Court File and Parties

Court File No.: DC-16-127-00MML FS-13-77930-00 Date: 2017 01 10

Superior Court of Justice - Ontario

Re: GHASSAN KASHAT - and – WIJDAN KASHAT

Before: LeMay J.

Counsel: P. Buttigieg, Counsel for the Applicant T. Roll, Counsel for the Respondent

Endorsement

[1] This is an application by the Applicant, Ghassan Kashat for leave to appeal from the decision of Snowie J. dated October 19th, 2016. In that decision, Snowie J. made a number of Orders relating to and flowing from the Applicant’s failure to provide his expert report in a timely way.

[2] For the reasons that follow, the application for leave to appeal is denied.

Background Facts

a) The Expert Reports and the Timetable

[3] This case is scheduled for a trial that is supposed to proceed on the blitz list this month. As a result, the parties attended on a Settlement Conference before Baltman J. on June 17th, 2016. At that time, Baltman J. noted the following with respect to experts:

Both parties have or will be retaining experts wrt (1) tracing (2) income valuation and (3) medical disability.

The Husband has undertaken to deliver all 3 reports by July 30th. The Wife will have until Sept. 30th to deliver any responding reports.

[4] It was clear that the Applicant’s expert reports were due by July 30th, 2016. It is also clear that they were not provided in a timely way. Indeed, the Applicant’s expert report was not delivered to the Respondent’s counsel until September 30th, 2016, and a complete copy was not delivered until sometime in early October, as the original copy was, according to the Respondent’s materials, cut-off and not complete.

[5] In her trial management conference brief, the Respondent asserts that the Applicant’s counsel and his expert did not provide any explanation for the delay in completing and providing the report between July 29th, 2016 and September 30th, 2016, even though an explanation was sought. I see nothing in the Applicant’s materials challenging this assertion.

[6] As a result, the Respondent completed her responding expert report in time for the deadline of September 30th, 2016. The Respondent also requested additional information from the Applicant, including the information that the Applicant’s expert had relied upon to complete his report. This information was not provided before the Trial Management Conference, and the Applicant did not consent to the adjournment request. As a result, the TMC proceeded on October 19th, 2016.

b) The Trial Management Conference

[7] Each party filed a TMC Brief. The Applicant’s brief contains the following request:

Unfortunately, the task at hand proved more complex and time-consuming for Mr. Carnegie, and his report was not delivered to the Husband’s lawyer until September 30, 2016, at which time the Report was immediately delivered to the Wife’s counsel in electronic format. The delivery of this report is in accordance with Rule 23(23) of the Family Law Rules, i.e the report has been delivered at least 90 days prior to the anticipated start date for the Trial in this matter, which will not be until the middle of January, 2017, as per the endorsement of Justice Baltman.

The Wife’s counsel has indicated to the Husband’s lawyer that she will be opposing the filing of the Husband’s expert report, because it was delivered outside of the time limit set by Baltman J. on consent. The Husband seeks an Order at the trial management conference in accordance with Rule 1(7.2) and Rule 17(8)(b.1) of the Family Law Rules, permitting this expert report to be filed in the Trial Record in the ordinary course notwithstanding it was delivered to the Wife`s lawyer on September 30, 2016. There is no prejudice whatsoever to the Wife regarding this matter. The Husband regards the Wife’s lack of co-operation on this routine and straightforward request, to be just another example of her unreasonableness all around and desire to delay the resolution of this matter (the Husband believes the Wife is looking to avoid this matter going to Trial in the January, 2017, blitz period).

[8] The Applicant’s submissions conclude with a request to have the timelines in the Order of Baltman J. extended pursuant to Rule 3(5) of the Family Law Rules.

[9] In her TMC, the Respondent opposed this extension on the basis that she would suffer prejudice, in part because she had already completed her responding valuation report in accordance with the deadlines imposed by the Order of Baltman J. and that a further report would be necessary.

