Campbell v Campbell, 2017 ONSC 2139

Court File and Parties

Court File No.: 14-62022ES Date: 2017/04/05 Superior Court of Justice - Ontario

Re: MARILYN CAMPBELL, Applicant And: KIM DAVID CAMPBELL, HOWARD CAMPBELL, RORY JOHN CAMPBELL, CHEIRE HELEN CAMPBELL, GINA MARIE CAMPBELL, CASEY GEORGE CAMPBELL and PATRICK KELLY CAMPBELL and the ESTATE OF HOWARD EDWARD CAMPBELL, deceased, Respondents

Before: Mr. Justice Calum MacLeod

Counsel: Kathleen McDormand, for the Applicant Ryan Garrett, for the Respondents except Cherie Campbell Cherie Campbell, in person

Heard: March 2, 2017

Endorsement

Introduction

1The applicant is currently 80 years old. She was the third wife of the late Howard Campbell and was married to the deceased for more than 30 years between September 29th, 1983 and his death on March 28th, 2014. The respondents are the children of the deceased and the step-children of the applicant. They are all independent adults.

2At issue in the application is the intent and interpretation of Howard Campbell’s will made September 30th, 1983. In the alternative to her rights under the will, the applicant also advances claims under the Family Law Act, Succession Law Reform Act and at common law.

3The issues presently before me are two competing motions. The first of these is a motion by the respondents seeking an order for production of documents. The second was referred to as a “bifurcation motion”. It is a motion by the applicant seeking an order for immediate scheduling of the issues relating to the will and postponing the adjudication of the alternative relief until it can be seen if it is necessary to proceed. Both of the motions were opposed.

4I reserved to give written reasons because there is significant risk of this proceeding becoming ensnared in a procedural quagmire and it raises important practice points. While both parties are correct in principle, they proceed from some ill-founded assumptions. The motions as structured fail to grapple with the procedural and practical needs of a dispute which is at its core a dispute over an estate.

5It was a procedural and tactical error for the applicant to amend the original application to simply add claims for substantive relief. At least some of those claims ought properly to be in a separate proceeding under the Family Law Rules. It appears this error was made to protect against a limitation argument and although it needs to be addressed, it is not fatal. With regard to the production demands, it is important to recognize that the proceeding is currently an application and not an action.

6Having regard to the imperatives set out in the “general principle” of the civil rules and of the “primary objective” in the family rules ¹, it is entirely appropriate for the court to give directions leading to efficient and effective adjudication of the entitlements of the widow and children under the will. To do otherwise runs a significant risk of engaging in disproportionate and unnecessary procedures while draining the estate of its value. This would not be in the public interest and would be to the detriment of all concerned.

7For the reasons that follow, I agree that the documents sought by the respondents are likely relevant to certain claims advanced by the applicant. But I also agree with the applicant that those are claims that may never have to be litigated. No purpose is served by imposing on both parties the costs of production and review because the primary question in dispute is the interpretation of the will. Furthermore, as I will explain, I do not regard this as a “bifurcation” case.

8It is in the best interests of the parties, of the estate, and of the administration of justice to make orders necessary to correct the procedural error, to repackage and sequence the issues in an efficient manner and to ensure that the meaning and validity of the will is decided as soon as possible.

The Background Facts and the Litigation to Date

9The deceased made a will immediately after his 1983 marriage to the applicant. While there is some evidence he might have been planning to update that will prior to his death, he never did so. Without a doubt the will suffers from significant drafting problems. It contains three seemingly incompatible bequests.

10Paragraph 3 (b) of the will directs his trustee or trustees “to pay my debts, funeral and testamentary expenses, and to transfer the residue of my estate to my wife, if she survives me for a period of thirty days, for her own use absolutely”. This appears to leave 100% of the estate to the applicant.

11Paragraph 3 (c) of the will directs the trustee or trustees “to deliver to my wife, for her use and enjoyment for life, all articles of personal, domestic and household use or ornament belonging to me at the time of my death … and on her death, to divide all such articles among my children ….” This appears to create a life interest in personal property to be later divided amongst the children.

12Paragraph 3 (d) of the will directs the trustee “to divide the residue of my estate equally between my wife (if she survives me for a period of thirty days) and my children, Kim, Howard, Rory, Cherie, Gina, Casey and Patrick, if then alive ….” Depending how this is read, it appears to either leave 50% of the estate to the applicant and 50% to be divided amongst the children or to leave each of the applicant and the respondents’ one-seventh of the estate.

