COURT FILE NO.: CV 19/268

DATE: 2021/01/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TED WILLIAMS MACHER and JESSICA AUTUMN GREIDANUS, Plaintiffs

AND:

ROBIN ALEXANDER FARQUHAR, Defendant

AND:

ROYAL LEPAGE TRILAND REALTY BROKERAGE, Third party

BEFORE: Justice I.F. Leach

COUNSEL: Kevin Wilbee, for the Plaintiffs

The defendant Mr Farquhar, self-representing

Amy C. Dale, for the Third Party

HEARD: January 22, 2021

ENDORSEMENT

[1] This matter came before me in “regular” motions court on January 22, 2021, by way of an ostensible ex parte motion brought herein by the self-representing Mr Farquhar.

[2] In his motion record, dated January 8, 2021, Mr Farquhar sought various forms of relief herein, including:

a. adjournment, (although Mr Farquhar characterized it as a “stay”), of a summary trial of this matter thought to be scheduled for commencement on January 25, 2021;

b. consolidation of this action with other matters, including a small claims court action, (apparently having London Small Claim Court file no. SCC 256-19), and another action recently commenced by Mr Farquhar, (i.e., Farquhar v. Macher et al., London court file no. CV-20-1989); and

c. desired revisions to a Discovery Plan previously set herein by Justice Rady on June 10, 2019, with such revisions allowing Mr Farquhar to engage in further documentary and oral discovery.

[3] In that regard, it should be noted, (as Mr Farquhar acknowledged), that I made an order in this proceeding on August 2, 2019, prohibiting Mr Farquhar from bringing any further motions in this action without leave of the court. Mr Farquhar characterized his current motion as a request for such leave, and indicated a belief that he was not obliged to serve such a motion on the defendants or third party herein.[^1]

[4] On the same “regular” motions court docket for that day was another motion, brought in the aforesaid related action recently commenced by Mr Farquhar; i.e., Farquhar v. Macher et al., London court file no. CV-20-1989. In that regard:

a. In that litigation, commenced on December 16, 2020,[^2] Mr Farquhar as plaintiff has brought a new action against the defendants and third party to this litigation, (i.e., Mr Macher, Ms Greidanus and Royal LePage Triland Realty Brokerage), naming all three as defendants in the new action, while adding three additional defendants to that new litigation: i.e., Matthew William Young, Jarmo T. Stromberg and Royal Lepage Triland Realty.

b. On behalf of his clients Mr Macher and Ms Greidanus, (defendants to this proceeding and the new action), Mr Wilbee has brought a motion in the context of the new action. The motion, initiated on January 1, 2021, seeks numerous forms of relief, including:

i. dismissal of the new action on the basis it fails to disclose any reasonable cause of action, fails to plead sufficient material facts to establish a reasonable cause of action, and/or because there is no credible evidence of liability on the part of the defendants and therefore no genuine issue requiring a trial in that regard; and

ii. dismissal of the new action on the basis it is frivolous, vexatious and an abuse of process – e.g., insofar as it is duplicative of litigation already before the court, (including this proceeding), and/or effectively is an attempt to circumvent the order I made in this proceeding preventing Mr Farquhar from seeking further relief by way of motions without leave of the court.

c. On or about January 18, 2021, Mr Farquhar filed a responding motion record in relation the motion brought by Mr Wilbee’s clients in that new action. It includes a copy of an Amended Statement of Claim in that new action, dated January 18, 2021.

[5] At the hearing before me on January 22, 2021:

a. Mr Farquhar appeared by telephone to pursue his motion herein, and to oppose the motion brought by Mr Wilbee’s clients in the context of the new action.

b. Mr Wilbee, on behalf of his clients, appeared by telephone to pursue the motion his clients had brought in the context of the new action, and to oppose the motion brought by Mr Farquhar in this action; a motion that had come to his attention only recently; i.e., by Mr Farquhar’s motion record herein being provided to Mr Wilbee only on January 20, 2021, thereby effectively preventing the preparation and filing of any responding material.

c. Ms Dale also appeared by telephone. She represents the third party Royal LePage Triland Realty Brokerage in this action, Mr Young as a defendant in the related small claims court action, and both of those parties in the new action. She indicated that she was also in the process of seeking instructions as to whether she would be retained by the additional defendants to the new action, (i.e., Mr Stromberg and Royal LePage Triland Realty), in relation to that new action. Ms Dale also candidly indicated that:

i. she was not in a position to address Mr Farquhar’s motion herein because Mr Farquhar had never served her with his motion record, and she had just recently been provided with a “courtesy copy” of that pleading by Mr Wilbee; and

ii. she was not in a position to fully address the motion brought by Mr Wilbee in the context of the new action, (e.g., by bringing a similar supportive motion of her own on behalf of her clients), as she was still in the process of finalizing her retainer arrangements for the reasons noted above.

[6] The matter accordingly came before me in a very unsatisfactory manner; i.e., without the defendants and third party to this proceeding having been provided with the material filed by Mr Farquhar in a timely way, and without Ms Dale having the ability to obtain instructions in relation to the motion brought by co-defendants in the context of the new action.

