ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D/966/96
DATE: 2014-09-23
B E T W E E N:
Joseph Rosati
Linda Rosati
S. Jaskot, Counsel for the Applicants
Applicants
- and -
Laura Reggimenti
J. Chaimovitz, Co-counsel for the Respondent
G. Joseph, Co-counsel for the Respondent
Respondent
HEARD: September 17, 2014
THE HONOURABLE MR. JUSTICE G.A. CAMPBELL
REASONS FOR DECISION
1Two motions were argued before me on Wednesday, September 17, 2014, both brought by the Applicants for:
(1) an order vacating the non-dissipation Order of Lococo J. of April 8, 2013; and
(2) for an extension of time to file and for leave to Appeal the Order of Carpenter-Gunn J. of July 22, 2014 declaring a mistrial.
After submissions, I granted the relief sought in (1) and reserved my decision regarding (2) and costs.
2These are my Reasons for now granting both motions. Counsel are to provide their written costs submissions within the time-line to which they have agreed. Clearly, the Applicants have been entirely successful and are entitled to their costs as per Rule 24(1).
A: Extension of Time and Leave to Appeal
3Although, given the restricted nature of the motion relief sought I am somewhat constrained from offering comment on the potential success of the Appeal, I was invited by counsel (and Rule 62.02 and the case law) to examine the relative merits of the grounds of the Appeal.
4The Applicants seek leave to Appeal the interlocutory mistrial-Order of Carpenter-Gunn J. to the Divisional Court by dint of Rule 62.02(4) of the Rules of Civil Procedure which Rule directs me not to grant leave “unless,
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.”
5Paragraph 5 of Apotex Inc., v. Eli Lilly (2013) 1135 (Div. Ct.) sets out that:
“It is not necessary for the moving party to show that the decision is wrong, only that there is good reason to doubt the correctness of the decision. Nonetheless the test for leave is an onerous one. The question is whether the decision is open to serious debate and, if so, that the decision warrants resolution by a higher level of judicial authority. Leave then should be granted if the matters involved are of general importance that relate to matters of public importance and matters relevant to the development of law and the administration of justice. (my emphasis)
6I also accept counsel’s reliance on the principle set out in paragraphs 21 and 24 of the decision of Amato v. Welsh (2011) 3364 (Div. Ct.), which sets out that the threshold for leave is lower if the “very serious debate” factor to be argued and considered is novel and not in accordance with established case law.
7The moving parties also seek an extension of time to file their Notice of Motion for leave since they allowed the seven (7) day time period for same to pass before electing to seek to appeal. There is a good reason why they missed the seven day time period and they and their counsel are to be commended for their first effort. (i.e: his July 24 letter to the R.S.J. to intervene to try to “save” the thirteen (13) days of trial already invested) In any event, to reject a potentially successful appeal on the basis that a time limit was missed by mere days would allow a victory of process over substance. Counsel for the Respondent, when pressed, conceded that his client was not prejudiced by the missed seven-day time limitation On that point I need not comment further.
8Mr. Joseph did however emphasize Gillese J.A.’s articulated test set out in her decision, reported in Enbridge Gas Distribution Inc. v. Froese (2013) CarswellOnt 2423 (OCA) that (a) “the justice of the case” requires that an extension be given and (b) all relevant considerations should be taken into account, including the party’s bona fides; the length of and explanation for the delay; any prejudice to the other party by the delay; and the merits of the proposed appeal. Gillese J.A. further observed that:
“lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal”.
9I find that the facts of this case meet the Rule 62.02 (4)(b) conjunctive ground of both “open to very serious debate” AND “warrant resolution by a higher level of judicial authority” See: Curle v. Gustafson (2013) CarswellOnt 11866 (SCJ), paragraph 5.
10I base this finding on the nature and effect of the mistrial decision upon not only these litigants but, should trial judges follow Carpenter-Gunn J.’s lead, trials that run longer than counsel and the court’s trial co-ordinator’s estimate (if the newly predicted length of the trial conflicts with the presiding justice’s sitting schedule) then trial judges could regularly require any litigant to restart his/her trial hearing based upon “a danger of a miscarriage of justice” because of an error regarding the predicted length of trial only (and a court, or judge’s inability to offer continuous trial dates when the trial might continue beyond the originally predicted length).
