ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-09-384665-00A1
DATE: 20130410
B E T W E E N:
Edward marchant as Litigation Guardian On Behalf of Andrew Marchant, a minor
Respondent/Plaintiff
- and -
RBC Dominion Securities Inc., Jerry Crawford and Rosemary Marchant
Respondents/Defendants
- and -
Kenning Marchant, Colin Marchant, Rosemary Marchant and Ian Marchant
Appellants/Third Parties
- and -
Barry Paquette and Paquette, Travers and Hussein
Respondents
No one appearing
for the Respondent/Plaintiff
Marc Kestenberg,
for the Respondents/Defendants, RBC Dominion Securities Inc. and Jerry Crawford
Shael Eisen & Pia H. Hundal,
for the Respondent/Defendant Rosemary Marchant
Kenning Marchant,
for the Appellants/Third Parties
Rebecca Studin,
for Barry Paquette and Paquette, Travers & Hussein
HEARD: April 2, 2013
GOLDSTEIN J.:
[1] The Marchant family appears determined to consume itself and others in a family dispute over a relatively small amount of money. To that end, there have been at least five different proceedings in the Superior Court. The family is split into factions. One faction brought a motion to have the five proceedings heard together. Master Abrams dismissed the motion. On April 2, 2013 I dismissed an appeal from that decision with costs. I made the following endorsement:
I am not persuaded that Master Abrams erred. The appeal is dismissed. I will issue more extensive reasons.
These are my reasons.
BACKGROUND
[2] The background facts and the five proceedings are summarized in the decision of Master Abrams and there is no need for me to significantly expand on those points here. Briefly, a trust was set up for the benefit of Edward Marchant to provide for his education. The Settlor was Edward’s grandmother, Edith Marchant. Rosemary Marchant was the trustee of the trust. Rosemary was also the trustee of Edith’s will.
[3] The five proceedings are:
• An application by Edward (by his litigation guardian, Andrew Marchant), against Rosemary for breach of fiduciary duty and removal of Rosemary as trustee of the trust. Andrew is Edward’s first cousin. Rosemary is Edward’s aunt.
• A contested passing of accounts in relation to the estate of Edith. As noted, Rosemary is also the trustee of the estate.
• An action by Edward (again, by his litigation guardian, Andrew) against RBC Dominion Securities and Jerry Crawford for negligence in relation to the assets of the trust. It is alleged that RBC and Crawford gave negligent investment advice.
• A third party claim against Rosemary by RBC and Crawford for indemnity in relation to the action brought by Andrew.
• A solicitor’s negligence action by Rosemary against Barry Paquette for allegedly negligent advice given in relation to the trust. That action was stayed by order of Master Dash.
[4] The faction that brought the motion is made up of Colin, Kenning, and Ian Marchant. They are the brothers of Rosemary. Kenning, who is a lawyer, acts for himself on this appeal as well as for Colin and Ian. Two of the proceedings are in Kitchener; three are in Toronto.
[5] Master Abrams exercised her discretion by determining that the factors in Rule 6 militated against trying the actions and applications together. The Master also doubted that she had jurisdiction to make some of the orders requested.
ANALYSIS
[6] The Appellants argue that Master Abrams erred as follows:
Failing to properly apply Rule 6.01;
By finding that she did not have jurisdiction to make some aspects of the order sought; and,
By failing to make the required ancillary orders, including the lifting of a stay of proceedings.
1. Did the Master err by failing to properly apply the Rule 6?
[7] The standard of review that this Court will exercise on appeal from a master was summarized by Strathy J. in Paul v. Pizale, 2011 ONSC 3490:
19 The standard of review on appeal from the Master was set out by the Divisional Court in Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Ont. Div. Ct.), aff'd, (2009), 2009 ONCA 415, 96 O.R. (3d) 639 (Ont. C.A.): the decision should not be interfered with unless the Master made an error of law, exercised his or her discretion on the wrong principles or misapprehended the evidence such that there was a palpable or overriding error. Where there is an error of law, the standard of review is correctness, whether the order is final or interlocutory. Where there is an error in the exercise of discretion, it must be established that the discretion was based on a wrong principle or that there was a palpable or overriding error in the assessment. See also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.).
