Court File and Parties

COURT FILE NO.: FC-17-361 and FC-12-912-5 DATE: 2023/01/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EDITH MARIE MARIELLE BERNARD and KIMBERLY MELISSA STEWART, Applicants -and- WILLIAM NDZE FUHGEH, Respondent

AND RE: MARIE-HELENE GODBOUT and MARC CODERRE, Intervenors

BEFORE: Justice D. Summers

COUNSEL: Applicants are self-represented Respondent is self-represented Susan Sack and Andrea Acri, for the Intervenors

HEARD: April 8, 2022

Endorsement

Nature of the Proceeding

[1] Mr. Fuhgeh has costs awards outstanding against him in favour of the Intervenors, in the sum of $14,128, and in favour of Ms. Bernard in the sum of $3,256. The Intervenors move for dismissal or, in the alternative, a stay of the proceedings in which these awards were made. Ms. Bernard supports their request in oral submissions, although she did not deliver her own Notice of Motion. She did deliver an affidavit seeking a stay until the costs have been paid. The other named party, Ms. Stewart, did not participate in the motion.

[2] The background to the motion is this. In 2018, Mr. Fuhgeh commenced proceedings to set aside a final order with respect to his child with Ms. Bernard, and to set aside a temporary order with respect to his child with Ms. Stewart. The Intervenors are the lawyers who represented Bernard and Stewart in the proceedings giving rise to those orders. The motions to set aside these orders have not been determined, however, there have been considerable other interlocutory steps that have given rise to the costs awards against Mr. Fuhgeh.

[3] The present motion was brought following a case management conference during which discussions pertained to stay motions to be brought by the Intervenors and by Ms. Bernard. The case management judge established a timetable for document delivery and hearing of the motions.

[4] Mr. Fuhgeh delivered a cross-motion and supporting affidavit. It did not address the outstanding costs awards, rather, it raised other issues. He challenges the moving party’s request to dismiss his motions to set aside the two orders on the basis that the case management judge only authorized a stay motion. Mr. Fuhgeh wants all references to potential dismissal struck and fresh materials delivered seeking only a stay. He proposes to respond on the merits then, and for the stay motion to be rescheduled.

[5] His cross-motion also requests an order for the Intervenors to provide “a responsive and particularized” Response to his Request to Admit.

The Issues Raised

[6] The following issues were raised:

1. Should Mr. Fuhgeh’s cross-motion be granted?
2. Should Mr. Fuhgeh’s motions to set aside the two 2017 orders be dismissed at the request of the Intervenors in circumstances where neither Ms. Bernard nor Ms. Stewart have made the request in a formal Notice of Motion?
3. Should the stay be granted as asked?

Issue One: Should Mr. Fuhgeh’s cross-motion be granted?

[7] Mr. Fuhgeh’s motion as it relates to the Response to his Request to Admit, is dismissed. The Intervenors did deliver their Response explaining the denials and refusals to the entire 714-page Request. The court hearing the final determination of the set aside motions is the forum to determine the propriety of the Response.

[8] Mr. Fuhgeh’s request that the court consider whether aspects of the opposing material ought to be struck is proper. However, had he been prudent, he would have predicted that the court, having considered his request to strike, would proceed to hear the main motion on its merits. Mr. Fuhgeh took a risk in not providing a response to the key factual issue, namely, if he was in default of costs awards, what sanction should the court impose. The process he adopted seems to have assumed that his cross-motion would be granted as asked, and that he would then have more time to respond to the merits of the Intervenor’s motion.

[9] Unfortunately for him, I did not reach that conclusion.

[10] The impugned portions of the materials fall into two categories. The first relates to the request to dismiss. Given that I have concluded for other reasons not to grant that relief, I need not consider whether the moving party was prohibited from seeking that relief without specific permission from the case management judge.