[7] Moreover, although Mr Farquhar and Mr Wilbee each filed confirmations suggesting that hearing of their respective motions would take minimal time, (i.e., with Mr Farquhar suggesting that his motion would require only 30 minutes for his submissions and 5 submissions from others, and Mr Wilbee suggesting his motion would require only 10 minutes for his submissions and 10 minutes for the responding submissions of Mr Farquhar), in my view those time estimates were completely unrealistic having regard to the volume of material filed,[^3] the extended and detailed history of litigation set out therein, and the highly contentious nature of the proceedings.

[8] In my view, it was extremely unlikely that the obviously related motions could be addressed in less than one hour; i.e., the time limit for the hearing of motions in “regular” motions court, without the scheduling of a special appointment hearing. Moreover, bringing such motions in “regular” motions court realistically does not permit a presiding judge with a proper opportunity, allowed by special appointment hearing arrangements, to review and consider the significant underlying material for such motions in advance of their being heard.

[9] During the course of the appearance before me, it also became apparent that the supposed urgency underlying Mr Farquhar’s motion, (i.e., the perceived need to adjourn a trial of this action scheduled to begin on January 25, 2021), was illusory. In particular, contact with the trial co-ordinator’s office confirmed that this action actually was not scheduled to commenced on January 25, 2021. Indeed, for reasons that were not entirely clear, the matter had been scheduled to be spoken to in assignment court on the morning of January 22, 2021, to set a trial date, but the parties apparently had not been made aware of that. When no one appeared to speak to the matter in assignment court on the morning of January 22, 2021, the matter was adjourned to the assignment court scheduled for February 26, 2021, to be spoken to.

[10] In short, having regard to all the above:

a. the motions were not ready for hearing, insofar as all parties had not been given sufficient opportunity to receive, review and respond to the material being relied upon by others;

b. the motions were not amenable to being dealt with as “regular” motions in any event, and instead required a more extended special appointment hearing; and

c. there was no urgency preventing the motions from being adjourned to a special appointment hearing, with additional directions in the meantime to ensure that the motions would be ready for substantive argument and decision by the time of that special appointment.

[11] In the result, both motions were adjourned to a special appointment hearing on March 1, 2021, with a total hearing time estimate of four hours, subject to the following additional terms and conditions:

a. Mr Farquhar was directed to formally serve, forthwith, his amended statement of claim in the new action;

b. in relation to the motion brought by Mr Farquhar in this proceeding:

i. Mr Farquhar’s motion record was deemed to have been served on Mr Wilbee and Ms Dale;

ii. Mr Farquhar was directed to file no supplementary material in relation to his motion; and

iii. Mr Wilbee was directed to file his clients’ responding material, if any, on or before February 19, 2021;

c. in relation to the motion brought by Mr Wilbee’s clients in the new action:

i. Mr Wilbee confirmed that he would be filing no supplementary material in support of that motion;

ii. Mr Farquhar was directed to file his supplementary responding record, if any, on or before January 29, 2021; and

iii. Mr Wilbee was directed to file his clients’ reply material, if any, on or before February 12, 2021;

d. in relation to both motions, Mr Farquhar, Mr Wilbee and Ms Dale were directed to file their respective facta on or before February 19, 2021;[^4]

e. apart from the litigation steps specified herein, the new action otherwise was to be considered stayed temporarily pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, (e.g., suspending the time for the filing of any defence pleadings), until 4:30pm on March 1, 2021, subject to any further order of the court; and

f. costs of the appearance before me were formally reserved to the judge hearing and deciding the motions on their merits.

[12] I note that, during the course of the hearing before me, Ms Dale indicated that, beyond the possibility of her clients supporting the positions being advocated by Mr Wilbee’s clients, she contemplated the possibility of bringing an additional motion to stay the related small claims court action as well. However, Mr Farquhar then indicated, on the record, that he would be content to have such a stay implemented on consent. In the circumstances, and as that contemplated stay on consent is best dealt with in the small claims court proceeding, I did not make any directions or grant any relief in that regard.

[13] Finally, I also note, for the sake of clarity and for the benefit of the court staff and others, that I am not seized of the matter.

Justice I.F. Leach

Date: January 25, 2021

[^1]: As I attempted to make clear to Mr Farquhar during the course of the hearing, it was not appropriate for him to approach his motion as one capable of being brought on an ex parte basis; e.g., without his motion record being served on Mr Wilbee in relation to the defendants to this proceeding, and on Ms Dale in relation to the third party to this proceeding. Those parties clearly would be among those affected by the order Mr Farquhar is seeking, and Rule 37.07 of the Rules of Civil Procedure accordingly required formal service of his motion record on all such parties, either directly or via their counsel of record.

[^2]: It was emphasized that Mr Farquhar accordingly commenced his new action the day before the final judicial pre-trial conference in this litigation; i.e., a pre-trial held before Justice MacArthur on December 17, 2020. Mr Farquhar therefore undoubtedly knew of the new proceeding before and during that pre-trial conference, but apparently refrained from making any mention of it during the conference.

[^3]: Mr Farquhar’s motion record herein had no less than 117 pages. The motion record filed by Mr Wilbee in the new action had no less than 156 pages. The responding motion record filed by Mr Farquhar added a further 36 pages of material.

[^4]: At the time of the hearing before me, Ms Dale anticipated relying on the material filed or to be filed by Mr Wilbee in stating her clients’ position.