Anderson v. McWatt, 2015 ONSC 1085

COURT FILE NO.: FS-00-FP-255355FIS

DATE: 20150218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Anderson, Applicant

AND:

Roger McWatt, Respondent

BEFORE: Kiteley J.

COUNSEL: Patrick D. Schmidt, for the Applicant

Self-represented, Respondent

HEARD: January 23, 2015

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

[1] I heard a motion on September 9, 2014 and released an endorsement dated October 14, 2014.[1] The Trial Management Conference began on October 22, 2014 at which time I made a handwritten endorsement with directions as to the trial. The TMC continued on November 24, 2014 at which time I made a brief handwritten endorsement with a more detailed endorsement released January 13, 2015.[2] The TMC continued on January 23, 2015 at which time I made a brief endorsement adjourning the TMC to continue on February 23, 2015 and expecting this detailed endorsement to follow. The trial is set for the week of May 11, 2015 for 20 days.

[2] The agenda for the TMC on January 23, 2015 was as listed in paragraph 35 of the endorsement arising from the November 24, 2014 TMC[3]. During the TMC on January 23, 2015, I indicated to the parties specific deadlines that had to be met although I would not be releasing this detailed endorsement immediately.

[3] On January 23, both Mr. Schmidt and Mr. McWatt expressed some frustration about the continuation of the Trial Management Conference and the outstanding disclosure issues. In my endorsement arising from the motions heard on September 9, 2014 I outlined the extensive history of this case which started in 2000. The action is on the trial list and accordingly, neither party may bring motions (as I have previously ordered). The action has been highly contentious from time to time and, as a result, I intend to “micro-manage” trial preparation to ensure that this case is ready for trial on the date that I have ordered, namely the week of May 11, 2015 for 20 days.

[4] Before embarking on the agenda for the TMC, I reviewed briefly with the parties the status of service of their respective offers to settle as a follow up from the last TMC.

Paragraph 35(a) Review of Timetable for delivery of experts’ reports and supplementary affidavits of documents (both due by January 15, 2015):

[5] In my endorsement dated October 22, 2014, I ordered Mr. McWatt to serve all his experts' reports in accordance with the Rules no later than January 15, 2015.

[6] Mr. Schmidt confirmed receipt of all experts reports listed on page 6 of the Respondent’s Supplementary TMC Brief dated January 21, 2015 as follows:

(a) appraisal of 28 Atlantic Avenue as at Feb. 11, 1989 (date of marriage) and Sept. 1, 1997 (agreed separation date) prepared by Appraisal Services Ltd., dated March 5, 2010

(b) appraisal of 28 Atlantic Avenue as at February 2010, prepared by Appraisal Services Ltd., dated March 15, 2010

(d) appraisal of 330 Eagle Street as at September 1997 prepared by Appraisal Services Ltd., dated April 18, 2011

(e) valuation of McWatt Anderson Design Consultants Inc. as at September 1, 1997 prepared by Pettinelli Mastroluisi Valuations Inc., dated February 2, 2012

(f) valuation of McWatt Anderson Design Consultants Inc. as at February 11, 1989, prepared by Pettinelli Mastroluisi Valuations Inc., dated October 15, 2014

(g) valuation of Stratus Development Corporation as at September 1, 1997, prepared by Pettinelli Mastroluisi Valuations Inc., dated February 2, 2012

(h) valuation of Stratus Development Corporation as at February 11, 1989, prepared by Pettinelli Mastroluisi Valuations Inc., dated October 15, 2014

(i) Roger McWatt/McWatt Anderson Design Consultants/Stratus Development Corporation – determination of contingent Taxes & Disposition Costs, prepared by Jeff Marino, dated January 15, 2015.

[7] Mr. McWatt had also served appraisals of 28 Atlantic, 234 Hillsview and 330 Eagle St. as at December 10, 1995. That was the date of separation that he had advocated. However, as indicated in the endorsement by Goodman J. dated November 2, 2011, the parties agreed to an order that the valuation date for purposes of this trial is September 1, 1997 and accordingly valuations at December 10, 1995 are not relevant.

[8] At the TMC on January 23, 2015, Mr. Schmidt initially confirmed that he had received all of those reports. I overlooked asking him if Mr. McWatt had served all his reports “in accordance with the Rules”, namely together with a curriculum vitae of the author of the report and a certificate of independence. That will be on the agenda for the continuation of the TMC.

[9] Later in the TMC on January 23, Mr. Schmidt took the position that he had not received an expert report by Jeff Marino listed at paragraph 6(i) above. This will be clarified at the continuation of the TMC on February 23, 2015.

[10] Mr. Schmidt confirmed that he did not dispute the qualifications of Mastroluisi as an expert.