13The only significant asset in the estate is the former matrimonial home in which the applicant continues to reside. The title was held solely by the deceased. The property was used by the applicant and the deceased as a bed and breakfast for a number of years and may be worth in excess of $1,000,000.00 although that will not be known with certainty until it is sold.

14It is the position of the applicant that if ordinary rules of will construction are applied, once the residue is disposed of the will is spent. In that case she is entitled to 100% of the estate but even if paragraph 3 (a) is ignored, paragraph 3 (d) should be read to give her 50% of the estate. She brought an application to interpret the will in this fashion.

15The children take the position that it was Howard’s intention to divide his estate equally seven ways and they have brought their own application for “rectification” to have the court rewrite the will to correctly mirror this intention. They argue that is the proper interpretation of paragraph 3 (d).

16In the event the applicant is only entitled to one-seventh of the value of the estate then it is possible she might be better off to relinquish her bequest under the will and instead to claim equalization under the Family Law Act, dependent’s relief under the Succession Law Reform Act or to claim a constructive trust over the home she still lives in on the basis of common law principles.

17In her original application, the applicant did not seek substantive relief under the Family Law Act or the Succession Law Reform Act. She commenced her application for interpretation of the will on September 18th, 2014. In that application she also sought orders extending the time within which alternative claims could be made. Section 2 (8) of the Family Law Act (FLA) provides for an extension of the time for making an equalization claim. Similarly s. 61 (2) of the Succession Law Reform Act (SLRA) permits a court to extend the time within which a dependent may advance a claim for support against the assets of an estate.

18An order was granted by Justice McLean on September 25th, 2014. By the terms of that order, the limitation period under the FLA was extended to 30 days after the court renders a decision on the interpretation of the will. That same order prohibited distribution of the estate until further order or consent. On January 29th, 2015 the respondents (with the exception of Cherie Campbell) brought a counter-application to “rectify” the will. None of the parties sought to invalidate the will.

19On February 11th, 2015 Justice McLean made a further order establishing a timetable for exchange of affidavits, for cross examination and for production of certain documents and files. On September 14th, 2015 Justice R. Smith made a detailed consent order appointing an estate trustee during litigation and providing for the orderly administration of the estate. Significantly that order provided for the parties to obtain further directions from the court as may be necessary and provided that if the real property was sold, the proceeds of sale would stand as security for any claims for equalization, support or constructive trust.

20In November of 2015 the parties appeared before me in my former capacity as master to obtain certain orders for production of lawyers’ files. This order was also on consent. To that point it appears there had been reasonable procedural collaboration but no date had been set for the hearing.

21On February18th, 2016 the applicant amended her notice of application to add the substantive claims under the FLA, SLRA and common law. Also for the first time, she included an alternative claim that the will be declared invalid (void for vagueness in effect) and she be entitled to receive her spousal entitlement under the resulting intestacy. It appears the reason for the amendment was to ensure that no aspect of these claims would be barred by the two year limitation period in the Limitations Act, 2002 ².

22In March of 2016 I made a further timetable order and fixed the date for the hearing of the application on September 15th, 2016. The timetable was not met and the hearing did not proceed.

23It is at this point that matters appear to have gone off the rails. They could have agreed to defer the alternative claims that the applicant had preserved but might not have to pursue. They could have sought further directions from the court. They could have entered into a “tolling agreement” to postpone the running of any general limitation period ³. Counsel for the applicant could have commenced a proceeding in Family Court and then sought to bring this application to a conclusion. She could even have sought an order staying the family proceeding in the interim.

24In pointing out these alternatives, I do not intend to criticize counsel. I am not privy to discussions they may have had or instructions they may have received. Be that as it may, it is abundantly clear, that however far apart the parties might be on the merits, there would have been benefit to procedural collaboration. I also note that Justice McLean was persuaded to exempt this matter from the requirement to mediate and with the benefit of hindsight I consider that unfortunate.

25The parties have now arrived in a position where there is an agglomerated application under Rule 25 and Rule 14 onto which has been grafted relief that should be pursued under the Family Law Rules. This can be untangled but it requires clear thinking. As I observed at the outset, the manner in which the motions were argued demonstrated quite the opposite. It was a mistake to presume that there were automatic disclosure and production obligations on the one hand and to be sidetracked by the jurisprudence relating to “bifurcation” on the other.

