CITATION: Anderson v. McWatt, 2015 ONSC 1340

COURT FILE NO.: 00FP-255355FIS

DATE: 20150227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Anderson, Applicant

AND:

Roger McWatt, Respondent

BEFORE: Kiteley J.

COUNSEL: Patrick Schmidt for the Applicant

Self-represented Respondent

HEARD: February 23, 2015

ENDORSEMENT

[1] This was the continuation of the Trial Management Conference. The agenda for this conference was contained in paragraph 46 of the endorsement from the last TMC on January 23, 2015.[^1]

[2] The timing of events was discussed tentatively during the TMC. I have modified the timetable as discussed to accommodate a settlement conference.

Endorsement paragraph 46(a): Compliance with deadlines in paragraphs 43, 44 and 45

[3] As anticipated by paragraph 43, Mr. McWatt did provide to Mr. Schmidt the proposed amendment to include in his Answer and Counter-Petition a claim for occupation rent with respect to 40 Ellis Park. Mr. Schmidt advised Mr. McWatt in writing that it was necessary to distinguish among the first, second and now third amendment by underlining. By the conclusion of this TMC, Mr. McWatt had produced a properly underlined proposed amendment. Mr. Schmidt agreed to sign the consent to allow the amendment. Mr. Schmidt has 20 days from service of the Amended Answer and Counter-Petition to serve and file an Amended Reply.

[4] As anticipated by paragraph 44, Mr. McWatt confirmed that it was not an expert report and therefore did not serve it. He did amend his Supplementary Affidavit of Documents which he had not yet served because I had not required him to serve an amendment for that purpose.

[5] As anticipated by paragraph 45, Mr. McWatt had delivered the original copies of Ms. Anderson’s personal tax returns and banking documents in Ms. Anderson’s name that are in his possession. Mr. Schmidt was not able to confirm that he had received all of such documents because the covering letter did not so indicate and those items were not in the Supplementary Affidavit of Documents which Mr. McWatt had served in January.

Endorsement paragraph 46(b)

[6] Mr. Schmidt confirmed received of the experts’ reports including the cv and acknowledgement of independence.

[7] Mr. McWatt referred again to the report of Dr. Olearczyk dated April 24, 2012 referred to in paragraph 12 of the endorsement dated February 18, 2015[^2]. Mr. Schmidt had serve a notice pursuant to s. 52 of the Evidence Act. Mr. McWatt had asked for and received hospital records. He asked the court for advice as to whether he could include the hospital records in his Supplementary Affidavit of Documents and whether references to their daughter could be redacted. Mr. Schmidt informed him that he could serve notice of introduction of business records pursuant to s. 35 of the Evidence Act. Mr. McWatt committed to doing so by March 6, 2015. Mr. Schmidt opposed the proposed redaction.

Endorsement paragraph 46(c)

[8] Mr. Schmidt confirmed service of the Marino expert report dated January 15, 2015 with cv and acknowledgment of independence.

Endorsement paragraph 46(d)

[9] As indicated above, Mr. Schmidt is consenting to the amendment of the Answer and Counter-petition to make a claim for occupation rent. Mr. McWatt asks that he and two local real estate agents have access to the matrimonial home to assess value and to determine the rental value for the last 15 years. The Applicant does not consent. I have previously made an order that no motions may be brought. Mr. McWatt will not have access as requested.

Endorsement paragraph 46(e):

[10] As indicated in paragraphs 18 and 19 of the endorsement dated February 18[^3], Mr. McWatt wanted to include as an issue for trial 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.

[11] It is not necessary for Mr. McWatt to amend his Answer and Counter-Petition in order to include that as an issue for trial. However, he must provide particulars.

Endorsement paragraph 46(f)

[12] In my endorsement dated October 22, 2014 I directed that both parties must serve and file notice of business records by January 15, 2015. Mr. Schmidt confirmed that the only notices pursuant to the Evidence Act are the notice he served with respect to the report of Dr. Olearczyk and the notice that Mr. McWatt intends to serve with respect to hospital records.

Endorsement paragraph 46(g)

[13] Mr. McWatt includes the following witnesses whom he is considering calling:

Witness

Topic

Estimate of

Examination in chief

Roger McWatt

All issues

1.5 days

Jeffrey Marino

Value of shares

1 day

James Londos

Value of 28 Atlantic Ave,

234 Hillsview, 330 Eagle

1 hour

Keith Doxsee

Accountant for McWatt Anderson

Design Consultants Inc., McWatt

& Associates Inc., Stratus Development

Corporation

3 hours

Reg McLean

Lawyer involved in various transactions

2 hours

Steven Goodman

Former Accountant for McWatt Anderson

Design Consultants Inc.

