaints are based on self-interest, which includes her fear that the property will be sold to a developer and that a condominium will be built next to her property.

[49] Finally, Mr. Caruso deposes that he does not believe that Ms. Sewards has any information, evidence or interest in the proceeding which will be of assistance to the parties involved, or assist in determining the legal issues at play in the proceeding. He states that if Ms. Sewards is granted leave to intervene, her involvement will serve to unnecessarily lengthen and complicate the proceeding, and will cause the YMCA to incur further legal costs unnecessarily.

Legal Framework and General Principles

[50] Rules 13.01 and 13.02 of the Rules of Civil Procedure deal with motions for leave to intervene as an added party or as a friend of the court.

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.01(2) Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[51] In order to decide whether Ms. Sewards should be granted leave to intervene it is necessary for the court to consider the nature and background of the litigation, the issues that arise in relation thereto and determine whether the proposed intervenor will be able to make useful contributions to the appeal without causing an injustice to the parties.[^2]

[52] The authority to grant leave to intervene is discretionary, even in the absence of undue delay or prejudice.[^3] Even if the proposed intervenor satisfies the elements of Rule 13.01(1) and (2), the decision whether or not to grant leave to a party to intervene in a proceeding is a discretionary decision for the court.[^4]

[53] In the final analysis, the court must consider whether the contribution that might be made by the proposed intervenor is sufficient to counterbalance the disruption caused by the increase in the dimensions and complexity of the proceedings before the court.[^5]

Analysis and Basis for Decision

[54] I note that clauses (a), (b) and (c) in paragraph 13.01 (1) of the Rules of Civil Procedure are to be applied disjunctively and not conjunctively.[^6] I accept that Ms. Sewards has met the criteria set out in this paragraph for the following reasons:

[55] Firstly, as the owner of a neighbouring property, as a former member of RYTAC and the YMCA’s RYTAC Standing Committee, and as a past volunteer on behalf of RYTAC I find that Ms. Sewards has an interest in the subject matter of the application proceedings. Secondly, as a neighbour and as someone who has a demonstrated commitment to the youth of the community and to athletics, I am prepared to find that she may be adversely affected by the proceedings. Finally, her position with respect to the ownership interests related to the RYTAC property indicates that there exists between her and the parties to the application a question of law and fact in common with one or more of the questions in issue in the application.

[56] Notwithstanding my finding that Ms. Sewards meets the criteria set out in Rule 13.01 (1) it is my view that she has not met the requisite test which would entitle her to be granted intervenor status or status to act as a friend of the court in this proceeding. I have reached this conclusion for the following reasons:

Ms. Sewards’ intervention fails to enhance the court’s ability to determine the issues in a significant way

[57] Ms. Sewards bears the onus of demonstrating that her intervention will enhance the courts ability to determine the issues in this application.[^7] In my view, she has failed to do so for the following reasons:

a) To a substantial extent, Ms. Sewards’ position mirrors that of the applicants. She proposes to adopt their arguments and seeks identical relief. At paragraph 24 of her affidavit she states:

I support the application to stop the sale of the property and am of the opinion that the property must remain a trust and be transferred to respected non-profit local organization(s) to operate in accordance with the trust agreement.

The 2 applicants have conceded that their involvement is not based on their personal interests in the property but rather they are seeking to represent the “community of Sault St. Marie”. Ms. Sewards also seeks to represent the community interests.

The role of the Public Guardian and Trustee (the “Public Guardian”) is also to represent the public with respect to charitable issues. Given the involvement of the Public Guardian in this proceeding and the intention of the applicants to represent the public interest, the intervention of Ms. Sewards as a party to this proceeding or as a friend of the court is not necessary and would be duplicitous.

b) The issues before the court are comprised of complex legal issues. They involve the application of the Charities Accounting Act, the interpretation of the 1969 agreement and deed and an understanding of the provisions and application of the Perpetuities Act.[^8] The parties have each retained counsel with considerable expertise in these legal issues and these counsel have now advised them with respect to settlement of these issues. It is difficult for me to imagine how Ms. Sewards could be of assistance to the court in view of the nature of the issues involved, either as an added party or as a friend of the court.

c) Ms. Sewards argues that the YMCA has not acted in good faith. Her arguments in this respect are based on her opinion, which is not properly admissible evidence.

Undue Delay

[58] The property was listed for sale in June of 2012. In July, 2012 the application was commenced. Among the relief requested by the applicants was an interim injunction prohibiting the sale of the property. The respondents to the application agreed to abide by an interim injunction prohibiting the sale of the property, pending the hearing of the application for an interim injunction which was originally scheduled for September 27, 2012 and then rescheduled to October 4, 2012. The parties have now reached an agreement which will permit the property to be sold forthwith.