11In this case, the parties had invested thirteen days of trial time, during which the Respondent, Reggimenti, suffered the loss of a significant ruling by the Presiding Justice when Carpenter-Gunn J. ruled that the Respondent’s expert, Ms. Minelli, was not qualified to offer opinion evidence. The learned trial judge also ruled that Ms. Minelli would not be permitted to offer “fact-based” evidence as well. Apparently, that ruling was devastating both to Ms. Reggimenti and sounded a death-knell to the estimated trial time, since counsel then advised the court that he would now have to call a further 14-20 witnesses; required another 12-15 days additional trial time and; was not available until April 2015 (some nine months hence).
12The presiding justice declined to turn the trial into “trial by installment”. She then decided that since the trial could not likely be completed in one continuous “installment”, there was a “real danger” that the litigants might suffer prejudice due to the pace of the case. She decided that since there was “a danger of a miscarriage of justice”, that mistrial was appropriate.
13The extended length of trial was the Trial Judge’s only reason upon which she exercised her discretion to declare a mistrial. Her very brief endorsement does not mention any of the usual “irregularities” that occur at trials, upon which mistrials have been granted in the past.
14The Supreme Court of Canada in R. v. Khan, 2001 SCC 86, 2001 CarswellMan 578 was very clear in its view regarding “a miscarriage of justice” and the tests relating to findings of and the nature of the “irregularities of trial” that occur upon which a mistrial can or should be based (and how or if those irregularities can be remedied): see paragraphs 74 – 79 as follows:
74 Courts should refrain from devising any strict formula in order to determine whether a “miscarriage of justice” has taken place. Irregularities which can occur during a trial may take many unpredictable forms. (See generally G.D. McKinnon, The Criminal Lawyers’ Guide to Appellate Court Practice, (Aurora, Ont.: Canada Law Book, 1997), at p. 89 and ff.; P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales, 6ᵉ ed. (Montréal: Thémis, 1999), at p. 762 and ff.; S.A. Cohen, “Controlling the Trial Process: The Judge and the Conduct of Trial” (1977), 36 C.R.N.S., 15). Some may impact the trial in a way which deprives the accused of a fair defence, while others are less significant, depending on the circumstances. The gravity of irregularities which may occur must inevitably be evaluated by courts on a case-by-case basis. This being said, certain elements can provide reference points in determining whether a miscarriage of justice has occurred.
75 First, one should ask whether the irregularity pertained to a question which was, in law or in fact, central to the case against the accused. Thus, an irregularity which is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point (see e.g. R. v. Olbey (1979), 1979 61 (SCC), [1980] 1 S.C.R. 1008 (S.C.C.), at p. 1029). Of course, this issue will not always be absolutely determinative, and it is possible that serious irregularity on a peripheral point can have rendered the trial unfair in reality or in appearance. Moreover, it is important to realize that some irregularities will not relate to a particular element in the case, but will rather create a general apprehension of unfairness on the whole of the case. This could occur, for instance, if jurors were led, through some irregularity, to feel greater sympathy for the Crown’s case in general or greater antipathy towards the accused.
76 Second, the court of appeal should consider the relative gravity of the irregularity. How much influence could it have had on the verdict? What are the chances that the apprehended detrimental effect of the irregularity did in fact occur? How severe could these detrimental effects have been for the accused’s case? This is important not only in relation to an actual finding of unfairness, but also in relation to the appearance of unfairness. A single irregularity which is unlikely to have had any significant impact would seem to indicate to the reasonable observer that the trial appeared fair.
