SUPERIOR COURT OF JUSTICE – ONTARIO

ESTATES LIST

Court File No. 05-122/13

RE: Ian M.D. Carlsen, Applicant

AND:

The Estate of Ingrid Doherty-Carlsen, Briane Doherty, personally and in his capacity as Estate Trustee of the Estate of Ingrid Doherty-Carlsen, Christopher Doherty, Wawanesa Life Insurance Company and Metroland Media Group Ltd., Respondents

Court File No. 05-28/14

RE: Briane Jay Doherty, Applicant

AND:

The Estate of Ingrid Doherty-Carlsen and Ian M.D. Carlsen, personally and in his capacity as Estate Trustee of the Estate of Ingrid Doherty-Carlsen, Respondents

BEFORE: D. M. Brown J.

COUNSEL: D. Delagran, for Ian Carlsen

S. Bojeczko, for Briane Doherty, personally and in his capacity as Estate Trustee of the Estate of Ingrid Doherty-Carlsen, and Christopher Doherty

C. Clapperton, Estate Trustee of the Estate of Ingrid Doherty-Carlsen

HEARD: March 4, 2014

SCHEDULING DIRECTIONS (delivered orally)

I. Enforcement of the “3Cs” on the Toronto Region Estates List

[1] There are two matters before me. There was a 9:30 appointment in Application Number 05-28/14, in the matter of The Estate of Ingrid Doherty-Carlsen, in which Briane Doherty was the Applicant and The Estate of Ingrid Doherty-Carlsen and others were Respondents. The main request at that 9:30 appointment was that the 28/14 proceeding be dealt with together with a related Application, Court File Number 05-122/13. That relief was unopposed. So, I endorsed the 9:30 scheduling appointment form as follows: “On consent this proceeding shall be dealt with together with Application 05-122/13.”

[2] The second matter appeared as a 10 o’clock hearing appointment scheduled for 25 minutes. The matter was to be heard by another judge; unfortunately he was ill today. The file came to my attention at 9:10 a.m. this morning. In the file was an application record of the Applicant, Ian Carlsen. That application record had been filed on November 18, 2013. The application record bore an Endorsement from RSJ Morawetz which read: “Scheduled March 4, 2014, 30 minutes.” That is to say, three months before today, RSJ Morawetz had assigned 30 minutes for the hearing of this matter.

[3] On February 24, 2014 - that is to say, slightly more than one week ago - the Respondent Briane Doherty, who is a Respondent personally, as well as a Respondent in his capacity as Estate Trustee, of The Estate of Ingrid Doherty-Carlsen, and the Respondent Christopher Doherty filed their responding application record. That application record was dated February 20, 2014. Since RSJ Morawetz did not make any detailed endorsement on December 4 and only set a hearing date, I assume that he, like most judges on the Commercial List, had concluded that counsel would be able to prepare the application for the short 30 minute hearing scheduled for today, March 4, 2014.

[4] Against that background, why the Respondents would have waited until only a week before the hearing date to file their responding application record is a mystery to me.

II. The need for facta on applications

[5] When I asked counsel what was to happen in this matter today, I indicated to them that since the materials had come to me late in the day and that there were no facta in the court file, I was not prepared to hear the application.

[6] I said that because Rule 38 of the Rules of Civil Procedure is quite clear on the point. Rule 38.09(1) mandates the filing of factums by applicants and respondents on applications. The matter before me in the 05-122/13 matter was an application. It therefore follows that there should have been a factum from the Applicant and a factum from the Respondent. None were filed.

[7] Even on simple applications facta are mandatory. They are mandatory because given the volume of paper that crosses a judge’s desk during the course of an ordinary motions and applications day, it is critical that judges have a quick overview of the material facts and the applicable law. That purpose is served by the factums. Since there were none in this case, I indicated to counsel that I would not hear the matter on the merits today.

[8] At that point, counsel advised that they had actually settled about 90 or 95% of the issues; at that point each counsel handed me a draft of their proposed order for directions. There were many numbered paragraphs - I forget the exact number - but it took us up until paragraph 14 before material differences emerged.

[9] At that point I indicated to counsel that the most sensible way of proceeding was for them to go outside and work out a consent order for directions on the matters upon which they could agree, and then we could discuss how to proceed on the matters upon which they could not agree. After a recess of that matter for a good 45 minutes, counsel came back and said they had no agreement on an order for directions. So, we seem to have gone from agreement on 90% of matters to agreement on 0% of matters. Counsel wanted to schedule a hearing date.

