Court File and Parties

OTTAWA COURT FILE NOS.: 12-56265 and 11-50312 DATE: 2019/04/08 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: March 27, 2019

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 reasons for judgment in the first part of the trials of these actions were released in April 2016. There have, since that time, been a number of trial management conferences conducted in an effort to ensure that various evidentiary and other issues are addressed in preparation for the remaining portions of the trials.

[2] The most recent trial management conference was conducted in June 2018. The parties were directed to arrange for the next trial management conference to take place prior to the end of January 2019. For scheduling reasons beyond the control of the parties, the trial management conference could not take place until late March 2019.

[3] The matters addressed in June 2018 and at this most recent case conference include (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

[4] Welch LLP is jointly retained on behalf of the parties to (a) review the finances and operations of Mic Mac Realty (Ottawa) Ltd. (“Mic Mac”) and (b) provide a report with the results of that review. At the June 2018 case conference a number of deadlines were set with a view to ensuring that Welch completed its work well in advance of the trial date. The trials of these actions are scheduled to continue for three weeks commencing the week of December 2, 2019.

[5] The first deadline set was July 31, 2018. John McMurtry and Brenda McMurtry were, by that date, to produce a number of documents and records related to Mic Mac’s financial records. The second deadline set was September 28, 2018. By that date, Welch was to have completed their review and report of the finances and operation of Mic Mac. The September 2018 deadline was premised on Welch being able to complete their report on the basis of the existing financial statements for Mic Mac.

[6] A third deadline was set of November 30, 2018. That deadline was also for the completion of Welch’s work; it was premised on Welch being required to prepare revised financial statements for Mic Mac before preparing its report.

[7] At the trial management conference in March 2019, counsel for John and Brenda informed the court that his clients had, as best as possible, answered the requests for financial records related to Mic Mac. Counsel for the opposing parties did not differ with that description of the efforts made by John and Brenda.

[8] That said, John and Brenda were not able to produce absolutely every record requested by Welch. The parties appear to be in an agreement that Welch will have to do the best it can with the information and documents available.

[9] Counsel advised that Welch did not meet either the September 2018 or the November 2018 deadline previously set. All counsel encountered difficulties in communicating with Welch and are uncertain as to the status of the work being done by Welch.

[10] Based on the submissions of counsel, the status of the communication with and work being done by Welch is that:

• The individual at Welch who had carriage of the file left the firm in the fall of 2018;
• For two to three months thereafter, inquiries of Welch as to the status of the work being done in this matter went unanswered;
• Only recently were counsel advised that an individual has been assigned to the file. Counsel for John and Brenda was, however, told that the individual assigned does not have the same area of expertise or experience as did the individual who was originally working on the file; and
• The time frame for the completion of the work by Welch is unknown.

[11] The December 2019 dates for the continuation of these trial proceedings was set with a view to ensuring that (a) Welch had sufficient time to complete its work, and (b) the parties have sufficient time to address any matters arising from the reports and other documents Welch prepares. It is now four months beyond the end of the second of the two deadlines set for Welch to complete its work. The continuation of the trials is eight months away.

[12] In light of the information provided by counsel as to the difficulties they have respectively encountered in securing a meaningful response, if any response at all, from Welch, a representative of Welch shall appear at the continuation of the trial management conference scheduled for May 1, 2019 at 4:00 p.m.

b) Physical Frailty of the Parties

[13] One of the matters addressed in June 2018 was John McMurtry’s capacity (or lack thereof), including with respect to his ability to testify at trial. The concerns about John’s status arose from a stroke he suffered subsequent to the completion of the first part of the trial of the 2012 action. An order was made requiring John to undergo a capacity assessment.

[14] The capacity assessment has been completed. A motion is scheduled before me on May 3, 2019. The relief sought is an order appointing a litigation guardian for John. If other relief is being requested on the motion, I am not aware of it. In any event, it appears that John’s capacity – at a minimum to instruct counsel – will be addressed on May 3, 2019.

[15] At the June 2018 trial management conference, the issue of Mildred McMurtry’s capacity to testify was not raised. She is the family matriarch and is in her eighties. At the March 2019 trial management conference her counsel advised that as of this date there is no concern with respect to her ability to testify when the trial proceedings resume in December 2019.

Disposition

[16] For the reasons set out above, in particular with respect to the work being done by Welch, I order as follows:

1. The trial management conference commenced on March 27, 2019 shall continue on May 1, 2019 at 4:00 p.m.
2. A representative of Welch LLP shall attend at the continuation of the trial management conference to (a) advise the court as to the status of the work undertaken in this matter, and (b) assist the court in setting deadlines for the completion of that work.
3. Counsel for Jim McMurtry shall provide Welch LLP with a copy of this endorsement within five business days of the date of the endorsement. (Note: Counsel for Jim McMurtry undertook to complete that step on behalf of all counsel.)

Date: April 8, 2019

Madam Justice S. Corthorn

Released: April 8, 2019