BARRIE COURT FILE NO.: CV-10-0249
DATE: 20130109
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANGELINA BAILEY, Possessory Claimant
AND:
GERALD HARRY BARBOUR, Objector
BEFORE: M.P. EBERHARD, J.
COUNSEL: R. J. Fenn, Counsel, for the Possessory Claimant arguing the motion, I. De Rijcke and S. Fairley Counsel for the Possessory Claimant
J.E. Streisfield, Counsel, for the Objector
HEARD: January 4, 2013
ENDORSEMENT
[1] Every word spoken in this case is parsed beyond recognition so my endorsement is bare bones.
FACT BASIS
[2] Barbour owned land on the mainland.
[3] Bailey purchased island/point and crossed and impacted part 2 land.
[4] Barbour complained of Bailey crossing and impacting part 2 land.
[5] Bailey commenced Boundaries Act claim and registered it on Barbour title.
[6] Barbour objected. Barbour succeeded at Boundaries Act hearing.
[7] Bailey appealed to Land Titles Act Specialized Tribunal before Deputy Director of Titles Rosenstein. Bailey succeeded at hearing.
[8] Barbour took the dispute to the Superior Court of Justice for trial de novo. Barbour succeeded. Costs ordered against Bailey.
[9] Bailey appealed and succeeded in Court of Appeal on the grounds of apprehension of judicial bias, with no consideration of the merits of the claim. Costs order of trial set aside. Costs ordered against Barbour.
[10] Barbour does not pay Court of Appeal costs claiming impecuniosity and inability to borrow (due to the notice of claim on title) but owns the land notwithstanding. Abstract of title silent as to nature of claim but affidavit evidence that claim only relates to part 2.
ORDER SOUGHT
[11] Bailey motions to stay the new trial or in the alternative for security for costs. Barbour cross-motions for security for costs.
[12] Barbour argues rule 56.01 does not operate against him because, in substance, he is the Defendant resisting a claim to his land even though in the Superior Court of Justice he is the initiator because he pursued trial de novo after defeat in the specialized tribunal.
[13] Both counsel rely also on rule 1.04.
[14] I have become involved in this case in my role as Local Administrative Judge and presiding over Trial Scheduling Court. The circumstances of these parties and the state of the litigation made it necessary in the interest of justice to attempt to craft directions to facilitate the re-trial so I took it on in a pre-trial judge role. The motion was separate and aside from this effort. However it was expressly on consent that I heard the motion notwithstanding my other role and that I would not be disqualified from continuing in the effort to facilitate trial issues and/or resolution.
[15] I wrote the substance of the ruling after argument and before returning to the courtroom to resume my pre-trial function. I did not announce the result of my ruling at that time as it might impact the parties in their responsibility to consider the risks of litigation, to participate in an authentic attempt to narrow the fact disputes requiring oral evidence and to consider procedural issues to bring this marathon litigation under control.
[16] I also engaged, as I had previously, in suggesting strategies for resolution.
[17] I mention this other role to distinguish it from my duties as the motion judge. My remarks from earlier pre-trial meetings were raised in submissions but pre-trial and settlement discussions have no place in a argued motion.
[18] It is common ground that the Court of Appeal costs order stands no matter what happens in the action hereafter. If Barbour succeeds it would be set off against any award he achieves. If Bailey succeeds, Barbour will owe the Court of Appeal costs and any additional amounts awarded.
[19] The evidence is that Barbour has no cash and he states vaguely that his land is encumbered by Bailey. In fact, only the notice of claim clouds title and that only to the disputed Part 2 area.
[20] The reality of this litigation is that both sides face the risk of loss of the very properties their disagreement of use and enjoyment over which they have argued for a decade, to pay litigation cost. This Dickensian truth brings into sharp focus the need for court participation in bringing the matter to finality.
[21] Each side has had success in two proceedings.
[22] Ordinarily this court would be stern in requiring the Court of Appeal costs be paid before a further trial. Here, however, there is little risk that amounts found to be owing by Barbour can be enforced against the land.
[23] There was some discussion of a non-dissipation order, perhaps mutual, but that would create many complications. Dispositions at this stage in the litigation would be subject to considerable scrutiny even without such an order.
[24] The effect of a stay would be to deny access to justice to a litigant (age 96) who has won on the merits twice in favour of a litigant (also of an age) who has won on the merits once and once succeeded in overturning judgment on a basis that does not speak to the merits of the dispute. They are parallel in their achieved success.
[25] It would be entirely unsatisfying from a justice perspective to either impose a draconian stay or to give one side or other a leg up at a stage in the litigation where they are (once again) seeking a de novo hearing of the merits of their dispute.
[26] Neither is at greater or lesser risk either of success or of being left unable to satisfy any judgment they might achieve.
[27] The rules under which Bailey moves, and Barbour responds with cross-motion to similar effect, give me considerable discretion. Rule 1.04 which they both invoke would be ill used to put one at an advantage over the other.
[28] I therefore dismiss the motion and cross motion.
[29] During our discussions we reached several understandings which I have tasked Mr. Fenn to circulate for sign off. Each party is drafting a proposed agreed statement of facts. Despite my pressure to work on this I am not confident it can be achieved but the trial judge will be notified by this ruling that it is an effort they have been asked to make. They have been discussing the extent to which transcript evidence will be sufficient. The trial judge will be notified by this ruling that it is an effort they have been asked to make.
[30] We also had resolution discussions which I trust counsel will continue to pursue.
[31] The parties are scheduled to appear before the trial judge January 17, 2013 at 9:30 a.m. for first meeting to address rulings for the conduct of the trial that I was unable to impose in a pre-trial context.
EBERHARD J.
Date: January 9, 2013