[11] The second category raises issues of relevance, opinion, and legal argument. I would strike paragraph 17 of the Intervenor’s affidavit as it largely does not address any issues in this case, nor advance facts in support of granting the relief requested in the motion. I would not strike any of the other impugned portions of the Intervenor’s affidavit. I am satisfied that they properly set out the litigation history, state facts not opinion or argument, and are relevant to the exercise of the court’s discretion.

[12] I would strike portions of Ms. Bernard’s affidavit. Paragraphs 9 to 18 do include some opinion, some argument, and some speculation, together with some proper factual allegations. I have not considered the offending portions which would not, in my view, have had an impact on the outcome of the motion in any event.

Issue Two: Should Mr. Fuhgeh’s motions to set aside two 2017 orders be dismissed at the request of the Intervenors in circumstances where neither Ms. Bernard nor Ms. Stewart have made the request in a formal Notice of Motion?

[13] It is unusual for an originating process to be dismissed at the request of an intervenor. Here the originating process relates to Mr. Fuhgeh’s relationship to two children. This is personal to himself, the children, and their mothers, but does not involve the Intervenors at all. Their interest in the case relates to professional reputation and allegations of significant wrongdoing, as yet untested in court, but which might, if proven, have other legal repercussions for them.

[14] Neither Ms. Bernard nor Ms. Stewart delivered a Notice of Motion seeking dismissal of the originating process. Ms. Bernard, in her confirmation form, did echo the relief requested by the Intervenors, however, in my view, such final relief should be sought with full adherence to proper procedure.

[15] For these reasons, in these circumstances, I am not persuaded that dismissal is the appropriate sanction for non-payment of the costs awards.

Issue Three: Should the stay be granted as asked?

[16] It is undisputed that the costs awarded remain unpaid and were not appealed. The costs were awarded to the Intervenors, in August 2020 and May 2021. The first award arose from motion materials delivered by Mr. Fuhgeh that exceeded 2000 pages and were held to be an abuse of process by the case management judge. The second award related to the dismissal of an appeal from the order striking those materials. The costs to Ms. Bernard date back to July 2019 but almost half of the amount owing to her arises from those same two events.

[17] The case does not appear to be close to final determination. The most recent endorsement of the case management judge notes that he was told that Mr. Fuhgeh’s motion materials were still 1017 pages long and, in this regard, were not compliant with his order. The case management judge ruled that after this motion was decided, he would schedule another motion to determine whether parts or all of Mr. Fuhgeh’s affidavits should be struck to comply with his existing order.

[18] This motion is brought under r. 1(8) of the Family Law Rules, O. Reg. 114/99 (FLRs) which provides as follows:

Failure to obey order

r. 1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[19] I also directed myself to section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:

Stay of proceedings

s. 106 A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

[20] Based on the manner of carriage of the set aside motions to date, as fully outlined in the Intervenor’s affidavit, the remaining procedural steps required before it will be ready for final determination and the length of time the costs awards have remained unpaid, I conclude that Mr. Fuhgeh’s motions to set aside the two 2017 orders should be and are stayed until the costs awards have been paid. It would be unfair to require the responding parties and the Intervenors to continue incurring costs in relation to Mr. Fuhgeh’s motions without him first complying with the outstanding costs awards.

Conclusion

[21] Mr. Fuhgeh’s motions to set aside the two 2017 orders are hereby stayed until such time as the costs awards against him have been paid in full.

[22] The Intervenors have been successful and are presumptively entitled to partial indemnity costs for these motions and the last case management conference. If the parties cannot resolve the issue of costs without further court involvement, the Intervenors may provide the court with written submissions including a proper Bill of Costs, before 4:00 p.m. on January 28, 2023. Mr. Fuhgeh’s submissions and Bill of Costs shall be provided by 4:00 p.m. on February 11, 2023. Exclusive of Bills of Costs, submissions shall not exceed 2 pages, double-spaced, using a minimum of 12-point font. Any reference to the FLR’s or case law shall be by hyperlink only. The Intervenors shall have a 5-day right of reply, not to exceed one page.

Justice D. Summers Date: January 13, 2023