Contact Canada Tourism Services Ltd. v. Watts Estate, 1995 ABCA 267

In the Court of Appeal of Alberta Citation: Contact Canada Tourism Services Ltd. v. Watts Estate, 1995 ABCA 267 Date: 19950720 Docket: 15997 Registry: Calgary Between: Contact Canada Tourism Services Ltd. and Rose Marie Watts Appellants - and - Elizabeth Watts-Nuhn and Margaret Taylor, Executrices of the Estate of Eileen Watts, Deceased Respondents And Between: Rose Marie Watts and Contact Canada Tourism Services Ltd. And Contact Canada Tours Ltd. Appellants - and - W. Michael Wakerich and Larry S. Heald carrying on business under the firm name and style of Wakerich & Heald and Wakerich & Heald, W.E. Code, A.D.

Hunter, J.P. Peacock, N.C. Wittman, J.B. Katchen, C.S. Brooker, A.S. Hollingsworth, B.E. Emes, R.M. Eeson, G. Cameron, R.G. Stevens, A.J. Jordan, E.R. Holden, M.N. Woolstencroft, N.K. Machida, R.W. Myers, J.N. Boyes, E.M. Christopher, D.J. Pelkie, G.D. Mucalov, J.S. Peacock, E.P. Groody, A.L. Oppenheim, D.A. Hickey, D.B. Neale, J.B. Laycraft, L.G. McFadden, G.J. Shields, C.A. Seger, J.A. Snider, V.A. Dalla-Longa, CO. Llewellym, B.G. Kapusianyk, P.R. Mack, R.S. Johnson, K.W. Keyes, J.S. Saunders, J.M. Peters, J.D. Todesco, J.L. Dewar, C.V. Selby, A.G. Shewchuk, K.R. Tobler, J.E. Russell, CM. Skene, S.J. Ross, K.W.

Warren, P.H. Hutton carrying on business under the firm name and style of Code Hunter and Code Hunter, and John H. Dunphy, Robert W. Calvert, John F. Minchin, R. Bryan Waller, W. Roy Shouldice, Wendy E. Best, Judith R. Norman, Gerald H. Stobo, Judith Hanebury , Veronica Della-Longa, Patricia L. Blocksom, Michael A.E. Greene carrying on business under the firm name and style of Dunphy Calvert & Waller and Dunphy Calvert & Waller and V.H. Vogel , G.F. Butler, P.A. Kazakoff, S.A. Couper, R.N. Billington , L.P. Campbell, K.A.

Whitburn carrying on business under the firm name and style of Vogel, Butler & Kazakoff and Vogle , Butler & Kazakoff, Louis Faber, I. Karl Gurevitch, David M. Bickman , L.D. Leon, T.L. Paul carrying on business under the firm name and style of Faber Gurevitch Bickman Respondents And Between: Contact Canada Tourism Services Ltd. Appellant - and - Webster MacDonald, Sr. Respondent

Oral Reasons for Decision of The Honourable Mr. Justice O’Leary In Chambers COUNSEL: Rose Marie Watts, for the on own behalf G.E. Price, for the defendants J. Shriar, for the Estate of Watts B.E. Mahoney, for the Amicus Curiae TRANSCRIPT OF ORAL REASONS FOR JUDGMENT GIVEN BY THE HONOURABLE MR. JUSTICE O'LEARY IN CHAMBERS JULY 20TH, 1995 O'LEARY J.A.: [ 1 ] Rose Marie Watts, who represents herself, and is without counsel, is a party along with two companies which she controls, to numerous separate lawsuits which are now proceeding in Queen's Bench.

They have been referred to in two categories: the first being the Estate litigation which involves a lawsuit by Miss Watt's mother Estate, and her, in which there are numerous pleadings and which have been outstanding for sometime. There are a number of actions which Miss Watts and/or her companies have commenced against various law firms and individual lawyers. They have been lumped together and called the Lawyer's actions.

All of these matters have been under case management before Madam Justice Fruman in Queen's Bench. [ 2 ] On June 29th, 1995, Madam Justice-Fruman made two Orders; one in each of the two sets of proceedings, that is the Estate litigations and the Lawyer's litigation. Those Orders are essentially the same, certainly in many of the important aspects. One of the aspects of the Orders is a citation of Miss Watts in contempt for failing to comply with prior court orders with respect to the filing of an affidavit of documents.