TBD

Cheryl Rogalsky

Accountant who worked with Steven

Goodman

TBD

Kim White

Accountant who worked with Steven

Goodman

TBD

Max Tang

Former bookkeeper for McWatt Anderson

Design Consultants Inc.

TBD

Bryan McWatt

Brother of Respondent – McWatt Anderson and Stratus; construction of 28 Atlantic; shareholders’ loans

TBD

Rhonda MacInnis

Former office manager/bookkeeper of

McWatt Anderson Design Consultants

Inc.

TBD

Ha Quach

Former administrator/bookkeeper of McWatt

Anderson Design Consultants Inc. and McWatt & Associates Inc.

TBD

Lorraine McWatt

Respondent’s mother – child care; spousal support; bookkeeping

TBD

Terry McWatt

Respondent’s father – construction on all properties

TBD

Paul McWatt

Respondent’s brother – difficulties in retrieving

Respondent’s personal possessions; construct at 28

Atlantic

TBD

TOTAL TIME

Assuming 1 day = 5 hours

18 hours

[14] In addition, the Respondent has provided a list of witnesses he may call, “subject to the Applicant’s evidence at Trial”. Those witnesses are as follows:

(a) Sue McWatt

(b) Susan Bradley

(c) Jessie John

(d) Lisa Esperanza

(e) Meriel Hosty

(f) Peter Pitchford

(g) Debbie Issacs-Lawrence

(h) Other former clients, lawyers and employees.

[15] As indicated in paragraph 31 of the endorsement dated January 13, 2015[^4] each party is entitled to use up to 10 court days calculated as 5 hours per day or 50 hours, including reply evidence, if any; and including opening statements and closing submissions. I urge Mr. McWatt to refine his list of witnesses because he cannot call all of them.

[16] In the list of witnesses that Mr. McWatt prepared for this TMC, he seems to think that the witnesses whom he proposes to be found to be experts will file their various reports as exhibits. I pointed out again to Mr. McWatt (as I had done in paragraph 24 of the February 18, 2015 endorsement)[^5], that the report is typically not made an exhibit unless both parties agree and the judge so orders. Mr. Schmidt had indicated that he will not consent to any of the reports of experts being admitted as exhibits at the trial. I reinforced this point and confirmed that if a document is not made an exhibit, it will not be read or considered by the trial judge.

[17] Given the lengthy list of witnesses, many of whom Mr. McWatt can realistically not call because there will not be enough time in his allocation of 50 hours, there is no point in requiring him to prepare affidavits of the examination in chief of witnesses.

[18] In the list of witnesses that Mr. McWatt prepared for this TMC, he described all except Marino and Londos as “fact witness”. Several are accountants and one is a lawyer. I pointed out that simply because he describes them as fact witnesses does not mean that the trial judge will agree. It may be that he is calling these witnesses to give opinion evidence for which no expert report has been prepared. The trial judge will make that ruling.

Endorsement paragraph 46(h)

[19] Mr. Schmidt wants to question Mr. McWatt for 2 hours primarily arising from answers to undertakings given at his questioning in October. Mr. McWatt wants to question Ms. Anderson for 2 hours but does not want to do so until I have released the ruling on the remainder of matters outstanding from the motion that I heard on September 8, 2014. As indicated in the endorsement dated February 18, 2015[^6] at paragraph 30, that will be the subject of a separate endorsement.

[20] During the exchange on this point, Mr. McWatt wanted to postpone attending for his questioning until I had made a ruling on the remaining issues with respect to Ms. Anderson’s evidence. The two are not related. I see no point in delaying his attendance because there is an outstanding issue with respect to Ms. Anderson’s questioning.

[21] There is however another aspect which affects the timing of his questioning, namely the completion of his Supplementary Affidavit of Documents.

Endorsement paragraph 46(i)

[22] In my endorsement dated October 22, 2014, I directed both parties to serve a Supplementary Affidavit of documents by January 15, 2015. Mr. McWatt met that deadline. Mr. Schmidt missed it by a few days.