III. The “3 Cs” on the Estates List

[10] The only reason that I am taking the trouble of giving brief oral reasons on this scheduling matter - oral reasons which I will incorporate into written reasons for judgement which I will release to the parties and post on - is that it is now the responsibility of judges on the Commercial List to hear Estates List matters. I have only been doing it for about a week and a half, following a four year hiatus from work on the Estates List.

[11] After less than two weeks I am troubled by the wastage of time on the Estates List. The matters are booked; time is allocated; and when push comes to shove - when the matter comes before a judge - things go “poof”; and, all of a sudden, time which has been booked - time which I would note which is not available to other parties who want to get on the List - no longer will serve any productive purpose.

[12] This wasting of judicial time by matters on the Estates List must stop, and must stop immediately.

[13] The most productive means by which to ensure that this wastage of time on the Estates List stops is to ensure that the procedural ethic which is used on the Commercial List is imported onto the Estates List.

[14] The Commercial List Practice Direction has emphasized, for several decades now, that counsel and parties who engage in litigation on the Commercial List must adhere to the “3 Cs”. That is described in paragraph 5 of the Commercial List Practice Direction for the Toronto Region. Paragraph 5 reads as follows:

“Cooperation, communication and common sense shall continue to be the principles of operations of the Commercial List.”

[15] Now that judges of the Commercial List are responsible for hearing matters on the Toronto Region Estates List, those three C’s now apply to all matters on the Estates List.[^1]

[16] Translated in a practical manner to the specifics of the application that was scheduled before me today, it is incumbent upon, and an important responsibility of, counsel on Estates matters to ensure that prior to booking time with the Court that they have fully discussed amongst themselves the nature of the dispute which they want the Court to hear, the amount of time which will be required to hear the matter, and the steps which have to be taken to prepare the matter for hearing.

[17] So, to get specific, when RSJ Morawetz on December 4, 2013, allocated 30 minutes for the hearing of this application on today, March 4, 2014, it then became the responsibility of counsel to actively cooperate and to actively communicate to ensure that all steps which had to be taken before the March 4th hearing would be taken in a timely matter and that all materials that the Rules require to be filed before the Court would be filed in a timely matter. And throughout that ongoing process of dialogue, cooperation, and communication amongst counsel, the third “C” - common sense - was supposed to affect all of their discussions.

[18] I fail to see evidence of cooperation, communication and common sense in this particular file, especially when counsel initially represent that they have worked 90% of the matters out, and then after a break to reduce that agreement to writing they represent that nothing has been worked out. There is something badly wrong in the State of Denmark when that happens.

[19] Those sorts of habits amongst Estates List counsel must change and they must change now. And, it will now be the obligation of judges on the Commercial List to attempt to inculcate into Estates List counsel the three C’s and the principle that if time is booked, time should be used.

[20] I think that in the present case, when I asked counsel what remained to be done for the hearing, it appeared that the hearing was not ready for the judge. The Respondents’ counsel had stated that perhaps there would have to be cross-examinations on the affidavits filed. Why that suddenly surfaced today without prior communication to the Court is beyond me.

IV. Conclusion

[21] This, counsel say, is a simple matter of interim support. If it’s a simple matter of interim support, perhaps cross-examinations are not necessary. I do not know the answer to that question; I am not going to devote any more time to that particular issue. What I will do is endorse the Application Record in proceeding 05-122/13: “For oral reasons given, adjourned sine die.” I adjourn it on that basis so that counsel will have the opportunity to practice the “3 Cs” and that they can come together, and they can cooperate ,and they can communicate, and they can apply common sense to ascertain what further steps are required before this particular application is ready for hearing.

[22] Once counsel have concluded that the matter is ready for hearing, counsel may re-attend through a 9:30 appointment before a judge of the Commercial List and demonstrate to that judge that the matter is ready for hearing. If the judge is satisfied that the matter is ready for hearing, then the judge can allocate a hearing date for the matter. Until such time, I see no further need to spend judicial time on this matter.

D. M. Brown J.

Date: March 4, 2014

[^1]: Section 2 of the Toronto Region Estates List Practice Directions tracks that language and adds the principle of civility.