Court File and Parties

COURT FILE NO.: 1432/18

DATE: 2019-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard John Schroder, Applicant

AND:

Estate of Agnes Frebold-Schroder, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Ms. Jung Ah Kwon, Counsel, for the Applicant

Ms. M. Jasmine Sweatman, Counsel, for the Respondent

HEARD: November 12, 2019

ENDORSEMENT

[1] I think I can take judicial notice of the fact that court cases involving 93 year old litigants should proceed through our system more quickly – as opposed to conspicuously slowly.

[2] The nonagenarian Applicant herein is trying to pursue financial claims against the estate of his deceased wife. She left everything to her children from a previous marriage. He says that’s not fair.

[3] I make no comment or prediction as to the outcome of this dispute.

[4] But I have serious concerns that nobody appears to be giving this matter the priority it deserves.

[5] The parties had a Settlement Conference before Justice Bale on July 10, 2019. Justice Bale gave an opinion; made orders for disclosure and questioning; and noted that a further settlement conference should be set up before her, for a 1.5 hour timeslot (reflective of the court’s commitment to trying to help resolve these complex issues).

[6] The Applicant’s counsel then unilaterally scheduled today’s Settlement Conference.

a. The Respondent’s counsel objected to scheduling a Settlement Conference because by all accounts disclosure has not been completed, nor has questioning occurred.

b. The Applicant’s counsel advised Respondent’s counsel that today was really a “placeholder” date, and she refused to adjourn.

c. Today, Ms. Kwon advised that she really didn’t intend that the Settlement Conference would proceed. She was hoping to get some direction from the court with respect to certain issues.

[7] It was inappropriate for Applicant’s counsel to unilaterally select any date. It was inappropriate for her not to respond to reasonable requests for re-scheduling. And it was inappropriate to characterize this as a Settlement Conference, when clearly the file is not ready. If counsel wanted to get “directions” the matter could have been scheduled for a mutually convenient date “to be spoken to.” Justice Bale had previously offered to make herself available, as required.

[8] I expressed my concern about these mis-steps and stood the matter down for the parties to organize this file and pick up the pace.

[9] When counsel returned, it appeared there was an additional stumbling block because the Respondent estate has recently commenced a separate Superior Court proceeding, not in the Family Branch, against the Applicant.

a. So, the Applicant is suing the estate in one courthouse.

b. The estate has decided to respond by suing him in another courthouse.

c. We’re dealing with the same parties and basically the same facts.

d. But the estate doesn’t want his case against them to proceed, until their case against him is determined.

e. If all of this sounds needlessly complicated and time-consuming…that’s because it’s needlessly complicated and time-consuming.

[10] Our court system frequently gets blamed for being slow. But more often than not, it’s overly litigious parties who cause the delay.

a. The lawyers haven’t set up questioning in the original family court case because they couldn’t agree on whether questioning of the elderly Applicant should be limited to one hour because of his health. That’s no reason to delay things indefinitely. Book the questioning. Start with the one-hour time limit which the Applicant is proposing. If need be, a subsequent date can be arranged to complete the questioning. Do something.

b. The estate’s counsel doesn’t want the family court matter to proceed until the separate estate claim “catches up”. This makes no sense. The Respondent estate filed its Answer in Family Court on December 20, 2018. I have received no explanation as to why the “new” claims being advanced by the estate couldn’t have been set out in the Answer, as a counter-claim. I have received no explanation as to why all this time has elapsed in the family file, and now the estate has elected to bring a separate action so late in the proceeding. There appears to be resistance to the idea that all claims involving these parties should be dealt with simultaneously, either by consolidating the actions or dealing with them together. Again, we have an obligation to all litigants – particularly frail 93 year olds – to be sensible and efficient.

[11] The Respondent estate has previously delayed this matter. A Settlement Conference scheduled for May 23, 2019 had to be adjourned because the estate changed counsel. These things happen. But the court must be mindful that while delay in litigation is always to be discouraged, it is particularly unacceptable where cumulative delays have the potential to create significant (potentially determinative) strategic advantage or disadvantage.

[12] This matter is adjourned to November 29, 2019 at 10:00 a.m. to be spoken to. (It will be on my motions list, but counsel need not gown.) I have tried to impress upon counsel that this lackadaisical approach to this file is completely unacceptable. On the return date I am expecting counsel to outline practical steps they are taking to get this file back on track and expedite resolution.

Pazaratz J.

Date: November 13, 2019