[11] On the basis of delivery of the foregoing experts’ reports, Mr. Schmidt confirmed that his client would not be serving any experts’ reports and he would not be calling any expert witness evidence at the trial.

[12] Mr. Schmidt did point out that on November 24, 2014 he had served on Mr. McWatt pursuant to s. 52 of the Evidence Act a letter dated April 24, 2012 from Dr. Oleaczyk. He takes the position that such a letter is not an expert report within the meaning of the Rules even if Dr. Oleaczyk is found by the Trial Judge to be qualified as an expert. I encouraged Mr. McWatt to educate himself on the implications of the s. 52 notice.

[13] Mr. Schmidt did confirm receipt of Mr. McWatt’s supplementary Affidavit of Documents. He has concerns about the extent to which it complies with the Rules. For example, the Affidavit of Documents refers to three deceased witnesses. As another example, at item 45, there is a document described as “income valuation for Roger McWatt”. He queried what it was and whether it was an expert report as to his income. Mr. McWatt was unable to respond. He pointed out that much of the Affidavit of Documents had been prepared by his then lawyer. He thought that that item was an excel spreadsheet prepared by Mr. Doxsee to reflect a 15 year time span. He said he understood better what a “valuation” meant. He volunteered that by January 30, 2015, he would serve it as an expert report (if that is what it is), or amend item 45 of the Affidavit of Documents.

[14] The agenda that I had set for this TMC on January 23 did not include a discussion about the extent to which the Affidavits of Documents complied with the Rules. As indicated above, Mr. Schmidt had concerns about Mr. McWatt’s Affidavit of Documents. I did not hear whether Mr. McWatt had concerns about Ms. Anderson’s Affidavit of Documents. I will include this as an agenda item for the continuation of the TMC at which time both may raise concerns.

[15] In my endorsement dated October 22, 2014, I directed both parties to serve a supplementary Affidavit of Documents by January 15, 2015. Mr. McWatt did so. Mr. Schmidt served his client’s Affidavit of Documents on January 20, 2015. Mr. McWatt objected to the late service. I accept Mr. Schmidt’s explanation for the late delivery. I observed that likely a similar courtesy would be afforded to Mr. McWatt if he missed a deadline between now and the trial date.

Paragraph 35(b) Review of detailed list of issues for trial and finalize the list of issues:

[16] Mr. Schmidt had prepared a detailed list of issues for trial with which Mr. McWatt agreed. Accordingly, the issues for trial are these:

(a) equalization of the parties’ net family property as at September 1, 1997 (agreed valuation date), including but not limited to the determination of the following components of the parties’ respective net family properties:

(i) ownership of 234 Hillsview Drive, Toronto, as at the date of marriage and valuation date;

(ii) ownership of 330 Eagle St., Newmarket, as at date of marriage and valuation date;

(iii) ownership and value of 28 Atlantic Avenue, Toronto, as at the date of marriage, valuation date and currently; (see also para 16(d) below)

(iv) the parties’ respective interests and the value of such in McWatt Anderson Design Consultants Inc. and Stratus Development Corporation as at the date of marriage and valuation date;

(v) notional costs of disposition of the parties’ respective interests in Stratus Development Corporation and McWatt Anderson Design Consultants Inc. as at the date of marriage and valuation date;

(vi) determination of the bank and investment accounts held by the parties as at the date of marriage and valuation date;

(b) determination of what prejudgment interest is owing by the Respondent to the Applicant on the equalization payment from September 1, 1997 to date of judgment;

(c) ownership and disposition of the parties matrimonial home located at 40 Ellis Park Road, Toronto and credit to the Applicant for payment of the debts (mortgage and line of credit interest) registered against title to the matrimonial home;

(d) ownership and disposition of 28 Atlantic Avenue, Toronto. Applicant has a constructive trust claim under the doctrine of unjust enrichment and joint family venture;

(e) the treatment and division of the net rental income generated from the rental of 28 Atlantic Avenue, Toronto from January 1, 2008 to trial;

(f) determination of prejudgment interest owing by the Respondent to the Applicant on rents which ought to have been paid to the Applicant from 28 Atlantic Avenue, Toronto;

(g) determination of the Respondent’s income from 2000 to trial, for purposes of determining his support obligations to the Applicant;

(h) determination of the amount of retroactive and prospective spousal support payable by the Respondent to the Applicant including payment of arrears of spousal support owing by the Respondent to the Applicant for the period January 1, 2000 to date of judgment;

NOTE: this includes a determination of the income of the Applicant although not specifically articulated by Mr. Schmidt in his list of issues;

(i) determination of the arrears of child support (section 3 and section 7) owing by the Respondent to the Applicant for the children of the marriage, namely Clair McWatt, born July 24, 1989 and Robin McWatt, born December 20, 1992 (hereinafter referred to collectively as the “children”) from January 1, 2000 to date of judgment;

NOTE: see paragraph 29 of my endorsement dated October 14, 2014[4] as to the termination of support for Clair no later than January 10, 2013;

(j) determination of the balance owing by either party to the other as their proper contribution to the children’s section 7 expenses from September 1, 1997 to date of judgment;

(k) determination of prejudgment interest owing by the Respondent to the Applicant on arrears of spousal support and child support; and

(l) costs of the proceeding.