[8] The Appellant does not quarrel with the Master’s statement of the principles by which she is bound as set out in the first paragraph of her reasons. The Appellant’s position is that the Master improperly applied those principles and took into account irrelevant factors.
[9] The motion before Master Abrams was governed by Rule 6, which states:
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.
[10] Ultimately, the use of the word “may” indicates that the decision made by the Master is a discretionary one. Thus, the Master’s decision is accorded a substantial degree of deference unless her discretion was based on a wrong principle or there was a palpable or overriding error in the assessment.
[11] In my respectful view the test for a motion under Rule 6 was properly set out by Master Glustein in Coulls v. Pinto:
18 The parties agree that the underlying policy of Rule 6 is to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings (Pilon v. Janveaux, [2000] O.J. No. 4743 (S.C.J.) at para. 6).
19 The parties also agree that if I find that there is either (i) a question of law or fact in common (under Rule 6.01(1)(a)), or (ii) the relief arises out of the same transaction or occurrence or series of transactions or occurrences (under Rule 6.01(1)(b)), or (iii) another reason why an order under Rule 6 ought to be made (under Rule 6.01(1)(c)), the court must still consider whether the balance of convenience favours such an order (Drabinsky v. KPMG, [1999] O.J. No. 3630 (S.C.J.)).
20 Consequently, I first must determine whether any of the criteria under Rule 6.01(1) have been met. If so, I would then consider whether the balance of convenience favours such an order, pursuant to the discretionary factors which include: (i) will the order sought create a saving in pre-trial procedures, and in particular, pre-trial conferences; (ii) will there be a real reduction in the number of trial days taken up by the trials being heard at the same time; (iii) what is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest; (iv) will there be a real saving in experts' time and witness fees; (v) is one of the actions at a more advanced stage than the other, and (vi) will the order result in a delay of the trial of one of the actions, and if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits a combined trial might otherwise have (Shah v. Bakken, 1996 2522 (BC SC), [1996] B.C.J. No. 2836 (S.C.) at paras. 14-15 ("Shah"); adopted by O'Neill J. in McKee v. Thistlethwaite, [2003] O.J. No. 2850 (S.C.J.) ("McKee") at para. 11).
[12] See also Logtenberg v. ING Insurance Co., 2008 43573 (ON SC), 2008 CarswellOnt 5100, 66 C.C.L.I. (4th) 145 (Sup.Ct.). I note that Master Abrams referenced the criteria in Shah v. Bakken, supra, in her decision.
[13] As a first step, the Master found that there was a common threshold issue as between the proceedings, namely whether Rosemary breached her various fiduciary duties. I accept that there may have been some common evidence and some common witnesses. That said, I see no error in the Master’s finding that only the threshold issue is a common legal issue.
[14] As to the balance of convenience, the critical point of Master Abram’s reasons is found in the following statement:
The proceedings are primarily Marchant family Estate matters. While the Marchant family drew RBC Dominion Securities, Jerry Crawford, Barry Paquette and Mr. Paquette’s firm into part of their family dispute, RBC Dominion Securities and Messrs. Paquette and Crawford are not and ought not to be part of the whole of the Marchant family dispute. Looking at the motion from the perspective of RBC Dominion Securities and Jerry Crawford only (and this by way of example), I accept that these two defendants have no interest in who the Trustee of the Estate may be (to be determined in the fiduciary duty application); they have no interest in the passing of the Estate’s accounts (to be determined in the accounts application); and they have no interest in whether or not Barry Paquette and his firm provided negligent legal advice to Ms. Marchant in dealing with the Estate (to be determined in the solicitor’s negligence action). To bundle this and the third party action, by way of example, with the other three proceedings and to compel all of the non-Marchant family parties to participate in a global mediation is to increase their costs and increase inconvenience to them, with little or no attendant benefit.
[15] The Master’s conclusion is unassailable. In my view Master Abrams took into account relevant factors and did not apply irrelevant factors. I see no error of principle. I, therefore, find that Master Abrams did not err in her application of the relevant factors under Rule 6.01.
[16] The Appellants also argue that the Master misapprehended the evidence. For example, Master Abrams found that the evidence of economy and bundling set out by the Appellants was self-serving. I see no error in her appreciation of that evidence. By self-serving, I read her reasons to mean that the Appellants looked to the resources that they would save, as opposed to the other participants in the proceedings and the justice system as a hole. Although it is not for me to second-guess the Master’s evidentiary finding (unless, as noted, she misapprehended the evidence) I have reviewed the Affidavit of Ian Marchant. Not only do I see no error in her approach, I agree with her conclusion.