[23] As indicated in the TMC held on January 23, 2015[^7], there was some discussion about the Supplementary Affidavits of Documents and hence it was on the agenda for the continuation of the TMC on February 23. At this TMC, Mr. Schmidt listed a number of points that he described as deficiencies in Mr. McWatt’s Supplementary Affidavit of Documents that included examples of documents that were known to be in his possession which were not included in his Supplementary Affidavit of documents; improper descriptions of documents; inadequate descriptions of documents; missing Schedule B and Schedule C; refusal by Mr. McWatt to produce copies of documents which Mr. Schmidt had requested.

[24] Mr. McWatt described the process of document disclosure as “whack a mole”. He is frustrated because he has the 500 boxes (to which reference was made at paragraphs 22 and 35(i) of the endorsement dated January 13, 2015), his former lawyers recently gave him in total 9 boxes of documents), and he has already produced hundreds of documents. I cannot give him legal advice as to relevance or how to organize the documents and the Supplementary Affidavit of Documents. He said that he was doing his best to produce a reliable Supplementary Affidavit of Documents. He invited Mr. Schmidt to send him a letter listing the deficiencies to which he referred in this TMC. Since Mr. Schmidt had provided an extensive list, he declined to commit to writing a letter to that effect. As he pointed out, it is Mr. McWatt’s responsibility to comply with rules as to production of documents and at trial, it is unlikely that Mr. McWatt will be allowed by the trial judge to refer to any document to which he has not made reference in his Supplementary Affidavit of Documents.

[25] In discussing the completion of his Supplementary Affidavit of Documents, Mr. McWatt understandably wanted considerable more time to ensure compliance and he asked for April 13 as a deadline. However, completion of his Supplementary Affidavit of Documents was a pre-requisite to the attendance for questioning. During the TMC, consensus did not emerge as to when Mr. McWatt would serve his Supplementary Affidavit of Documents.

[26] Mr. McWatt had two concerns about Ms. Anderson’s Supplementary Affidavit of Documents: that she had grouped “all exhibits during questioning” as opposed to listing and describing each one; and she should add the bank and tax records that he had provided to her. Mr. Schmidt took the position that describing the exhibits as a group was acceptable because each had been properly marked and identified on the transcript. He did intend to amend his Supplementary Affidavit of Documents to include those recently provided by Mr. McWatt.

Endorsement paragraph 46(j)

[27] I had raised the issue that costs of the Trial Management Conferences should be reserved to the Trial Judge. Mr. Schmidt indicated he intended to ask for such an order once the TMC process had concluded. Mr. McWatt agreed.

Endorsement paragraph 46(k)

[28] I had raised the prospect of scheduling a settlement conference on the issue of Atlantic only. The question of ownership and value of this property has occupied a considerable amount of time in recent years as the pleadings have been modified. It appeared to me that as the issues surrounding this matter were solidifying, that it might be useful to isolate 28 Atlantic and have a settlement conference on that point. It seemed to me that if there were a productive discussion on that issue that it might assist in discussion about settlement of all issues.

[29] Mr. Schmidt was agreeable but he asked that the settlement conference also include a discussion about revenues that Mr. McWatt receives from all sources. He observed that a settlement conference on the combination of ownership and value of Atlantic as well as revenue (including from tenants) would assist in narrowing the issues for trial.

[30] Mr. McWatt says he has been anxious to settle matters for years and is frustrated by the lack of productive settlement discussions. He would be very interested in narrowing the issues as at least one of his prior lawyers urged. He was not enthusiastic about including the issue of revenue because that would lead to discussion about spousal support which he resisted. On the one hand he did see the value in a specific issue settlement conference but on the other hand he said it was hard to sever issues.

[31] As the discussion unfolded, it became apparent that whether a settlement conference was held on any issue was related to timing of other events. The trial is scheduled to start the week of May 11, 2015. There is still preparatory work to do. A settlement conference would not be productive until much of the preparatory work had been completed.

[32] During the TMC, I indicated that I would consider the views expressed and release this endorsement as quickly as possible.

[33] As indicated in prior endorsements, this case has been high conflict throughout the 15 years of its existence. There have been settlement conferences. But none since the pleadings have been finalized. It is in keeping with the primary objective in rule 2(2) to (5) that the court must afford opportunities to at least explore settlement and narrow the issues, even if settlement is not achieved. I had suggested that the settlement conference focus on the ownership and value of 28 Atlantic because of how that issue has evolved over the last several years. It seemed to me that a settlement conference would create an opportunity for a critical analysis of the positions that each party takes. However, I do agree with Mr. Schmidt that the issue of the revenue available to Mr. McWatt, including the question of rental income from 28 Atlantic, also deserves specific attention. For that reason, the settlement conference will focus on those issues, as indicated below.

