SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-0249

DATE: 20130627

RE: ANGELINA BAILEY, Possessory Claimant

AND:

GERALD HARRY BARBOUR, Objector

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
I. De Rijcke and S. Fairley Counsel for the Possessory Claimant

J.E. Streisfield, Counsel, for the Objector

HEARD: June 26, 2013

ENDORSEMENT

[1] The respondent's counsel seeks to read in portions of the transcript of cross-examination evidence ("the read-ins") of the applicant given at the first trial of this matter before McIsaac, J..

[2] This proceeding is a new trial, as directed by the Ontario Court of Appeal (2012 ONCA 325), following the successful appeal by the applicant of the judgment of McIsaac J.. It is a dual-faceted preceding, being the appeal of the decision of Deputy Director of Titles Rosenstein, following an application by Mrs. Bailey pursuant to s. 46(2) of the Land Titles Act, R.S.O. 1990, c. L.5 (the “LTA”), and an application made pursuant to Rule 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “application"). As the Court of Appeal set aside the order of the trial judge and ordered a new trial, the application is being determined on the basis of oral testimony, which is common to both the application and the appeal.

[3] A procedural order was made by this court on January 17, 2013 which allows, with conditions, the transcripts of the testimony of expert witnesses who testified before McIsaac J. to be filed as exhibits and relied upon by the Court as if the evidence had been given in this proceeding in order to attempt to reduce trial time. The procedural order also permits transcript evidence of a deceased individual to be entered at this trial. This order was made on consent of counsel.

[4] The applicant's counsel objects to the read-ins on several grounds:

1. the procedural order contains counsels’ agreement on which transcripts will be relied on from the former proceeding, and does not include that of the applicant's evidence;

2. the direction from this Court at the time of the making of the procedural order on January 17, 2013 was that the evidence of lay witnesses was to be given by viva voce testimony in this proceeding;

3. a further order has been made by this Court on May 14, 2013 (2013 ONSC 2828) which confirms the earlier direction of the Court with respect to the evidence of lay witnesses;

4. the applicant's case was conducted according to the direction given on January 17, 2013, and the respondent's counsel had opportunity to conduct a fulsome cross-examination of the applicant during her testimony;

5. allowing for the reading in of what the respondent's counsel characterizes as “admissions" as part of his case offends the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67, as the evidence in question are statements against interest and therefore should have been dealt with during the applicant’s cross-examination.

[5] The respondent's counsel submits that s. 41 of the LTA, and s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), governs the procedure that this court is to follow on this appeal. Those statutory provisions are:

Regulations as to examination of title

41. The examination of a title shall be conducted in the prescribed manner, subject to the following:

42. Where notice has been given, sufficient opportunity shall be afforded to any person desirous of objecting to come in and state the person's objections to the land registrar.

43. The Director of Titles has jurisdiction to hear and determine any such objections, subject to an appeal to the Divisional Court in the prescribed manner and on the prescribed conditions.

Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 2 is repealed and the following substituted:

2. The Director has jurisdiction to hear and determine any objections, subject to an appeal to the Divisional Court in the manner and on the conditions specified by the Director.

See: 2012, c. 8, Sched. 28, ss. 28 (3), 98.

3. If the land registrar, upon the examination of any title, is of opinion that it is open to objection but is nevertheless a title under which the holding will not be disturbed, the land registrar may approve of it or may require the applicant to apply to the court, upon a statement signed by the land registrar, for its sanction to the registration.

4. It is not necessary to produce any evidence that by the Vendors and Purchasers Act is dispensed with as between vendor and purchaser or to produce or account for the originals of registered instruments unless the land registrar otherwise directs.

5. The land registrar may receive and act upon any evidence that is received in court on a question of title, or any evidence that the practice of conveyancers authorizes to be received on an investigation of a title out of court, or any other evidence, whether it is or is not receivable or sufficient in point of strict law, or according to the practice of conveyancers, if it satisfies the land registrar of the truth of the facts intended to be made out thereby.

6. The land registrar may refer to and act upon not only the evidence adduced before him or her in the proceeding in which it is adduced but also any evidence adduced before the land registrar in any other proceeding wherein the facts to which it relates were or are in question.

7. The land registrar may also act upon his or her own personal knowledge of material facts affecting the title upon making and filing a report, stating his or her knowledge of the particular facts and the means he or she had of obtaining such knowledge. R.S.O. 1990, c. L.5, s. 41; 2009, c. 33, Sched. 17, s. 5 (12).

Evidence

What is admissible in evidence at a hearing

15.(1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

[6] The respondent's counsel submits that I am "standing in the shoes" of the Deputy Director of Titles when hearing this appeal and that this Court should be governed by the same legislation. Other than the preceding statutory provisions, he cites no authority for this proposition, either statutory or common law precedent.

[7] Section 26 of the LTA provides for an appeal of a decision or order of the Director of Titles to the court, within 30 days of the decision or order, and that the appeal shall be by way of new trial. "Court" is defined in the LTA as the Superior Court of Justice.

[8] Section 1.02 (1) of the Rules of Civil Procedure provides that those Rules apply to all civil proceedings in the Superior Court of Justice, unless a statute provides for a different procedure. Although the respondent's counsel argues that s. 41 of the LTA and s. 15(1) of the SPPA allow for a different procedure, I reject that argument. Section 41 of the LTA applies to the Director of Titles when conducting a proceeding under that Act. While this is an appeal under the LTA, it is not an appeal made to the Director and therefore that section has no application. Also, s. 15(1) of the SPPA has no application, as it refers to the potential for relaxed rules of evidence before administrative tribunals, which has no application in the Superior Court of Justice. There being no other procedure mandated in a statute, I conclude that the Rules of Civil Procedure apply to this appeal.