26To explain my decision and to properly address the procedural questions, it is necessary to briefly review the various means by which litigation proceeds before the Superior Court and the characteristics of each. Before proceeding however, I want to stress two points.

27The first point is one I made at the hearing. This is at its core estate litigation in which the reason for the dispute is the need for the court to determine the correct interpretation of an ambiguous will. In such cases it is not uncommon for the costs of the litigation to come out of the estate. Even if the ordinary costs rules are applied, the parties ought to be aware that it is in their own self-interest to streamline the litigation and to keep the costs down. There can be no guarantee at this stage who will be bearing those costs or how they will be allocated.

28The second point is an adage I am fond of repeating. Procedural rules are the “servants of justice and not its master”. That is to say that the Rules are not ends in themselves but exist to serve the ends of expeditious determination of legal proceedings in a manner that is fair. This is a case in which the issues straddle the boundary between estate litigation and family law. As a consequence the relief claimed engages Rules 14 and 75 of the Rules of Civil Procedure and also engages the Family Law Rules. This is confusing to lawyers and will be even more so to the litigants. The parties should be doing everything their power to avoid procedural gridlock and when they are unable to do so, the court has a duty to fashion an appropriate remedy.

Civil & Family Law Procedures in Ontario

29The Rules of Civil Procedure govern most civil proceedings in Ontario. They have been significantly revised in recent years but they are themselves the result of a major overhaul of civil procedure which took place in the 1980’s. One of the features of the “new” rules was to create two primary methods of commencing a legal proceeding – by “action” and by “application”. This is set out in Rule 14 which provides that ordinarily civil claims are commenced by “action” but in certain instances described in the rule, a party can proceed by “application”. One such situation is the determination of rights that rely upon the interpretation of a will. Rule 14.05 (3) reads as follows:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

30The distinction between an “application” and an action is this. An action is commenced by an exchange of pleadings, proceeds through documentary production and examination for discovery. The presumptive manner in which an action is adjudicated is by a trial. That is a hearing held in open court before a judge or a judge and a jury in which live evidence is ordinarily received through oral testimony.

31In an application, by contrast, the proceeding is commenced by a notice of application. It proceeds through an exchange of affidavit evidence and examinations out of court. The presumptive method of adjudication is for the parties to argue the case before a judge based on the affidavit evidence and the transcripts. All of the evidence is contained in a paper record ⁴.

32Neither of these categories are watertight. Summary judgment permits a party to persuade the court to decide an “action” on the basis of affidavit evidence while the judge hearing an “application” has the power to order trial of an issue or to convert the application to an action. The point I wish to stress is there is no presumptive right to a trial when the matter is proceeding by application and in an application parties are not required to prepare affidavits of documents ⁵.

33Certain estate matters are not dealt with by applications under Rule 14 but instead proceed under Rules 74 or 75. This includes applications for letters of administration (“letters probate”) or passing of accounts (Rule 74) and applications objecting to or revoking a certificate of appointment, applications to prove the validity of a will and motions and applications for directions in respect of estates (Rule 75). Applications under the latter rules do not follow a standardized procedure. In each case they require direction from the court concerning the procedures to be followed, disclosure obligations and (in this jurisdiction) a requirement to mediate.

34In contested estate proceedings pursuant to Rule 75, the court may define the issues to be decided and may direct the exchange of pleadings. The court may also devise procedures for bringing the issues before the court in summary fashion ⁶. There are no automatic discovery or disclosure obligations. These rules were first enacted as part of the Rules of Civil Procedure in 1995. They represent an updated version of the old Surrogate Court rules and were required because of the merger of the courts in 1990 ⁷.

35The Family Law Rules were enacted in 1999 and at that time Rules 69-71 of the civil rules were revoked. The intent of the new family rules was to implement a unified set of rules that applied to all family law proceedings in the Ontario Court of Justice, Superior Court of Justice or in the Family Branch of the Superior Court of Justice ⁸. It was part of the framework for the eventual province wide expansion of unified family court. The family rules also attempted to simplify the rules that applied to family proceedings and to introduce various less adversarial dispute resolution tools into the court process. Importantly, while the family rules impose certain standardized financial disclosure requirements, there is no automatic right to an affidavit of documents or to examination for discovery (“questioning”) ⁹.

