



COURT OF APPEAL FOR ONTARIO

CITATION: Fenn v. McCabe, 2018 ONCA 329

DATE: 20180409

DOCKET: M48656 (C64385)

Pepall, Brown and Trotter JJ.A.

BETWEEN

R. Fenn

Moving Party

(Appellant)

and

Janet Eleanor McCabe in her personal capacity,
    Janet Eleanor McCabe in her personal capacity as a Beneficiary, Janet Eleanor
    McCabe in her capacity as power of attorney for property (continuing), Janet
    Eleanor McCabe in her capacity as power of attorney for personal care, Janet
    Eleanor McCabe in her capacity as Estate Trustee and Executor, Ruth Alma
    Fenn-Phillips in her personal capacity, Ruth Alma Fenn-Phillips in her personal
    capacity as a Beneficiary, Ruth Alma Fenn-Phillips in her capacity as power of
    attorney for property (continuing), Ruth Alma Fenn-Phillips in her capacity as
    power of attorney for personal care, Ruth Alma Fenn-Phillips in her capacity as
    Estate Trustee and Executor, Mary Margaret Fenn-Dunbar in her personal
    capacity, Mary Margaret Fenn-Dunbar in her personal capacity as a Beneficiary,
    Mary Margaret Fenn-Dunbar in her capacity as power of attorney for property
    (continuing), Mary Margaret Fenn-Dunbar in her capacity as power of attorney
    for personal care and Mary Margaret Fenn-Dunbar in her capacity as Estate
    Trustee and Executor

Responding Parties

(Respondents)

Robert Fenn, acting in person

M. Roefe, for the respondents

Heard: March 27, 2018

REASONS FOR DECISION

[1]

The moving party is self-represented. The Registrar dismissed the moving
    partys appeals for failure to perfect. Justice Miller of the Superior Court of
    Justice had struck out all of the moving partys pleadings with the exception
    of his application for a Passing of Accounts and for Directions in that regard.

[2]

By order dated December 20, 2017, Nordheimer J.A., sitting as a single
    judge of the Court of Appeal, declined to set aside the Registrars order. He
    concluded that the moving party had failed to provide any real reason for the
    delay to perfect, and there was no merit in the appeals.

[3]

The moving party moved to review the decision of Nordheimer J.A.

[4]

On Friday, March 23, 2018, at approximately 3:30 p.m., the moving party
    contacted the court requesting an adjournment of his motion that was scheduled
    for the following Tuesday, March 27. He advanced medical reasons and submitted
    draft medical reports, which were transcribed on January 12 and 16, 2018. His
    request was opposed by counsel for the respondents, and he was advised to make
    his request for an adjournment on the date scheduled for the motion. He subsequently
    served a notice of motion, returnable March 27, 2018, seeking an adjournment. He
    requested that it proceed by telephone conference call. He was authorized to
    proceed by telephone conference call, but was advised that if he were
    unsuccessful with his request, he would have to argue the motion.

[5]

On March 27, 2018, the moving party sought to adjourn his motion to
    review Nordheimer J.A.s order. He submitted that he was on pain medication and
    wished to advance undefined arguments relating to the

Canadian Charter
    of Rights and Freedoms
. His request was opposed by the respondents,
    who are relatives of the moving party.

[6]

We denied the request to adjourn the motion for the following reasons.

[7]

The moving party has very extensive experience with litigation. Indeed,
    the materials before us were replete with proceedings brought by him, much of which
    was directed at his respondent siblings. He also asserted claims against their
    counsel and various judges. The respondents have had to spend time and money
    defending his multiple proceedings. They were ready to proceed, wished to bring
    finality to these matters, and their counsel, who practices in Burlington, was
    prepared to argue the case.

[8]

We are mindful of the moving partys health challenges. However, the
    draft medical report, filed in support of his request, is from January and
    therefore dated, and it does not say that there is any impediment to his
    participation in these proceedings.

[9]

The moving party submitted that his main reason for the adjournment was
    that he wished to advance
Charter
arguments. Significantly, he
    preferred to rely on his written materials in support of his position on the
    motion itself but wanted the motion to be adjourned so that he could file more materials
    and raise new arguments.

[10]

The
    moving party had ample opportunity to file adequate materials, did file and
    serve in person extensive quantities of materials, and could have sought the
    adjournment at an earlier date.

[11]

In
    our view, it would be unfair to the respondents to adjourn this matter. The
    interests of justice would not be served by an adjournment. As such, the
    request was refused.

[12]

The
    panel then heard the motion to review. In his notice of motion challenging
    Nordheimer J.A.s order, the moving party stated that he expected the oral
    argument to be by way of written submissions on the hearing date and not
    orally.

[13]

Having
    reviewed the written materials, we heard argument and reserved our decision. We
    are dismissing the moving partys motion for the following reasons.

[14]

Justice
    Nordheimer considered the moving partys failure to explain his delay. In that
    regard, he properly observed that in the face of one order, only one appeal was
    required, not seven as the moving party insisted. He also concluded that there
    was no merit to the appeals and stated that Miller J. had given very careful
    reasons, addressing all the problems with the moving partys various motions
    and applications. Lastly, he concluded that the test for setting aside the
    Registrars order was not met.

[15]

A
    decision of a judge sitting in review of the Registrars dismissal order for
    failure to perfect is discretionary in nature. We see no error in the decision
    of Nordheimer J.A. The motion is dismissed.

[16]

The
    respondents, as the successful parties, seek costs of $10,637.57 in substantial
    indemnity costs. We are ordering the moving party to pay the respondents $3000
    in costs on a partial indemnity scale, inclusive of fees and disbursements.

S.E. Pepall
    J.A.

David Brown
    J.A.

G.T. Trotter
    J.A.


