Court File and Parties
COURT FILE NO.: FS-18-56 and CV-18-49 (Walkerton) DATE: 2022-04-27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Aurelia Urness Applicant
-and-
Larry McDonald and Jamie Nicholas McDonald Respondents
Counsel: Michael H. Murray, for the applicant G. Edward Oldfield, for the respondents Larry McDonald Julia M. Fischer, for the respondent Jamie McDonald
Heard: April 14, 2022
Justice R. Chown
Endorsement from April 14, 2022 Motions
[1] This is my endorsement in the applicant’s disclosure motion and the respondent Jamie McDonald’s motion for an order suspending the operation of my March 17, 2022 order for the sale of four of the jointly owned farm properties.
Disclosure Issues
[2] The applicant’s requested items of disclosure are, for the most part, requests for information not documentation. Questioning was done in 2020. The information now sought was not sought at the time of questioning. The motion is not framed as a motion for further questioning based on answers to undertakings or subsequently produced documents. The motion could be dismissed on the basis that the information should have been sought through questioning. However, it is important that this matter is resolved on its merits. Some of the information is important to allow both sides to prepare for trial.
[3] I agree that parties should not have “two kicks at the can” for questioning and if counsel does not ask questions which could or should have been asked, they generally lose the right to do so. However, a good deal of documentation relating to the financial circumstances and income of the parties has been produced subsequent to questioning. Some of the information now sought is closely related to the subsequently produced information. A good deal of time has passed since the questioning. Balancing these considerations, in my view, the respondents should be required to provide the following information and documentation, to the extent that it has not already been provided:
a. For the period from 2016 to 2022:
i. Did the respondent or Rose Valley Farms receive compensation or incur expenses for business related activities? If so, the particulars should be provided.
ii. Did Jamie receive compensation or benefit:
- from the respondent;
- from Rose Valley Farms; or
- for his efforts related to the farming or seed cleaning operations?
Benefits would include, but are not limited to, free or reduced rent, fuel, utilities, or insurance received by Jamie or his girlfriend. If so, the particulars should be provided. Documentation of this should be produced if it has not been, but if this is not documented a description should be provided.
b. If Jamie’s hours worked for the farming operation or a description of his activities is documented, the documentation is to be produced. However, I will not require Jamie to provide a job description or his hours worked if this is not documented because: (a) parties to litigation are generally not required to create documents, only to produce existing documents; (b) the applicant already has some of this information from the respondent’s evidence at trial; (c) this is clearly something which should have been covered during questioning.
c. Any documentation regarding ownership of equipment bought in Jamie’s name. Jamie shall also provide a description of how his purchases of farm equipment were funded.
d. The particulars of land rented in Jamie’s name from 2017 to 2022.
[4] Jamie seeks production of records from Effort Transportation. Effort Transportation was used by Rose Valley Farms in the farming operation. Ms. Fischer submits that, when asked to provide income information for Effort Transportation, the applicant refused to produce it. She further submits that the income Effort Transportation earned off of Jamie’s labour is directly relevant to Jamie’s claim.
[5] Ms. Urness’s affidavit dated March 14, 2022 states that, under Effort’s CVOR, the respondent was the only driver allowed to drive the one truck that Effort owned and that Effort never employed, contracted or did any business with Jamie. This factual dispute is relevant and diligent effort should be made to produce records which might shed light on this issue.
[6] As Effort’s bookkeeping was done in QuickBooks, if the QuickBooks data remains available and accessible by the applicant, it will be an easy thing to generate the information. There is no evidence, one way or the other, as to whether the applicant can still access the QuickBooks data.
[7] I will order as follows. The applicant is to produce the income and expense statements and the general ledger for Effort Transportation from 2009 to 2017 inclusive, subject to the following provisos:
a. If she has paper copies or can generate these documents, she is to produce copies.
b. She is to make best efforts to locate and access the QuickBooks data and to generate these documents.
c. These efforts are not required to include purchasing a licence for QuickBooks if she no longer has a valid licence for the software. However, in that event, she is required to make best efforts to obtain the data files and to provide the respondents with copies of the data and any passwords required to access the data. The idea behind this is that if the applicant cannot with diligent effort produce the requested documents because she no longer has the access to the software or hardware to do so, but she can still access the data files, she should then give the data to the respondents so that they may engage someone to access the records if they wish to do so.
d. If the applicant does not have the records or the data but can obtain these records from someone else, such as an accountant, she is to make best efforts to obtain the records to the extent they remain available.
