OTTAWA COURT FILE NOS.: 12-56265 and 11-50312
DATE: 2018/06/21
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: Mildred McMurtry, Plaintiff (Court file no. 12-56265)
AND
John McMurtry and Mic Mac Realty (Ottawa) Ltd., Defendants
AND BETWEEN: John McMurtry, Plaintiff (Court file no. 11-50312)
AND
Jim McMurtry, Defendant
AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim (Court file no. 11-50312)
AND
John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Mark W. Smith for Mildred McMurtry (12-56265) Jeff Saikaley for John McMurtry (Both actions) and for Brenda McMurtry (11-50312) Daniel Mayo for Jim McMurtry (11-50312)
HEARD: June 20, 2018
TRIAL MANAGEMENT conference ENDORSEMENT
[1] Counsel appeared before me for another in a series of trial management conferences bridging the gap between the first and second of two trials in the above-noted actions. The most recent trial management conference was held in July 2017—almost a year ago. That conference was arranged because the parties were not ready to proceed with the trial of the 2011 action and the continuation of the trial of the 2012 action in the time frame originally anticipated.
[2] At the July 2017 trial management conference the matters addressed were (a) work being done by a number of experts jointly retained by the parties, and (b) the capacity of at least two of the individual litigants to give evidence at trial. The parties continue to require the assistance of the court in addressing those matters.
a) Experts’ Reports
[3] Welch LLP is jointly retained to review the finances and operations of Mic Mac Realty (Ottawa) Ltd. (“Mic Mac”) and provide a report with the results of that review. Welch is continuing its work in that regard. It has not, however, been able to complete its review and report because of ongoing inquiries, some of which allegedly remain unanswered, of John McMurtry and Brenda McMurtry with respect to various entries in Mic Mac’s financial records.
[4] The parties have differing views on the extent of the efforts made to date by John and Brenda in answering the inquiries from Welch. To ensure that Welch is in a position in the near future to complete its review work and report, the parties consent to a deadline being set by which John and Brenda have to answer the inquiries; failing which Welch will proceed with its work in the absence of any further information from those two individuals. That deadline is July 31, 2018, and is peremptory to John and Brenda.
[5] Prior to the trial management conference, Welch informed counsel for the parties that, depending on the nature and extent of the information it receives from John and Brenda, it may be necessary for Welch to prepare revised financial statements for Mic Mac for some or all of the years from 2012 forward. If so, then the revised financial statements are a pre-requisite to Welch completing its review and report of the finances and operation of Mic Mac. The parties therefore consent to a second, alternative deadline, for the completion of Welch’s review and report of the finances and operation of Mic Mac.
[6] The deadlines set for the work to be completed by Welch are September 28, 2018 (review report based on existing financial statements) and November 30, 2018 (review report based on revised financial statements).
b) Physical Frailty of the Parties
[7] Counsel for Jim McMurtry raised the issue of John’s failure to comply with item 1(a) of the order at paragraph 10 of the July 2017 trial management conference endorsement. That paragraph provides as follows:
A trial management conference shall be arranged by the Court to take place in September 2017, at which:
a) Counsel for John and counsel for Mildred shall report as to (i) the concerns, if any, regarding their respective client’s ability to testify at trial and (ii) alternative arrangements, if required, for the evidence of John and Mildred to be given at trial or taken for the purpose of trial.
[8] A trial management conference was not held in September 2017.
[9] The concerns with respect to John’s ability to testify at trial stem from the residual effects of a stroke he suffered following the completion of the first part of the trial of the 2012 action. Counsel for John and Brenda informed the court that (a) John is continuing with his rehabilitation from the stroke, (b) for the purpose of receiving instructions in the litigation, Brenda is acting pursuant to a power of attorney for property for her husband, and (c) it is not known at this time whether John will have the capacity to testify at trial.
[10] An issue for the plaintiffs in both actions and for the court is whether John is a party under a disability. No steps have been taken to date to determine whether John is a person under a disability within the meaning of the Rules of Civil Procedure and therefore requires a litigation guardian. The parties consent to an order that John (a) undergo an assessment for a determination in that regard, and (b) is responsible for the expenses associated with that assessment without prejudice to his right to claim those expenses as costs in the litigation. The deadline set for service of the report of that assessment is September 28, 2018.
[11] That report will assist John’s counsel in determining whether John requires a litigation guardian. Counsel for Mildred McMurtry and for Jim McMurtry will be in a position to determine whether a motion for an order appointing a litigation guardian for John is necessary.
[12] The issue of Mildred’s capacity to testify at trial was not raised by any of the parties. That issue remains to be determined prior to the trial of the 2011 action and the continuation of the trial of the 2012 action.
c) Trial Date
[13] By retaining joint experts to address issues such as appraisal of real property and valuation of shares of Mic Mac, the parties are working collectively to (a) narrow the issues for trial, and (b) minimize the trial time required. At present, it is anticipated that the trial of the 2011 action and the continuation of the trial of the 2012 action will take a total of three weeks. These actions are scheduled to proceed to trial or continue trial during the weeks of December 2, 9, and 16, 2019.
[14] At the next trial management conference (see below), consideration shall be given to setting a date for a settlement conference.
Disposition
[15] The following order is made on the consent of the parties:
Brenda McMurtry and John McMurtry shall, no later than July 31, 2018, provide documents to Welch LLP (“Welch”) in response to requests for information made by Welch to date and from the date of this endorsement to July 31, 2018.
The deadline of July 31, 2018 set in paragraph 1, above, is peremptory to Brenda McMurtry and John McMurtry.
Welch shall, no later than September 28, 2018, produce to the parties a report of the review by Welch of the finances and operation of Mic Mac (“Review Report”).
In the event Welch determines that revised financial statements for Mic Mac for one or more of the years 2012 forward are required to permit it to prepare the Review Report, then:
a) The deadline set in paragraph 3, above, shall be extended to November 30, 2018; and
b) Welch shall, no later than November 30, 2018, produce to the parties the Review Report and the revised financial statements.
Counsel for the parties shall communicate with the Trial Co-ordination Office to schedule a further trial management conference to take place, no later than January 31, 2019, before me.
The trial of the 2011 action and the continuation of the trial of the 2012 action are set to proceed before me on December 2, 2019 for three weeks.
Date: June 21, 2018
Madam Justice S. Corthorn
OTTAWA COURT FILE NOS.: 12-56265 and 11-50312
DATE: 2018/06/21
SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No. 12-56265
BETWEEN: Mildred McMurtry, Plaintiff
AND
John McMurtry and Mic Mac Realty (Ottawa) Ltd., Defendants
Court File No. 11-50312
AND BETWEEN: John McMurtry, Plaintiff
AND
Jim McMurtry, Defendant
AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim
AND
John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Mark W. Smith for Mildred McMurtry Jeff Saikaley for John McMurtry and Brenda McMurtry Daniel Mayo for Jim McMurtry
TRIAL MANAGEMENT CONFERENCE ENDORSEMENT
Madam Justice S. Corthorn
Released: June 21, 2018