[10] This background led to the decision of Snowie J. dated October 19th, 2016. Snowie J. found that the Applicant had breached the Order of Baltman J. and had served the Respondent with his expert’s report late, and without all of the necessary documentation associated with the report. Snowie J. found that this had created undue hardship for the Respondent. Snowie J. also found that the various documents should have been provided to the Respondent for her expert by July 30th, 2016.

[11] Based on those findings, Snowie J. made the following Orders:

1. The Applicant/Husband, Ghassan Kashat (“Husband”), shall provide to the Respondent/Wife, Wijdan Kashat (“Wife”) within 10 days of today’s date all the documents requested by the Wife and/or all the documents relied upon by his expert for his expert report. If for any reason the Husband fails to comply with the above order at his expense within the said 10 days, the trial date in January, 2017, shall be vacated and the Husband shall be subjected to costs. The trial date will then be rescheduled through the trial office in consultation with both counsel.
2. If the Wife’s expert is unable to complete his analysis for any reason on or before 40 days from this date and the Wife requires an adjournment of the trial, she shall be given that adjournment and the Husband shall pay costs to the Wife.
3. The Husband shall pay to the Wife the sum of $1,500.00 within 30 days for the costs of today.
4. The Husband shall pay to the Wife her unnecessary costs yet to be incurred for a supplementary expert report with respect to the review and comment on his expert report that should have been served by July 30, 2016, but was not served until September 30, 2016, due date of her report. It is expected that this second unnecessary report costs will be no more than $5,000.00, to be paid by the Husband forthwith upon completion.

[12] These Orders were challenged by the Applicant on the basis, inter alia, that Snowie J. breached procedural fairness by not giving the Applicant the opportunity to be heard, and exceeded her jurisdiction by granting these Orders. In addition, the Applicant asserts that the final Order is an “interim disbursement.”

[13] I note that the TMC was held in-court and a reporter was present. Mr. Buttigieg requested the transcript of the hearing. Snowie J. advised that there was no official transcript, as the reporter was simply there to prepare notes for the judge’s use. The Applicant brought a motion seeking release of this transcript, which was denied by Tzimas J. on November 24th, 2016.

[14] With these facts in mind, I now turn to the legal analysis.

Analysis and Decision

a) The Test for Leave to Appeal

[15] The test for granting leave to appeal under the Family Law Rules is the same test as set out in the Rules of Civil Procedure. See, for example Bergen v. Sharpe, 2011 ONSC 1930 at paragraph 39. This takes me to Rule 62.02 of the Rules of Civil Procedure.

[16] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. Rules 62.04(a) and (b) set out the two separate tests under which leave to appeal may be granted. Leave to appeal may be granted if the conditions of either subsection are satisfied. Each subsection involves a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[17] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 ONSC 7405, 7 O.R. (3d) 542 (Div. Ct.).

[18] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 ONSC 40868, [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 ONSC 7652, 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 ONSC 2749, 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 ONSCDC 4842, 65 O.R. (2d) 110 (Div. Ct.).

c) The Characterization of Snowie J.’s Decision

[19] Most of the Applicant’s arguments under both branches of the leave to appeal test turn on the characterization of the decision of Snowie J. The Applicant characterizes Snowie J.’s decision as relief for the Respondent that was never asked for in the Respondent’s TMC brief. I disagree.

[20] It must be remembered that the Applicant failed to file his expert report in accordance with the Order of Baltman J. As a result, he was in breach of that Order, and it is arguable that he could have been denied the opportunity to rely on that expert’s report at trial.

[21] As a result, the Applicant was required to obtain an indulgence from Snowie J. in order to permit the late filing of his expert report. Indeed, the Applicant’s TMC acknowledges this fact by stating that he is seeking an order to permit the filing of this report in the Trial Record.

[22] I do not read Snowie J.’s decision as being anything other than the terms under which the Applicant will be permitted to file his expert report as part of the Trial Record. Snowie J.’s decision is responsive to the Applicant’s request for a variation of Baltman J.’s Order.

b) Rule 62.02(4)(a)

[23] This ground may be easily disposed of. In order to satisfy the test for leave to appeal under this section, the Applicant must demonstrate that there are conflicting Court decisions on this issue.