[9] Additionally, the duality of this proceeding created by the application necessitates the application of the Rules of Civil Procedure. It should be obvious that conducting a proceeding where two different procedural avenues would be applied to common evidence and issues would be unwieldy, to say the least. Yet respondent's counsel relies on a pretrial judges's endorsement that preceded the trial before McIsaac J., where it is noted that "counsel agree that the Rules of Evidence & Procedure are SPPA (not Rules of Practice) & Rules under the Land Titles Act". That endorsement is dated September 24, 2010 and pre-dates the commencement of the application. The application was commenced by the applicant out of an abundance of caution, in response to earlier submissions made before McIsaac J. by the respondent's counsel to the effect that the Superior Court of Justice did not have the jurisdiction to make the orders being sought by the applicant.

[10] The respondent's counsel's alternative argument is that the Rules of Civil Procedure do apply. He submits that, as a result of what he characterizes as non-compliance with those Rules by the applicant's failure to deliver an affidavit of documents or conduct discoveries, this Court should impose an unusual remedy - this Court should treat the applicant's transcript of evidence from the trial before McIsaac J. as though it were the transcript of an examination for discovery.

[11] The novelty of that argument is unprecedented, and counsel's main premise is flawed. He could have sought, at a pre-trial stage, an order for production and discoveries. There is no evidence that he ever attempted to initiate such procedures, and was rebuked by opposing counsel, or that he sought such relief from the Court. That being the case, he cannot now argue that there has been procedural unfairness given that it has been confirmed since the Court of Appeal released its decision on May 16, 2012 that the application would proceed by new trial. There is no authority on which this Court could rely to have the transcript used as a discovery transcript so that Rule 31.11(1) might apply to permit the reading in of the applicant's evidence. This argument is similarly rejected.

[12] Finally the respondent's counsel argues that procedural fairness requires that the read-ins be permitted, because he has operated under the assumption that s. 41 of the LTA would apply and that the "rules of the game have changed" as a result of this Court's May 14 order. That order was made after he had completed his cross-examination of the applicant, and therefore he argues that his client's case is compromised. This Court cannot accept this argument for the following reasons:

1. this Court was clear on January 17, 2013 in its requirement that the evidence of lay witnesses must be given anew in this proceeding. An explanation was provided at that time, by which the Court expressed its views as to why it wanted to evaluate each lay witness's testimony with all of the benefits of observing and hearing their testimony first-hand;

2. the order of January 17, 2013 is clear with respect to which witness's previous transcripts could be used, but notwithstanding that, respondent's counsel states that he was somehow under the impression that the applicant's transcript was available to be used for some purpose in this proceeding;

3. the order of May 14, 2013 did nothing to change the “rules of the game", as it merely clarified for the benefit of respondent's counsel the scope of the January 17 order.

[13] Due to his expectation that he would be allowed to carry out the proposed read-ins, respondent's counsel suggests that his client has been prejudiced because he limited his cross-examination of the applicant. Regardless of what I find to be the unreasonableness of this expectation, based upon the analysis set out in the preceding paragraphs, there remains the specter that the court may not have before it all of the relevant evidence to make a just determination in this case. That potential risk must be weighed against the equally harmful risk that the proposed read-ins, if permitted, would not give opportunity to the applicant to address or provide any explanation for the evidence sought to be adduced, prior to being confronted with it in closing argument. This offends the rule laid down in Browne v. Dunn.

[14] The respondent's counsel submits that he is not seeking to impeach the applicant through such read-ins and therefore Browne v. Dunn has no application. He characterizes the evidence as “admissions". Again, counsel's argument is fundamentally flawed in that admissions, which are generally admissible as an exception to the prohibition against hearsay, are statements made out of court. The only other way for admissions to be entered into evidence in a proceeding in this Court is through a pleading, a Response to Request to Admit, or through an examination for discovery or cross-examination. None of this applies in these circumstances.

[15] It follows that the only permissible and proper use of that transcript would be for the purpose of impeachment, which had to occur during the applicant's cross-examination. This can only be done where the respondent's counsel establishes that the applicant's two statements are inconsistent, and then having so established, the procedure to be followed is prescribed in s. 20 and s. 21 of the Ontario Evidence Act, R.S.O. 1990, c. E.23. None of the statutory requirements were complied with.

[16] Even if it is the case that the respondent's counsel does not seek to impeach the applicant, then he should have adduced the evidence for some other purpose during the opportunity given to him for cross-examination. Having characterized the evidence as “admissions”, it is clear that they are statements against the applicant’s interest, to which she should have been given the opportunity to respond.

[17] Notwithstanding that there is no basis at law for the read-ins to occur, I have reviewed the proposed read-ins to satisfy myself that the evidence does not address issues that could not have been raised during counsel's cross-examination of the applicant in this trial. Some of the proposed read-ins, in fact, question the applicant on topics and issues that were asked by the respondent's counsel at this trial. Having now heard over 90% or more of the evidence to be presented in this trial, I find there is nothing so pivotal or crucial in the read-ins that would persuade me to contravene the Ontario Evidence Act, the common-law rules of evidence or the Rules of Civil Procedure to permit the prior statements to be entered into evidence at this trial. A full and fair determination can be made in this case without such evidence.

[18] For the foregoing reasons the respondent's oral motion to be permitted to read in portions of this transcript of the applicant's cross-examination before McIsaac J. is dismissed.

HEALEY J.

Date: June 27, 2013