36Pursuant to Rule 1.02 (1) 2 of the Rules of Civil Procedure, s. 21.8 (1) of the Courts of Justice Act, and Rule 1 (2) of the Family Law Rules, the family law rules and in locations such as Ottawa where there is a Family Court, that branch of the court, are given primacy in most family law matters. These provisions are mandatory. They include the following proceedings:

(a) under,

(i) the Change of Name Act,

(ii) Parts III, VI and VII of the Child and Family Services Act,

(iii) the Children’s Law Reform Act, except sections 59 and 60,

(iv) the Divorce Act (Canada),

(v) the Family Law Act, except Part V,

(vi) the Family Responsibility and Support Arrears Enforcement Act, 1996,

(vii) sections 6 and 9 of the Marriage Act, and

(viii) the Interjurisdictional Support Orders Act, 2002;

(b) for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement or family arbitration award;

(c) for a constructive or resulting trust or a monetary award as compensation for unjust enrichment between persons who have cohabited;

(d) for annulment of a marriage or a declaration of validity or invalidity of a marriage; and

(e) for appeals of family arbitration awards under the Arbitration Act, 1991.

37As is apparent from this list, the claim for equalization of net family property and the claim for constructive trust on common law principles are included and therefore they must proceed under the Family Law Rules. While a claim for support of a dependant under the Succession Law Reform Act is notably absent from the list, Rule 1 (5) of the Family Law Rules provides that if a case in Family Court combines a family case “to which these rules apply with another matter to which the rules do not apply”, the parties may agree or the court on a motion may order that the family rules apply to the combined case or part of it.

38The purpose of this brief review is simply to underscore that the current application does not comply with these procedural requirements. It seeks to combine applications under Rule 14 and 75 under the civil rules (under an Estates file number) and to combine those applications with claims that must be asserted under the family rules. Properly speaking the applicant should be advancing at least two and perhaps three separate proceedings which engage different procedures and processes. None of those involve automatic rights to documentary production or discovery as all of them require the court to consider how the claim can be most efficiently adjudicated.

39Procedural non-compliance is not fatal and can generally be cured. This engages the adage I mentioned in the introduction. The rules are the “servants of justice and not its master”. That is to say they are means to achieve a just result and are not ends in themselves. Rule 2.01 of the civil rules provides that failure to comply with these rules is an “irregularity and does not render a proceeding a nullity” nor shall the court “set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed” ¹⁰. This provision is not specifically replicated in the Family Law Rules but it is consistent with the primary objective. More importantly, it is dealt with in s. 110 of the Courts of Justice Act. That section provides that if a proceeding is commenced in the wrong court, it may be transferred to the correct court and will continue as if it had been commenced in the correct court. The concept of “nullity” has been largely abolished. Defects in procedure can and should be cured to the extent that it is just to do so.

The Bifurcation Motion

40This brings me to the motion to “bifurcate” the proceeding. Obviously the matters that should be proceeding in Family Court are appropriately dealt with under the Family Law Rules. Having regard to the provisions of s.138 of the Courts of Justice Act, which require multiple proceedings to be avoided if possible, the claim for dependent’s relief (which is in this case a claim for spousal support against the estate) would also be appropriately dealt with in that forum. If I make that order it will result in severing the contingent claims from the issue of interpretation of the will. I have no doubt that is the correct way to proceed.

41The respondents sought to rely on the decision of the Divisional Court in Bondy-Rafael v. Potrebic, 2015 ONSC 3655 ¹¹ to the effect that unless all parties consent, a party is entitled to have all issues determined in a single action. I do not agree that decision stands for such a universal proposition or prevents the granting of an appropriate remedial order.

42In the first place, Bondy-Rafael was rendered by a split court with a powerful dissent concurring in the result and it dealt with Rule 6.1 of the Rules. It is a decision that is intentionally restrictive in its application and it does not apply to the case at bar ¹². Insofar as the case stands for the proposition that Rule 6.1 of the Rules of Civil Procedure excludes any inherent jurisdiction to bifurcate an action, for purposes of this motion I do not have to decide whether that conclusion is binding upon me in similar circumstances. I would observe in passing that I prefer the analysis of Corbett J. to that of the majority. Justice Corbett’s analysis of the rule is not only consistent with current judicial trends but with the rationale for enacting the rule. As it happens I was a participant in all of the deliberations of the Rules Committee considering the recommendations of the Osborne Report. I am certain that it was never the intent of the Rules Committee to “occupy the field” or to restrict the inherent jurisdiction of the court ¹³.