[24] In support of that position, the Applicant directs my attention to Woodburn v. Woodburn, 2016 ONSC 6694. In that case, Emery J. set out a detailed and helpful analysis of the issue of interim disbursements. However, that case is not relevant to the issues raised by Snowie J.’s decision.

[25] The payment of up to $5,000.00 for a second expert’s report is not, in my view, an interim disbursement. Instead, it is recompense for “costs thrown away”. Under the Order of Baltman J., the Applicant’s expert report would have been completed by no later than July 31st, 2016. That report, along with the accompanying documentation, would have been in the Respondent’s possession two months before her report was due, and her expert would have been able to respond to that information.

[26] Instead, because the Applicant delayed in providing his report for two months, the Respondent will be forced to have a second report prepared. It is in that context that the Order of Snowie J. for the costs of the second report arise. These costs are extra costs that the Respondent is incurring because of the Applicant’s failure to comply with a Court Order, and not an interim disbursement. As a result, there is no conflict between this decision and Woodburn, supra.

[27] The Applicant’s leave to appeal application fails under Rule 62.02(4)(a).

Rule 62.02(4)(b)

[28] Under this section, leave to appeal will be granted only if the Applicant can satisfy the Court that there is good reason to doubt the correctness of Snowie J.’s decision and that it raises an issue of general or public importance.

[29] I start with the question of whether there is good reason to doubt the correctness of the decision. Key to the Applicant’s position is his claim that Snowie J. exceeded her jurisdiction under the Family Law Rules. I reject that position.

[30] Rule 17(8)(a.0.1) of the Family Law Rules clearly states that, at a TMC, the presiding judge may make an order respecting “the use of expert witness evidence at trial or the service and filing of expert reports”. In this case, the Applicant was seeking to have the previous Order of Baltman J. varied to permit him to file his expert report late. Snowie J. made a procedural Order granting him the ability to file his report on terms.

[31] I have no reason to doubt the correctness of this Order. It is well within Snowie J.’s authority to make procedural Orders under Rule 17(8)(a.0.1) and it appears that her decision balances the interests of the parties. As a result, the first part of the test under Rule 62.04(4)(b) is not met.

[32] In this context, I should also deal with the allegation that there was a reasonable apprehension of bias against the Applicant on the part of Snowie J. because of her finding that the Respondent had suffered undue hardship. I reject this assertion. I return to the context in which this Order was made. The Applicant had breached the previous Order of Baltman J. He was seeking an indulgence from Snowie J., which he obtained with conditions because of the prejudice that had been suffered by the Respondent. I see nothing that would support an allegation of bias in those facts.

[33] There is also the issue of whether Snowie J. violated the doctrine of audi alterem partem by failing to provide the Applicant with the opportunity to be heard on the background and context of the issues relating to the timing and delivery of his expert report. I also reject this assertion. The Applicant was the one seeking the relief in this case. He had the opportunity, in his TMC brief, to outline all of the reasons why the expert report was late. As a result, any information that was not before Snowie J. is his responsibility.

[34] Therefore, the Applicant’s motion is also dismissed under Rule 62.02(4)(b).

Disposition

[35] For the reasons given above, the Applicant’s motion for leave to appeal is denied.

[36] The Respondent has suggested that costs be dealt with at the same time as the leave application and has provided her costs submissions. I have reviewed those submissions, which appear at paragraphs 41 and 42 of her factum. I accept those submissions as the Respondent’s submissions on costs, but note that a bill of costs is also needed. The Respondent is to serve and file a bill of costs, and any offers to settle, within seven (7) days of the release of this decision.

[37] The Applicant will have seven (7) days from the receipt of the Respondent’s bill of costs to provide his costs submissions, which are not to exceed two (2) double-spaced pages, exclusive of offers to settle, bills of costs and any case-law.

[38] There shall be no reply submissions on costs without my leave.

LeMay J. DATE: January 10, 2017