2. Did the Master err by finding that she did not have jurisdiction to make some aspects of the order sought?
[17] The Appellants argue that Master Abrams erred by finding that by ordering the matters heard together she would be usurping the function of the applications judge. Given that one of the proceedings is an application, she found that her order would have the effect of converting an application into an action. In my view, this aspect of her decision is correct. Rule 38.10 is quite clear that only a judge can make such an order. I accept that it would be open to a Master to order that an action and an application can be heard together, given that Rule 6.01 refers to “proceedings” and does not differentiate between to the two types. That said, the Master was required to evaluate the effect of the order sought. The Appellants effectively asked for the Master to elevate form over substance. She declined to do so. I agree with her and see no error.
[18] The Appellants also pointed to the Master’s statement that she had no jurisdiction to transfer the Kitchener matters to Toronto because only a judge may transfer matters on the Estate List. They merely asked for a transfer without regard to the Estate List.
[19] In my view, this submission seeks to create a distinction without a difference. It is clear from Rule 75 and the corresponding Practice Direction that only a judge may make such a transfer. To say, as the Appellants do, that it is only a transfer from the Superior Court in Kitchener to the Superior Court in Toronto ignores the reality that these are estates matters and governed by specific rules and a Practice Direction.
[20] The Appellants also argue that Master Abrams erred by noting the fact that Rosemary has brought a motion before Then R.S.J. for case management. The Master stated that, in her view, case management was more suitable for these matters than a Rule 6 order. She noted that it was for Then R.S.J. to make that decision. In my view, there was no error by the Master. She was asked to make a discretionary decision. A Case Management Master like Master Abrams is an expert in civil procedure and practice. She is entitled to express her view as to the appropriate manner in which to manage a case and is entitled to take the fact that other management tools exist in making her decision. Since she made no error of principle in doing so, she is entitled to deference from a reviewing court.
3. Did the Master err by failing to make the required ancillary orders, including the lifting of a stay or proceedings?
[21] Given my findings on the first two issues, it is obvious that I do not need to find that the Master erred on this third issue. I will, for completeness, deal with the issue of the Master Dash order staying proceedings in the solicitor’s negligence proceeding. The parties in the solicitor’s negligence proceedings agreed as between themselves to hold the claim in abeyance pending the outcome of the estate litigation. Mr. Marchant argues that the stay should be set aside in the face of the agreement of the actual parties to that litigation, as well as in the face of their joint opposition where a proprietary interest can be shown. Although a person other than a party may move to set aside an order, standing must still be established: Ivandaeva Total Image Salon v. Hlembizky (2003), 2003 43168 (ON CA), 63 O.R. (3d) 769 (C.A.). The proprietary interest is said by the Appellants to be the interest in the outcome of the litigation between Rosemary and the solicitor. Master Abrams found that the parties were not “affected” by the order, because, inter alia, their beneficial interests remain intact regardless of the existence of the stay. In my view, she was correct. There was no basis for her to set aside or vary the order.
CONCLUSION
[22] As there were no errors made by Master Abrams, the appeal is dismissed.
COSTS
[23] At the hearing, after reviewing the costs outlines and submissions of the parties, I ordered that the following costs be paid:
• To RBC and Crawford: $6000.00
• To Paquette: $7000.00
• To Rosemary Marchant: $5000.00
Colin, Ian, and Kenning Marchant are jointly liable for these costs, which are to be paid within 30 days of today’s date.
GOLDSTEIN, J.
Released: April 10, 2013
COURT FILE NO: CV-09-384665-00A1
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Edward marchant as Litigation Guardian On Behalf of Andrew Marchant, a minor
Respondent/Plaintiff
- and -
RBC Dominion Securities Inc., Jerry Crawford and Rosemary Marchant
Respondents/Defendants
- and -
Kenning Marchant, Colin Marchant, Rosemary Marchant and Ian Marchant
Appellants/Third Parties
- and -
Barry Paquette and Paquette, Travers and Hussein
Respondents
JUDGMENT
GOLDSTEIN J.
Released: April 10, 2013