77 When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial. Sometimes, a trial in which more than one error has occurred can be seen as unfair, even if these irregularities standing alone might not have been fatal on their own. (In that regard, compare R. v. Cathro (1955), 1955 46 (SCC), [1956] S.C.R. 101 (S.C.C.), with the dissenting judgment of Laskin J.A. of the Ontario Court of Appeal in R. v. Ferguson (2000), 2000 5658 (ON CA), 142 C.C.C. (3d) 353 (Ont. C.A.), at pp. 376-77, which was affirmed by this Court in 2001 SCC 6, [2001] 1 S.C.R. 281 SCC 6 (S.C.C.)). Conversely, when, apart from one alleged irregularity, the trial was otherwise error-free, the court may sometimes be justified in forgiving the error more easily.
78 Third one should be mindful of the type of trial during which the error has occurred. Was it a trial by jury or by
2001 CarswellMan 578, 2001 SCC 86, 47 C.R. (5th) 348, 160 C.C.C. (3d) 1, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, 160 Man. R. (2d) 161, 262 W.A.C. 161, 2001 CarswellMan 579, [2001] S.C.J. No. 83, [2001] 3 S.C.R. 823, REJB 2001-27058, J.E. 2002-24
a judge sitting alone? Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury. This is especially true considering that some irregularities can have a psychological effect, which we presume judges are more apt to overcome than juries. However, this question is not absolutely determinative, and some irregularities will render the trial unfair even if they occurred before a judge sitting alone, while other mistakes may not be fatal even if they took place before a jury. Thus, a well instructed jury may have the capacity to overcome irregularities.
Fourth, and related, is the possibility that the irregularity may have been remedied, in full or in part, at the trial. When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised (see Emkeit, supra, at pp. 139-40; R. v. Martineau (1986), 1986 4730 (QC CA), 33 C.C.C. (3d) 573 (Que. C.A.), at p. 576; R. c. Lessard (1992), 74 C.C.C. (3d) 552 (Que. C.A.), at pp. 559-63; R. c. Taillefer (1995), 100 C.C.C. (3d) 1 (Que. C.A.), at p. 54. Although that discretion is not absolute, its exercise must not be routinely second-guessed by the court of appeal. (my emphasis)
15Unfortunately, trials in Ontario that are completed within the predicted length are more rare than they are common. Indeed, for example, one rather well-known trial, completed in 2013 in Superior Court in London, Ontario was originally predicted to last 15 days; started October 2011 and was finally completed after 154 days, in May 2013 over a period of 20 continuous months. Although, that trial is an extreme example, trial fairness required that the presiding justice adjust his schedule to accommodate the completion of the litigation rather than on, say day 30 of the trial, declaring a mistrial on his own motion because the trial was taking too long.
16I find that the issue of mistrials due to trial length is of very great importance to every litigant (and every trial counsel and trial judge) in Ontario and is also so relevant to the development of the law and to the administration of justice that a higher judicial authority should be invited to consider and pronounce upon whether delay and/or the potential of non-continuous trials has or will become a (sole) basis upon which a trial can be terminated. (by declaring a mistrial)
17I find that both requirements of Rule 62.02(b) (i.e. correctness and importance) have been met. Accordingly I grant the extension of time and leave to Appeal sought in the Applicant’s Motion.
18Costs will follow the success of the motion.
B: Order to Vacate Non-dissipation Order
19I have already orally made some of my analysis known to the parties and counsel but would offer the following more fulsome comments.
20Two of the parties, Mr. Rosati and Ms. Reggimenti, were once married and this longstanding litigation arose from their separation and divorce.
21They have been litigating since 1996. They have been before various levels of court in Ontario and have brought differing claims against each other (and their new partners – e.g. the million dollar breach of privacy action against Pat, Ms. Reggimenti’s current partner).
22In 2009, Ms. Reggimenti sought a non-dissipation order to be registered against the former matrimonial home of her and Mr. Rosati. (12 Pickard Avenue) Part of the basis for her seeking that security was, she alleged, that she was impecunious and that Mr. Rosati and his now wife Linda, owned extensive properties (in Florida and Italy) and that the applicants were inter alia “selling their assets and/or drawing out equities …with a plan to leave the country”.