43That is not to say that bifurcation should be lightly granted over the objection of one of the parties. Bifurcation may well result in efficiencies but that is not always the case. For example in a negligence case, the questions of liability and damages may appear to be distinct but frequently evidence of damages must be led to establish causation or foreseeability so the efficiencies may be illusory. In addition, if there is a jury notice, many people will argue that bifurcation fundamentally changes the nature of the trial and undermines the right to trial by jury. On the other hand, as the Supreme Court of Canada has stated in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 SCR 87, to make justice practical and accessible, a “culture shift” is required in which the conventional trial may give way to “proportional procedures tailored to the needs of the particular case” particularly since a conventional trial may not be a “realistic alternative for most litigants” ¹⁴. In short, in my view, the court should always be attuned to the possibility of finding efficiencies in any type of litigation ¹⁵.

44In any event, “bifurcation” is a misleading term for the order sought here. Strictly speaking “bifurcation” refers to the separation of a single trial into separate phases, such as liability and damages or to trial of threshold issues such as discoverability or breach of contract separate from the balance of the trial. The idea is that it is more efficient to have a short trial concerning an issue that might end the trial than to require the parties to endure the lengthy trial that might be required to prove the potentially academic question of damages ¹⁶.

45Bifurcation of a trial into phases is not the same thing as ordering separate trials of separate causes of action that have been joined into one proceeding. Rule 5 deals with joinder and relief against joinder. Rule 5.05 provides the court with great procedural flexibility when the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party. Bifurcation under Rule 6.1 is not the same as an order for separate hearings under Rule 5.05.

46Bondy-Rafael has no application to orders made under Rule 5 or any other rule which specifically empowers the court to order separate trials of various issues. The question under discussion by the Divisional Court was whether or not there was residual inherent jurisdiction in the absence of a specific enabling rule. There are other rules that specifically permit the court to order trial of separate issues in an action. The majority decision in Bondy-Rafael states clearly that it is not to be read as a restriction on the powers of a judge under Rule 20.05. It is important to note that the very same powers are available to a judge at a pre-trial under Rule 50. In the latter case they may be exercised as part of the trial management function and without a motion.

47All of this is academic in the case before me because the proceeding is an application and not an action. The court has ample authority to unbundle the issues contained in an application and to devise appropriate procedures. In any estate litigation, a party may obtain an order for directions pursuant to Rule 75 including issue management and procedural directions. As I alluded to earlier, applications under Rule 14 are governed by the procedure in Rule 38 and the application judge is specifically empowered to decide only part of the application and to order a trial of other issues. Under the Family Law Rules, an application must begin with a case conference which functions to some extent like a motion for directions.

48I conclude that there is no bar to an order separating the issues that have been improperly joined in this application and there is a duty upon the court to give directions as to how those matters are to be resolved. Given the relative simplicity of the will interpretation issue, the fact that it may dispose of the litigation, and the extensive (and expensive) disclosure that would be required to pursue the alternative claims, the most appropriate order is to sever the contingent claims from the application to interpret, rectify or invalidate the will and to transfer those other claims to Family Court.

The Production Motion

49The respondents are correct that if the applicant is proceeding with all of her claims, the requested documents are likely relevant and will have to be produced subject to a proportionality analysis. On the other hand, given the order I propose transferring those claims to Family Court, the production request is more appropriately dealt with under the procedures which apply in that forum and is premature.

50In any event I would be reluctant to order extensive and expensive production of documents in respect of claims that may be entirely academic if the interpretation of the will is achieved. That streamlined application can proceed in short order. If I had not considered it appropriate to transfer the equalization, constructive trust and support claims to Family Court and they remained under the civil rules, I would have directed that they proceed by way of action and I would have required the applicant to deliver a statement of claim.

51There has been a great deal of production made by the applicant prior to the motion. I will not order her to provide the additional documents requested by the respondents at this time. It would be appropriate to make an order that she take steps to preserve them in case they are required.

Conclusion

52It is clear that in amending the original application to advance the substantive alternative claims in the same proceeding, the applicant was simply seeking to preserve those rights in the face of a potential limitation period. To the extent that she was advancing claims which are in the exclusive jurisdiction of the family rules and the family branch, this was procedurally incorrect. The appropriate order is to transfer those aspects of the application to Family Court and to impose a brief stay of the proceeding so that the will interpretation issue can be decided as soon as possible.