[17] In addition, Mr. McWatt raised the issue as to his claim for occupation rent arising from the possession by the Applicant of the matrimonial home since valuation date. There was a discussion as to whether Mr. McWatt had failed to pursue an amendment in a timely way. In the end, Mr. McWatt agreed to provide to Mr. Schmidt by January 30, 2015 the text of his proposed amendment and Mr. Schmidt agreed to respond within 48 hours whether he would consent to the amendment.

[18] At item 7 of his list of issues, Mr. McWatt included the following:

Resolution of outstanding court orders regarding the return of the Respondent’s personal possessions (tools, clothing, etc.) and the division of the house and cottage contents.

[19] Mr. Schmidt pointed out that that issue had not been pleaded. I agree that it is not in Mr. McWatt’s Answer and Counter-Petition because the orders had not all been made at the time of filing his Answer and Counter-Petition. During this TMC, the question as to whether that was an issue for trial was left outstanding and will be on the agenda for the continuation of the TMC on February 23.

Paragraph 35(c) Review of witnesses that each party proposes to call and the issue on which each will give evidence:

[20] At paragraph 31 of my endorsement dated January 13, 2015[5] arising from the November 24, 2014 TMC I ordered that each party is entitled to use up to 10 court days calculated as 5 hours per day or 50 hours in total, including reply evidence, if any; and including opening statements and closing submissions.

[21] At the TMC on January 23, 2015 Mr. Schmidt re-affirmed his commitment to that allocation and advised that his only witness, subject to the s. 52 notice referred to above, is the Applicant. Given my order allocating time to each party, Mr. Schmidt need not advise as to the duration of his examination in chief or the estimated duration of any cross-examinations.

[22] In his Supplementary TMC brief dated January 21, 2015, Mr. McWatt listed the following witnesses with the “current time estimate for witness”:

(a) Jeff Marino 1 day

(b) Keith Doxsee 3 hours

(d) Jim Londos 1 hour

for a total of 1.5 days although it is more accurate to say it would be more than two days or 11 hours. However, at page 4 of his Supplementary TMC Brief, he indicated that “the following witnesses may be called, subject to the Applicant’s evidence at trial”:

(e) Steven Goodman

(f) Cheryl Rogalsky

(g) Kim White

(h) Max Tang

(i) Bryan McWatt

(j) Rhonda MacInnis

(k) Ha Quach

(l) Lorraine McWatt

(m) Terry McWatt

(n) Paul McWatt

(o) Sue McWatt

(p) Susan Bradley

(q) Jessie John

(r) Lisa Esperanza

(s) Meriel Hosty

(t) Peter Pitchford

(u) Debbie Issacs-Lawrence

(v) Other former clients, lawyers and employers.

[23] In addition, Mr. McWatt listed the names of 2 persons who were former clients both of whom had died in 2014.

[24] The list of witnesses does not include the experts who have provided reports referred to in paragraph 6 above, namely a representative of Appraisal Services Ltd. and Mastroluisi. I pointed out to Mr. McWatt that the purpose of the report of the expert is to notify the other party as to the substance of the evidence that that person will give and that it is not a substitute for the oral evidence of the expert witness. Indeed, the report is typically not made an exhibit unless both parties agree and the judge so orders. Mr. Schmidt indicated that he will not consent to any of the reports of experts being admitted as exhibits at the trial.

[25] In addition to those issues, Mr. McWatt’s list of witnesses includes Keith Doxsee although no expert report has been provided by him. It is not clear whether he will be called as an expert at the trial.

[26] Mr. McLean is a lawyer who was involved in certain transactions. It is not clear whether he is to be called as an expert witness or a fact witness. Mr. Schmidt confirmed that he has whatever documents are relevant with respect to the properties about which Mr. McLean may give evidence.

[27] The list of witnesses provided by Mr. McWatt is neither reasonable nor consistent with my earlier order that he has a total of 10 court days calculated as 5 hours per day or 50 hours in total including reply evidence, if any and including opening statements and closing submissions. I encouraged Mr. McWatt to education himself as to the evidentiary rules particularly governing expert witnesses.

[28] I will revisit Mr. McWatt’s list of proposed witnesses and estimated duration of examination in chief at the continuation of the TMC.