That contempt finding is followed by a direction that she may purge her contempt by filing an affidavit on or before July 21st, 1995, which is tomorrow. That led me to think, when I read the file, that the urgency of this application was precipitated by the need to deal with that requirement. Miss Watts has filed a Notice of Appeal in which she has appealed all of the provisions of the Orders and no steps have been taken, of course, to deal with that.

I have before me today the application for a stay of the Orders and Miss Watts' position is that the stay should be granted pending an application which she proposes to make to have counsel appointed to represent her in these matters -- her and her companies, I should say. By way of further background, trial dates have been set aside for the end of November in this year and Madam Justice Fruman has been shepherding this matter along with a view to using those trial dates.

There is a need to have the issues raised in these lawsuits tried, not just to satisfy the claims of Miss Watts and to deal with them, but also to deal with the positions of the numerous lawyers who have been named as parties to the litigation and against whom various accusations have been made; and, as well, to deal with the Estate of Miss Watts' Mother. [ 3 ] The application for a stay, if granted, would in effect bring all of this litigation to a halt until such time as the application for the appointment of counsel is heard and dealt with.

At that moment that application has not been set and one of the difficulties which has been experienced is getting Miss Watts to review and execute an affidavit in support of that application. Mr. Mahoney has been appointed as Amicus Curiae and has been giving some assistance to Miss Watts, although I gather his position is to ensure that there is fairness and an appearance of fairness in these proceedings.

In any event, he has been assisting her in many aspects of the matter while she has been unrepresented. [ 4 ] Because of the fact that this matter is proceeding under case management and that there are trial dates set for the end of November, I am not inclined to grant a stay. None of the aspects of the Orders which are under appeal are such that they cannot be dealt with by Madam Justice or another Judge of the Court of Queen's Bench, either as part of the case management regime or otherwise. In my view, there is no irreparable harm which will befall Miss Watts or her companies should the stay not be granted.

On the other side of the coin, as I've already mentioned, the likelihood of this matter proceeding to trial in late November would be nullified if I granted the stay on the terms requested. The balance of convenience, in my view, rests with denying this application and thereby ensuring that the steps necessary to be taken in order to get this matter ready for trial in late November will continue and the parties will all be under some pressure to proceed. That does not mean, of course, that Miss Watts cannot proceed with her application to have counsel appointed.

She has every right to do that and while her chances of success have been described as minimal, she nevertheless has the right to pursue that avenue as vigorously as she wishes. She can certainly do that but, in my view, it would result in serious prejudice to the other parties to this litigation if I were to grant the stay and bring all of these proceedings to a complete halt while she proceeds with that application. Her diligence in going ahead with that application has not been demonstrated to date.

Even if she did proceed diligently in the future, it is unlikely it would be disposed of within the next few weeks and there would be a delay sufficient, in my view, to make it unlikely that the trial dates could be used. [ 5 ] The application for a stay is therefore denied. Miss Watts, and that means that the Orders which are outstanding and which were made on June 29th, 1995 will continue to be effective. As I have pointed out, it is my view that nothing in those Orders,

should they continue on foot as I have directed, will cause irreparable harm to you although I concede they will put you under pressure to comply with them. You have been under that pressure up until now and that pressure is going to continue. [ 6 ] I propose to deal with the appeal itself because with the appeal of the Orders outstanding it is, in my view, unlikely that the Court of Queen's Bench has jurisdiction to make any further interlocutory orders as part of the case management regime or otherwise.

For that reason I agree that it is imperative that the appeal of the Order be disposed of as quickly as possible. I have reviewed the material which has been filed, that is the Notice of Appeal as will as the material filed in support of the application for the stay. I am going to direct and make some directions that this appeal be heard expeditiously so that the matter can be returned to Queen's Bench with whatever directions this Court sees fit to impose on the further conduct of this litigation. MISS WATTS : Sir, I should maybe tell you that I've been ordered by my doctor not to work this summer.

O'LEARY, J.A .: No to what? MISS WATTS : Not to work. O'LEARY, J.A. : Very well - you're available. MISS WATTS: That is not why I'm not to work. O'LEARY, J.A. : You're not to work. MISS WATTS : I am not to work. That I am not capable of working at this time. O'LEARY, J.A. : Alright. I'm quite happy with that.