[59] Ms. Sewards has indicated that she intends to bring an application for an interim injunction if she receives status as an intervenor. She also intends to cross examine Mr. Caruso and to bring a motion to remove Mr. De Sante as solicitor for the public Guardian and Trustee. If she is granted status, the parties will be faced with the prospect of further delays in selling the property. I note that Ms. Sewards has had many months to bring her application and she has not adequately explained her delay in doing so. In my view, exposing the parties to the prospect of further delays in listing the property for sale would be unfair to them, especially since they are continuing to incur costs in maintaining the property.

Additional Costs.

[60] Cross examinations on the affidavits filed by the parties have been held. Ms. Sewards has indicated that in the event she is granted intervenor status, she will take steps which will include filing affidavit evidence and cross examining Mr. Caruso. These steps, some of which are clearly duplicitous, could substantially increase the costs to the parties. I note that in their submissions the parties made it clear that one of the factors which motivated them to settle the application in the early stages was that by doing so they were able to limit legal fees and maximize the amount of money which would become available for the intended charitable purposes. This benefit will be lost if the matter delayed and additional costs are incurred.

[61] In addition to the added legal costs, the YMCA will also continue to incur additional expenses associated with the ownership of the property. These expenses include insurance and maintenance expenses and the costs of securing the property. It also runs the risk that it may miss out on potential buyers. It would appear that Ms. Sewards is not exposing herself to any significant legal costs. Although she has received assistance from counsel, she represented herself at the hearing and there is no counsel of record. Also, she has not offered the undertaking as to the damages in the event she is successful in her attempts to delay the sale of the property, promising at the hearing only that she would have to “think about it”.[^9]

[62] In conclusion, it is my view that the delays and increased costs which will occur if I grant the motion will not be justified by the benefit that Ms. Sewards’ involvement will add.

Allegations of Bad Faith by Ms. Sewards against the YMCA and allegations of Self Interest by the YMCA against Ms. Sewards

[63] Although it is not necessary for me to do so I feel compelled to make some comments about some of the allegations the parties have made against each other.

[64] Firstly, I wish to make it clear that in exercising my discretion to deny Ms. Sewards’ motion I was not influenced in any way by the argument put forward by the respondents that Ms. Sewards was motivated by mere self-interest. There were no facts put forth in support of this allegation, and in my view this allegation rests on mere speculation.

[65] Ms. Sewards has been a resident of Sault Ste. Marie for 40 years and has a long and distinguished history of community service. Like many residents of Sault Ste. Marie, she is mourning the potential loss of the RYTAC property, a property which has become synonymous with the sounds of children playing and tennis balls thudding against the surface of a tennis court. She has shown considerable courage and resilience in bringing her motion before the court. She has presented her case in a dignified and thoughtful manner and she should be commended therefore.

[66] It is true that Ms. Sewards has complained about the noise and the tennis court lights which shine on her property over the years. However, there is nothing incompatible about her desire to reduce the level of noise and the amount of light which impacts her property, and her desire to maintain the RYTAC property for aquatic sports and tennis; in fact, if she was truly motivated by self-interest one would expect that she would not be promoting the continued use of this property for tennis and aquatic sports.

[67] Secondly, with respect to the allegation by Ms. Sewards that the YMCA has not demonstrated good faith in maintaining and promoting RYTAC, I wish to make it clear as well that there was no evidence presented to me which would support this allegation. The evidence established that the YMCA demonstrated considerable commitment to the program over a 42 year period. By Ms. Sewards’ own admission, this allegation was based on her opinion…it too is merely speculative.

Disposition

[68] For the reasons stated above, Ms. Sewards’ motion to be granted status as an intervenor or as a friend of the court is dismissed.

[69] I have considered the Minutes of settlement which have been presented to the court by the parties to the application. In my view they are consistent with the objectives set out in the Charities Accounting Act and the public interest and they will be endorsed accordingly.

Costs

[70] In the event the parties feel it is necessary to make submissions to me on the issue of costs, the respondents are to make such submissions in writing within 14 days of the release of this decision, and thereafter Ms. Sewards has 14 days to respond with her submissions.

E.J. Koke J.

Released: November 1, 2012

[^1]: Charities Accounting Act, R.S.O. 1980, c.65 as amended [^2]: M v. H, 1994 7324 (ON SC), 20 O.R. (3d) 70, 1994 CarswellOnt 473, para. 36 [^3]: Finlayson v. GMAC Leaseco Ltd., 2007 4317 (ON SC), [2007] O.J. No. 597 (Ont. S.C.J.) [^4]: Bloorview Children’s Hospital Foundation v. Bloorview MacMillan Centre, 2001 CarswellOnt 1542, para. 23 [^5]: Sudbury (City) v. Union Gas Ltd., [2001] O.J. NO. 80 (Ont. C.A.) [^6]: Finlayson, supra [^7]: M v. H, supra, at para 48; Ontario (Attorney General) v. Dieleman, (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32 [^8]: Perpetuities Act, R.S.O. 1990, c. P. 9 [^9]: See Rule 40.03 of the Rules of Civil Procedure