Citation: Vasovich v. Montour Estate, 2017 ONSC 929

COURT FILE NO.: 16-740ML (Div. Ct.)

DATE: 2017-02-07

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dr. Inge Marie Vasovich, Applicant (Respondent in Proposed Appeal)

AND:

The Estate of Peter John Montour, Respondent (Appellant in Proposed Appeal)

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Ken Cole and Lily Ng, Counsel for the Respondent (Appellant in Proposed Appeal) Harold Niman, Sarah Strathopolous and Aaron Detlor, Counsel for the Applicant (Respondent in the Proposed Appeal)

HEARD: In Writing

SUPPLEMENTARY REASONS

[1] These reasons are supplementary to reasons released by me on January 27, 2017. In those earlier reasons, I dismissed the application for leave to appeal the costs ruling of Reid J. dated October 27, 2016.

[2] Rule 61.03(2) requires the moving party on a motion for leave to appeal to the Divisional Court shall file their materials within 30 days after the filing of the notice of motion for leave to appeal, which is required to be served within 15 days of the making of the decision sought to be appealed.

[3] Rule 61.03(3) provides that responding materials are to be filed within 15 days after service of the moving party’s materials.

[4] The above stated rule requires that the factum of both the moving party and the responding party consist of “concise argument”.

[5] The rule does not go on to provide for a right of reply materials.

[6] Unbeknownst to me, at the time I heard the motion for leave to appeal in writing, considered it, and issued my ruling, I was unaware that counsel had as between themselves twice in writing agreed to extensions of time for filing, which agreements also provided the timeline for filing reply materials. The first of such written agreements was outlined in a letter of January 4, 2017 to the registrar of the Divisional Court in Hamilton. The second was a letter dated January 12, 2017, again sent to the registrar of the Divisional Court in Hamilton.

[7] Neither of those documents were brought to the attention of the court in any way, nor were they placed in the application for leave materials placed before me.

[8] The extension for time to file reply materials as agreed upon by counsel ended on January 31, 2017 and on that date counsel for the would-be appellant estate filed materials.

[9] Immediately thereafter, both counsel agreed that I was not functus and agreed that I should consider the reply materials filed on behalf of the estate.

[10] Rule 61.03.1(11) provides that “if the responding party’s factum raises an issue on which the moving party has not taken a position in the moving party’s factum, that party may serve a reply factum.”, and ss.(13) the reply factum is to be filed within 10 days after service of the responding party’s factum.

[11] I have reviewed the reply factum which consists of 18 pages and 47 paragraphs supplemented by a supplemental brief of authorities, which contains five additional authorities said to supplement the 17 authorities originally provided.

[12] In my opinion, the reply material is not proper in that it does not deal with an issue raised in the responding party’s factum that had not been dealt with in the moving party’s factum. I have emphasized the word issue as I distinguish it from evidentiary references or legal arguments arising out of the same issue.

[13] The only “issue” on the impugned portion of Justice Reid’s costs order related to whether the respondent estate should be allowed to use the off-reserve property for the payment of costs, in circumstances where the applicant wife’s claim to be entitled to support and property rights in such property, and in circumstances where at the time of the decision, disclosure had not been made and in fact was ordered to be made as a result of the companion motion heard the same day.

Discussion

[14] In my opinion the reply factum does not address an issue raised by the responding factum on which the estate had not taken a position in its own factum. The whole thrust in the estate’s moving party factum is that the effect of Justice Reid’s order is that the estate is forced to financially compromise an on-reserve asset. The responding party’s factum contradicts this, but this does not entitle the estate to repeat and reargue its position, on the very issue it raised, by way of reply.

[15] The reply factum vehemently takes issue with the factual assertions in the respondent’s factum, and repeats its own version of the facts. Those are issues to be determined on the wife’s application.

[16] The responding reply also takes issue with the submissions as to the law as put forward in the responding factum. It does so in large part by reasserting many of the cases relied upon in the estate’s initial factum.

[17] The reply factum contains several submissions seeking to support the laudatory motives and righteous actions of the estate, by way of challenging the allegations to the contrary on the part of the applicant wife.

[18] In its reply factum, the estate repeats, and repeats again, the basic premise of its position throughout – that the Indian Act prevented the motion judge from refusing to agree that the estate be allowed to use non-reserve assets be used, at this stage of the proceedings, to satisfy a costs order.

[19] In my opinion the reply factum does not address new issues raised for the first time in the responding factum.

[20] Furthermore, in my assessment, the reply factum continues to ignore the thrust of the impugned portion of the cost order – that a decision on the merits is to precede an order as to the enforcement of any such decision, and that enforcement problems are those of the applicant wife. And further, those enforcement problems, such as they may be, are best assessed after the financial disclosure, as ordered by the motion judge, has been made.

[21] There is nothing in the reply material filed which leads me to a different result.

[22] The denial of leave to appeal is confirmed.

Released: February 7, 2017

C.Stephen Glithero J.