Anderson v. McWatt, 2015 ONSC 1565

COURT FILE NO.: 00-FP-255355FIS

DATE: 20150309

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Anderson, Plaintiff

AND:

Roger McWatt, Respondent

BEFORE: Kiteley J.

COUNSEL: Patrick Schmidt, for the Applicant

Self-represented, Respondent

HEARD: September 9, 2014 and January 23, 2015

ENDORSEMENT ARISING FROM MOTION AND

tRIAL mANAGEMENT cONFERENCE

[1] On September 9, 2014, I heard a motion and a cross-motion and delivered an endorsement dated October 14, 2014.[^1] As indicated in paragraph 58, I dismissed some aspects of the Respondent’s motion for disclosure and I left item 6 and items 23-35 of Tab GG as well as paragraph 5 of the motion to be considered at the Trial Management Conference after the Respondent had considered the contents of an affidavit filed by Mr. Schmidt on the eve of the motion.

[2] In anticipation of the TMC held on January 23, 2015, I received TMC briefs from Mr. Schmidt and Mr. McWatt summarizing the positions each took on those remaining issues.

[3] I have reviewed the list of items and the responses or lack thereof. The Respondent has withdrawn a few of them, presumably because since the list was created he has obtained the answers through questioning or other disclosure I have ordered or he has reconsidered and he no longer pursues them: item 23 (although he notes a supplementary request for information), item 25 (withdrawn), and item 27 (satisfied).

[4] I have the following general observations. First, the Respondent asks for documents and when not satisfied with the response, attempts to ask for further details and refinements. As an example, item 6 asked for “particulars with regard to the mortgage account and mortgage application on 30 Ellis Park Road”. The Applicant has produced statements for the line of credit which was obtained as a result of the order made November 19, 2009 which authorized the Applicant to borrow. The Applicant also provided a copy of a letter from the lawyer who acted concerning the refinancing. Mr. Schmidt had asked the financial institution for a copy of the application for credit and indicated that if the copy was provided from the financial institution, he would provide it to the Respondent. As of his January 2015 update, the Respondent had not received the application for credit but I accept that counsel for the Applicant will fulfill his commitment when received. The Respondent queries the lack of the loan application and pointed out that statements for December 2010 and January 2011 had not been produced. However, the Respondent went on to require information about (a) how the money that was advanced had been spent and (b) the details on children’s support. Neither of those items was in the original request. It is not appropriate in making disclosure requests to add on additional requests because the response did not cover the breadth of the disclosure which the Respondent anticipated but did not articulate.

[5] Second, some of the requested information is covered by other requests which I had dismissed. For example, item 33 and most of paragraph 5 were raised in other items that I dismissed.

[6] Third, some of the requested information is unnecessary given the answer to a previous request. For example, at item 23, the Respondent asked for a copy of all T4’s issued to any employees, including issued to the Applicant by Helen Anderson Design Associates from 2000 to date. A prior answer was that there were no employees. It follows that the request for T4’s for such employees was unnecessary.

[7] Fourth, at least one of the requests (item 31) concerned an appropriate request that the Applicant provide the evidence that she will be relying on to support her position with respect to ownership of 28 Atlantic Ave. and the other income properties. That request preceded the hearing of the motion on September 8. Subsequently, the Respondent questioned the Applicant and asked the questions. In his January, 2015 status column, the Respondent added: Who are the Applicant’s witnesses and what are the specific documents from the Applicant’s affidavit of documents on which she will rely. To the extent that the Respondent is entitled to answers to those questions, they have been provided at the Trial Management Conferences.

[8] Fifth, the Respondent perceives that the exercise of seeking disclosure and then following up is an exercise in advocacy in which he asserts the position he takes (such as the underemployment of the Applicant) and uses a larger font and bolding and underlining to demonstrate how he disagrees with the position taken on behalf of the Applicant. That is not the expectation in disclosure.

[9] I do not intend to review individually the remaining items (6, 23 - 35) and paragraph 5. They all fall into one of the above categories.

ORDER TO GO AS FOLLOWS:

[10] The request for the remaining items in the motion brought by the Respondent and returnable September 9, 2014 are dismissed, specifically: Tab GG item 6, 23 - 35 and paragraph 5.

[11] As indicated in paragraph 62 of the earlier endorsement, the Respondent shall pay costs on a partial indemnity basis to the Applicant with respect to this part of his motion for disclosure, with the amount to be fixed by the trial judge.

Kiteley J.

Date: March 2015

[^1]: Anderson v. McWatt, 2014 ONSC 5961