Court File and Parties
COURT FILE NO.: FS-08-00338385 DATE: 20160411 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James C. Collie, Applicant AND: Gail D. (Collie) Teperman, Respondent
BEFORE: Kiteley J.
COUNSEL: Gary Joseph and Kristy Maurina, for the Applicant Kenneth A. Cole and Andrew Chris, for the Respondent
HEARD: in writing
Endorsement
[1] The trial is set to commence the week of May 9, 2016 for 6-7 weeks. At the Trial Management Conference held on March 11, 2016, the agenda for the ensuing TMC included a discussion as to whether the Respondent should lead evidence first (and have the right of reply) on some or all issues. Between March 11 and the continuation of the TMC on April 5, 2016, counsel had had some discussion on the point but had not reached agreement. Mr. Joseph takes the position that the Respondent ought to lead her evidence first and have right of reply. Mr. Cole takes the position that the Applicant ought to lead his evidence in the ordinary course as Applicant. During the TMC on April 5, I raised the question whether as a TMC judge, I had jurisdiction pursuant to the Family Law Rules to make that decision. Following a brief recess to review the Rules, counsel did not agree on the jurisdictional issue. I directed counsel to make written submissions which I have received. I noted that if I held that I had jurisdiction, I would invite brief written submissions as to what order I should make.
[2] Rule 2 provides that the primary objective of the Rules is to enable the court to deal with cases justly which includes:
- (a) ensuring that the procedure is fair to all parties;
- (b) saving expense and time;
- (c) dealing with the case in ways that are appropriate to its importance and complexity; and
- (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[3] The court is required to apply the Rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. The court shall promote the primary objective by the active management of cases.
[4] Rule 1(7.1) provides that a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case and the power to make such an order is in addition to any other power to make an order that these rules may specify in the circumstances and exists unless these rules expressly provide otherwise.
[5] Rule 1(7.2) provides that for purposes of promoting the primary objective the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including orders as follows:
- limiting the number of witnesses: subrule (f)
- that a witness give all or part of his or her evidence by affidavit or another method not requiring the witness to attend in person: subrule (i)
- that oral evidence be presented, or that any oral evidence be subject to a time limit: subrule (j)
- identifying the issues to be decided at a particular hearing: subrule (n)
- that a trial be limited to a specified number of days and apportioning those days between the parties: subrule (q).
[6] As indicated in subrule 1(7.4), an order made under subrule 1(7.2) respecting how a trial is to proceed applies unless the trial judge orders otherwise.
[7] Rule 17(6) establishes that the purposes of a trial management conference include the following:
- arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate: subrule (b)
- deciding how the trial will proceed: subrule (c)
- ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial: subrule (d).
[8] On the discrete issue before me, neither counsel referred to any case decided since the amendments to the Family Law Rules in 2015.
[9] I am satisfied that, pursuant to rule 1(7.2), rule 2, and rule 17(6) a Trial Management Conference Judge has the jurisdiction to make an order as to the sequence in each party will lead evidence for these reasons:
- (a) it is in keeping with the primary objective of the Family Law Rules that the TMC judge have the jurisdiction to make such an order so as to ensure that appropriate court resources are given to the case while taking account of the need to give resources to other cases;
- (b) for purposes of promoting the primary objective the court may make such orders respecting procedural matters as are just, including an order as to how the case will proceed and such orders may be made at any time during the case;
- (c) the Family Law Rules do not prohibit the making of such an order at a Trial Management Conference and is in keeping with the specific enumerated orders;
- (d) it is consistent with subrule 17(6) (c) that deciding how the trial will proceed includes deciding which party will proceed first and have the right of reply;
- (e) it is consistent with the expectations in Part 2 of the Trial Scheduling endorsement at paragraph 7 that the TMC judge will address the order of presentation of witnesses;
- (f) the order of presentation at trial is largely a procedural order which is consistent with the expansion of procedural orders contemplated by the 2015 Family Law Rules amendments;
- (g) it is in keeping with the direction by the Supreme Court in Hyrniak v Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87 to expand the role of judges prior to trial to enable them to craft trial procedures that will resolve the dispute in a way that is sensitive to the complexity and importance of the issues, and reduce the costs of litigation.
Order
[10] A Judge at a Trial Management Conference has the jurisdiction to make an order directing the sequence in which each party shall lead evidence at trial.
[11] By April 14, 2016 at 10:00 a.m. each party shall provide written submissions not exceeding 3 pages as to whether this court should exercise that jurisdiction in this case.
[12] The date in paragraph 15 of the endorsement dated April 7, 2016 is extended to Monday, April 18, 2016 at 4:00 p.m.
Kiteley J. Date: April 11, 2016