53It follows that the demand for production of additional documents is premature. That demand should be considered through the lens of the Family Law Rules in due course. It would be appropriate to make a preservation order.

54The procedural morass was of the applicant’s making. The opposition to “bifurcation” however and the demand for immediate documentary production was disproportionate and misguided. As a consequence there will be no costs of the motion unless there was an offer to settle that I am not aware of and which ought to be considered.

Order

55There will be an order severing the claims for equalization, unjust enrichment and support from the application to determine the meaning and validity of the will. The severed issues are transferred to Family Court and leave is granted to proceed with the claim for support under the SLRA in the same proceeding. The clerk of the court is to assign a Family Court file number and place a copy of this endorsement in the file.

56The issues of the interpretation, rectification or invalidity of the will shall continue as an application under the Rules of Civil Procedure. As soon as possible counsel are to confer and seek agreement on a hearing date and the timing of any remaining steps required before the hearing. If counsel have not agreed to a timetable and obtained a new application date by the end of April, a motion for directions or a case conference under Rule 50.13 is to be brought before the master or a judge. Rule 77 will also apply to this application.

57The Family Court proceeding will be stayed until further order or agreement. If the stay is lifted, the applicant shall deliver a notice of application under the Family Law Rules within 15 days thereafter. The application shall be deemed to have been commenced on February 16th, 2016. The time under Rule 39 of the Family Law Rules will be extended to 12 months from the lifting of the stay.

58The applicant is to take steps to preserve all of the documents sought by the respondents in their notice of motion but the requirement to produce those documents will be determined under the Family Law Rules if appropriate.

59Subject to any offers to settle which the parties wish me to consider, there will be no costs of these motions.

60The motions are otherwise dismissed.

Mr. Justice Calum MacLeod Date: April 05, 2017

Footnotes

Footnotes

1. 1Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, Rule 1.04 (1) & (2) and Family Law Rules, O. Reg. 114/99 as amended, Rule 2 (2) & (3).
2. 2Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
3. 3Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, S. 22 (3).
4. 4To avoid confusion, it is worth noting that the term “application” has this meaning only under Ontario’s Rules of Civil Procedure. The term is used more generically in criminal proceedings where, as in most other jurisdictions, it is used synonymously with “motion”. By contrast an “application” under Ontario’s Family Law Rules has almost the opposite meaning. In a family law proceeding, it is an application which leads presumptively to a trial.
5. 5See Friends of Lansdowne v. City of Ottawa, 2011 ONSC 1059 & 2011 ONSC 2089 which discuss the different documentary production procedures in more detail. See Rule 38.09 for the material to be used on an application.
6. 6Rule 75.06 (3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
7. 7Prior to that date, many simple estate matters were dealt with in Surrogate Court while complex estate matters were dealt with in the Supreme Court. In 1990 the High Court of Justice (trial division of the Supreme Court) was merged with the District Court and Surrogate Court to create a single superior court of general jurisdiction.
8. 8By way of explanation, the Family Court is a branch of the Superior Court which unifies family jurisdiction previously exercised by each of the Ontario Court of Justice and the Superior Court of Justice at the superior court level. It does not yet exist in all parts of Ontario but Ottawa is a Family Court site.
9. 9See Rule 20 (3) & Rule 1 (7.2), Family Law Rules, O. Reg. 114/99.
10. 10Rule 2.01 (1) & (2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
11. 11Bondy-Rafael v. Potrebic, 2015 ONSC 3655.
12. 12See Bondy-Rafael v. Potrebic, 2015 ONSC 3655 @ para. 39.
13. 13One of the Osborne recommendations was to expand the power to order bifurcation while continuing to recognize that it remains an exception, not the rule. See Civil Justice Reform Project, Recommendations – “pre-trial and trial management”.
14. 14Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 SCR 87, see paras. 2 & 4 in particular.
15. 15See Rules 1.04, Rule 2, rule 2.1, Rule 20, Rules 50.06 & 50.07 (c) and Rule 54.02 as examples of rules which give the court authority to devise procedures other than a traditional trial in appropriate circumstances.
16. 16An instructive case in which I was ultimately involved as referee is Bayer Aktiengesellshaft v. Apotex Inc., (1995), 60 CPR (3d) 58 & (2001) 10 CPR (4th) 406 in which the liability phase took 10 years (with two trips to the Court of Appeal) followed by a reference on disgorgement of profits during which the case was ultimately settled.