[34] I will establish a timetable that leads to a settlement conference at the earliest opportunity. I appreciate that Mr. McWatt awaits the ruling on the remaining disclosure issues and I will release that as soon as possible.

Endorsement paragraph 46(l)

[35] As indicated in paragraph 46(l), there are many procedural steps to be taken in the weeks leading up to the trial. Mr. McWatt queried whether the court would order that the parties serve Requests to Admit and reach an Agreed Statements of Fact. I do not make an order for a Request to Admit but both parties are at liberty to do so. If an Agreed Statement of Facts materializes from Requests to Admit no doubt the trial judge will be assisted.

Endorsement paragraph 46(m)

[36] Mr. Schmidt asked for another TMC to monitor compliance with the steps yet to be taken and particularly the Supplementary Affidavits of Documents.

ORDER TO GO AS FOLLOWS:

[37] On consent, Mr. Schmidt will sign the consent to allow Mr. McWatt to amend his Answer and Counter-Petition to include a claim for occupation rent. By March 4, 2015, Mr. McWatt shall have the amendment made and then served on Mr. Schmidt. The Applicant has 20 days from service of the Amended Answer and Counter-Petition to serve and file an Amended Reply.

[38] If Mr. McWatt does intend to rely on the hospital records discussed at this TMC, then on consent, by March 6, 2015, Mr. McWatt shall service notice of introduction of business records pursuant to s. 35 of the Evidence Act without redaction.

[39] By March 6, 2015 Mr. McWatt shall send to Mr. Schmidt a letter detailing the specific orders and the paragraphs of those orders of which he asserts the Applicant is in default.

[40] The parties shall comply with the following timetable:

(a) by Monday March 16, 2015, Mr. Schmidt shall serve and file the Final Supplementary Affidavit of Documents of Ms. Anderson;

(b) by Monday March 16, 2015, Mr. McWatt shall serve and file his Final Supplementary Affidavit of Documents;

(c) by Friday March 27, 2015 Mr. McWatt shall attend for questioning not to exceed 2 hours;

(d) by Friday March 27, 2015 Ms. Anderson shall attend for questioning by Mr. McWatt not to exceed 2 hours;

(e) by Wednesday April 8, 2015 both parties shall serve and file Form 13.1 financial statement;

(f) by Friday April 10, 2015 both parties shall serve and file Form 13B net family property statement;

(g) by Wednesday April 15, 2015 Ms. Anderson shall serve and file a Trial Record in accordance with rule 23;

(h) on Wednesday April 22, 2015 from 2:00 to 5:00 p.m. the parties shall attend a Settlement Conference before me on the following issues: the ownership and value of 28 Atlantic; and the revenue available to the Respondent from all sources including 28 Atlantic on the following timetable:

(i) by Wednesday April 15, 2015, counsel for the Applicant shall serve and file a Settlement Conference Brief on those issues;

(ii) by Friday April 17, 2015, Mr. McWatt shall serve and file a Settlement Conference Brief on those issues;

(i) by Friday May 1, 2015 Ms. Anderson shall serve and file the following:

i. opening trial statement;

ii. draft order to be requested at the conclusion of the trial;

iii. document brief for reference at the trial which has an index and is tabbed and paginated;

(j) by Friday May 1, 2015, Mr. McWatt shall serve and file the following:

i. opening trial statement;

ii. draft order to be requested at the conclusion of the trial;

iii. document brief for reference at the trial which has an index and is tabbed and paginated;

(k) parties shall attend a final Trial Management Conference before me on Monday May 4, 2015 from 2:00 to 5:00 p.m. The agenda will include a review of the timetable above;

(l) by Monday May 11, 2015 both parties shall serve and file briefs of authorities.

[41] The costs of all of the Trial Management Conferences are reserved to the Trial Judge.

Kiteley J.

Date: February 2015

[^1]: Anderson v. McWatt, 2015 ONSC 1085 dated February 18, 2015

[^2]: Footnote 1

[^3]: Footnote 1

[^4]: Anderson v McWatt, 2015 ONSC 254 dated January 13, 2015

[^5]: Footnote 1

[^6]: Footnote 1

[^7]: Footnote 1