Paragraph 35(d) Whether the evidence in examination in chief of some of the witnesses should be presented by affidavit with the witness available for cross-examination and re-examination (if any):

[29] This issue is deferred until the list of Mr. McWatt’s witnesses is re-considered.

Paragraph 35(e) The position each party takes with respect to the items of disclosure remaining from the motion heard September 8, 2014 as listed in paragraph 33(d):

[30] This will be the subject of a separate endorsement.

Paragraph 35(f) Consideration of the Applicant’s request that I rescind paragraph 18 of my endorsement dated October 14, 2014 with respect to the endorsement of Goodman J. dated May 13, 2013:

[31] At paragraph 18 of my endorsement dated October 14, 2014[6], I referred to the endorsement of Goodman J. dated May 13, 2013. As indicated at paragraph 21 of my endorsement dated January 13, 2015[7], neither party had seen the endorsement of Goodman J. until I referred to it and they both asked for a copy. Mr. Schmidt asks that I redact paragraph 18. Mr. McWatt is insistent that it not be redacted. I will not review the rationale that each provided.

[32] Within hours of release of my endorsement dated October 14, 2014, both Mr. Schmidt and Mr. McWatt asked for a copy of the endorsement dated May 13, 2013. I accept that neither of them had received it until my assistant provided it to each of them. I am not prepared to redact it from my endorsement. It was included as part of my narrative of the endorsements in the continuing endorsement record. Its relevance, if any, may be considered by the Trial Judge.

Paragraph 35(g) Whether the parties consent to additional time for questioning and if so, for how long and on what subjects:

[33] Mr. Schmidt and Mr. McWatt each provided his views as to the issues on which further questioning might be pursued. They appeared to agree that if it happened, that two hours for each questioning would be appropriate.

[34] I did not make an order at the TMC on January 23. I will add it to the agenda for February 23, 2015.

Paragraph 35(h) Discussion about the prospects of an agreement to sell the former matrimonial home prior to the trial

[35] As a result of this discussion, there will be no agreement as to the terms upon which the matrimonial home might be sold prior to trial. I have prohibited motions of any kind before trial. The issue of the sale of the matrimonial home will be an issue for the trial judge as indicated in paragraph 41(c) below.

Paragraph 35(i) Unless he has already done so, establishing a timetable for Mr. McWatt to deliver to Mr. Schmidt any of the contents of the 500 boxes that are documents belonging to Ms. Anderson

[36] In paragraph 22 of my endorsement dated January 13, 2015[8], I referred to the 500 boxes of documents that Mr. McWatt had mentioned during his questioning in October 2014. At paragraph 35(i) I included this as an agenda for the January 23 TMC at which time Mr. McWatt agreed that, by January 30, 2015, he would deliver Ms. Anderson’s personal tax returns and any banking documents in Ms. Anderson’s name.

New Matters

[37] Paragraph 2 of my endorsement dated January 13, 2015[9] is as follows:

At the Trial Management Conference on October 22, 2014, the first priority was to set the trial date. Mr. Schmidt advised that he might not participate in the entirety of the trial but, for reasons of cost, he might provide “unbundled legal services” to the Applicant that might include opening trial statement, examination in chief of the Applicant, cross-examination of the Respondent and his witnesses, and closing submissions. Mr. Schmidt agreed that whatever decisions or orders were made while he was on the record, he would be responsible for compliance. Emphasis added

[38] At the TMC on January 23, Mr. Schmidt took issue with the last sentence and insisted that he had made no such agreement nor did he understand what it entailed. He said that the only agreement or undertaking which he gave to the Court was that he would remain on record for the Applicant through the Trial Management Conference process.

[39] According to my notes of the TMC on October 22, Mr. Schmidt agreed that he would be responsible for carrying out any directions made during the Trial Management Conferences that were the responsibility of the Applicant. He is obviously not responsible for directions that Mr. McWatt take certain steps.

ORDER TO GO AS FOLLOWS:

[40] The Trial Management Conference shall continue before me on Monday February 23, 2015 from 10 a.m. to 1:00 p.m.

[41] Subject only to:

• the possible claim by Mr. McWatt for occupation rent with respect to 40 Ellis Park, Toronto, and

• the issue raised by Mr. McWatt as to compliance by the Applicant with orders as to contents of the former matrimonial home and cottage

the issues for trial are as follows:

(i) ownership of 234 Hillsview Drive, Toronto, as at the date of marriage and valuation date;

(ii) ownership of 330 Eagle St., Newmarket, as at date of marriage and valuation date;

(iii) ownership and value of 28 Atlantic Avenue, Toronto, as at the date of marriage, valuation date and currently; see also para 41(d) below