23On that evidence, Reilly J. was persuaded to grant the order sought. In varying forms and securing an ever-increasing amounts ($500,000 in 2010 at the time of the Pazaratz J. order and now $800,000 by the time of the last order), in April 2013. Lococo J. transferred the security from Pickard Avenue to the Applicants’ new home on Ontario Street, Ancaster. (just before the trial started)
24Ms. Reggimenti’s evidence, upon which the original Order was given (five years earlier), was challenged at trial and entirely discredited.
25Accordingly, after the mistrial Order, the Applicants have revived their motion to vacate (or amend) the Lococo J. Order (an offspring of the original Reilly J. Order of August 6, 2009).
26I have relied upon the decisions of Penny J. in Hekmati v. Oliver (2012) ONSC 3932 and of Sachs J. in Bronfman v. Bronfman (2000) 2000 22710 (ON SC), 51 O.R. (3d) 336 (Ont. SCJ.) (as followed by Herman J. in David v. Tangredi (2006) 44269 (ONSC)
27In Hekmati, Penny J. observed at paragraph 12 that:
The respondent is seeking, in effect, a Mareva injunction – pre-judgment execution. The critical requirement of the Mareva injunction requires the applicant to persuade the court that there is a real risk that the defendant is removing or about to remove assets from the jurisdiction to avoid the possibility of a judgment, or is otherwise dissipating or disposing of assets in a manner clearly distinct from the usual course of business or living. (my emphasis)
28In Davis v. Tangredi, Herman J. cites Sachs J. in Bronfman as follows:
“In the case of Bronfman v. Bronfman (2000), 51 O.R. (3d) 366 (Ont. S.C.J.), Justice Sachs conducts a helpful review of the applicable law. The purpose of section 12 (of the Family Law Act, R.S.O. 1990, c.F3) is to ensure that there are sufficient assets available to satisfy an equalization payment. An order under that section is akin to an interlocutory injunction. Of the three factors that apply to the granting of an injunction – the relative strength of the plaintiff’s case; the balance of convenience; and irreparable harm – the first two factors are relevant to obtaining an order under section 12. The court will want to consider both the likelihood that the petitioner will receive an equalization payment and the effect of granting or not granting the order on the parties. Also relevant to the exercise is an assessment of the risk of dissipation of the assets in question. (my emphasis)
29Based upon Mr. Rosati’s desire to expand his business, invest locally and be able to use his and Linda’s personal asset for their family’s own benefit, I conclude that rather than selling out and leaving the jurisdiction, they are clearly well ensconced and intend to remain to see the end to this litigation.
30The original intent to preserve a previously jointly owned asset in order to secure Ms. Reggimenti’s potential equalization claim has long been determined. To keep this (replaced) asset burdened is unfair to the Applicants, especially given Ms. Reggimenti’s unwillingness (or inability) to offer an undertaking as to damages for costs should her current claim be unsuccessful.
31Although asked repeatedly, Mr. Chaimovitz either didn’t hear the enquiry; chose to deflect it; or otherwise ignore my query why Ms. Reggimenti should continue to enjoy a secured position (should she win) when Mr. and Mrs. Rosati did not enjoy the same position should his client’s latest claim fail.
32On the latest, best evidence before the court (after the Respondent made her admissions at the trial), Ms. Reggimenti’s allegations, upon which Reilly J. relied to make the original order are without any evidentiary basis. I am of the view that had he known the true facts, Reilly J. would very likely not have made the non-dissipation order. In any event, the need for such a temporary order after five years with virtually no risk that the Applicants intend to flee this jurisdiction with the sale proceeds from this property has been entirely refuted.
33Accordingly, I vacated the Order of Lococo J.
34Costs will follow the success of this motion. Submissions are to be made according to the consent filed.
G.A. Campbell J.
Released: September 23, 2014
COURT FILE NO.: D/966/96
DATE: 2014-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Rosati
Linda Rosati
Applicants
– and –
Laura Reggimenti
Respondent
REASONS FOR Decision
G.A. Campbell J.
Released: September 23, 2014
/lr