Motion to Vary previous Order
[8] The respondents ask me to amend my March 17, 2022 order so that the farm properties that I ordered to be sold need not be sold forthwith. They request that the sale be delayed until after the completion of the second phase of the trial. Ms. Fischer submits that this result can be effected in several ways:
a. I could amend the order under rule 59.06(1).
b. I could vary the order under rule 59.06(2)(a) or (b).
c. I could apply rule 3.02(1) to extend the time prescribed by the order.
[9] Ms. Fischer submits that this relief should be granted so that Jamie’s claim can be properly adjudicated. Jamie’s claim includes a claim for a declaration that he has a legal, beneficial, or equitable interest in the farm properties I have ordered to be sold, as well as for “an order vesting an interest in those lands.”
[10] Ms. Fischer further submits that there are crops that are on the land and the crop inputs will be lost if the properties are sold forthwith. This will result in a loss of profit to Jamie. She submits that the extent of Jamie’s interest in the property remains to be seen and hasn’t been assessed at this point. She notes that Jamie did not participate in the first phase of the trial. She submits that the order I made effectively “voids his action,” and that it is in the interest of justice that the order be set aside, varied, or suspended.
[11] Ms. Fischer is correct that my order effectively defeats Jamie’s claim for an order vesting an interest in the four jointly owned properties that I have ordered to be sold. However, I see no injustice in this, and indeed it would be unjust if I were to give effect to Jamie’s motion.
[12] It is true that Jamie did not participate in the first phase of the trial. However, he did fully participate in the motions which were heard at the outset of the trial, and it was his election not to participate in the first phase of the trial.
[13] The motions I dealt with at the outset of the trial included motions by the applicant for the sale of all the farm properties jointly owned by the applicant, and a motion by Jamie for certificates of pending litigation against all the jointly owned farm properties. Both of these motions were brought unusually late in the respective proceedings. The applicant’s motion was precipitated by enforcement measures taken by the mortgagee of the properties. Jamie’s motion was precipitated by the applicant’s motion, and would have effectively defeated the applicant’s motion.
[14] In my endorsement of June 15, 2021 (2021 ONSC 4340), I indicated that it would be unfair to the applicant to allow Jamie to hold her entire interest in all the jointly owned properties “hostage” pending the outcome of the trial. This is especially so given that:
a. Jamie’s interests in this dispute are fully aligned with the interests of his father, the respondent;
b. Apart from the home farm, which has not been ordered to be sold, the other properties are not exceptionally unique;
c. A vesting order in Jamie’s favour for the four properties that I have ordered to be sold cannot be realistically expected as an appropriate remedy.
d. There is no evidence as to the amount paid for crop inputs.
e. No one argued that losses for 2022 crop inputs would not form part of Jamie’s alleged damages.
f. I heard evidence at trial that farm sale values are increased if the fields are planted and can be harvested in the year of purchase.
[15] Weighed against the unfairness to the applicant in continuing to tie up her capital, any unfairness to Jamie is negligible.
[16] As indicated, Jamie participated in the argument of this motion at the start of the trial. He was able at that time to argue that the sale should not be ordered as it would defeat his claim for a vesting order. I reserved my decision at that time so that I could hear and apply the trial evidence from the first part of the bifurcated trial. I specifically indicated in my June 15, 2021 endorsement, that I did anticipate making an order that some of the properties would be sold. Jamie elected not to participate in the first part of the trial knowing this. Jamie did participate in the further argument I requested on June 30, 2021 on the applicant’s motion for sale. All parties approached the motion knowing that a possible outcome was that I would order the sale of the properties. On this basis, Jamie’s current motion must be seen as an attempt at a “do-over,” which is not permitted: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 (Div. Ct.), at para. 16.
[17] The cases cited to me by Ms. Fischer do not assist her position. These cases show that a party seeking to set aside an order is required to show “circumstances which warrant deviation from the fundamental principle that a final [order], unless appealed, marks the end of the litigation line”: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257, at p. 272, as cited in Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, at para. 59. Rule 59.06 provides a “narrow exception to finality”: Massiah, at para. 17.
[18] Jamie’s motion is therefore dismissed.
Costs
[19] Costs for these motions will be determined after the trial.
Chown J.
Released: April 27, 2022