But what I want to know is … I asked you that because I wanted to make an Order … MISS WATTS : I'm telling you that I'm not capable of proceeding fast with these things because of health reasons is why I'm telling you … O'LEARY, J.A. : Well, you're here today doing quite well and I don't see any reason why you can't deal with your appeal of those two Orders. It’s basically the same representations as you’ve been making today. MISS WATTS : Sir, as I've explained to you, it took me 10 days to get ready to come here today, and I'm not feeling well and I was in bed all day yesterday.

O'LEARY, J.A. : Well, I'm going to direct that the appeal which you have filed proceed expeditiously. I'm going to direct that no appeal book be filed and that the material which is already on file plus the two Orders as signed and entered in Queen's Bench and which I have placed on the file will comprise the material on the appeal. If any of the parties feels, between now and the date that I am going to fix for the hearing of this appeal, that additional material should be in the hands of the Court, then any party is free to file that material and serve the other parties with it.

My view, as a novice as far as this litigation is concerned, is that the material on file gives a fairly good perspective for the Court of Appeal to consider this matter further. The Court is sitting next week, on Monday and Tuesday but not likely on Wednesday. I'm going to direct that this matter proceed, that is, the appeal itself, proceed on Monday, excuse me, Tuesday morning at 10 a.m. And, as I said, the material on file will form the basis for the hearing of the appeal subject as I said to any additional material being filed by any party in the interim.

I should say this that no material will be accepted for filing other than what is already on the file without first obtaining a fiat from me, and I will be here today and tomorrow as well as Monday. MISS WATTS : Sir, I'm not even in town next week. O'LEARY, J.A .: Pardon me? MISS WATTS : I'm not here next week. O'LEARY, J.A .: Well, … MISS WATTS : Like - I mean - I'm under doctor's care and I've done this and I feel sick and I've dragged myself out of bed to come here and you're telling me when I'm asking for counsel and a stay to help that I have to do this on Monday … I don't even know how to do it, sir.

O'LEARY, J.A. : Well, you've done it today and there really isn't much difference. MISS WATTS : It took 10 days and now you're saying I can't file anything else. I mean, you have 20 days to file something, according to the rules. O'LEARY, J.A. : Well, I'm abridging all times and the material that is on file now will be the material on which the appeal will be determined unless, with my leave, additional material is accepted. MISS WATTS : Could we do it next week? O'LEARY, J.A .: Pardon me? MISS WATTS : Could we do it a different week? O'LEARY, J.A. : No.

The Court of Appeal is only sitting next week, and then for the balance of the summer the Court is not sitting.

MISS WATTS : Well, I'm not here, sir. O'LEARY, J.A. : Well, you're going to have to be here. I'm not satisfied that you have explained to me … given me any reason why you're not going to be here. You say you don't feel well but you've bee here today; you appear perfectly healthy to me, and you've made representations … MISS WATTS : Sir, I have a doctor's note I'd be quite happy to give you if you'd like it. But I am not capable of working and I am not capable of being here on Monday because I've had plans not to be in town. And I couldn't even know how to prepare for this.

And I mean not only are you denying what I've applied for … O'LEARY, J.A. : Miss Watts, you prepared for today's … MISS WATTS : For 10 days - for 2 weeks I've prepared and I mean all this looks like is that nobody wants me to be able to apply for counsel … O'LEARY, J.A. : It has not gone to waste because the representations you made today and the material looked at will be the same material as you looked at in preparation for today's representations as well as I'm sure you had when you dealt with Madam Justice Fruman on June 29th and on numerous occasions before that.

So none of this material should be a mystery to you whatsoever. MISS WATTS : Sir, when you do an appeal I read that there is something you file in 20 days and then you file different things. I have every intention of having filed special things. Okay? You're denying me that right in one day.

Tomorrow I'm supposed to do this … O'LEARY, J.A. : Yes, well, I am indeed directing that this appeal be heard without the necessity of filing formal appeal books which will MISS WATTS : … but I'd like to … O'LEARY, J.A. : … cost you a lot of money because its your obligation as appellant to have the appeal books prepared and filed and I'm also directing that the matter proceed without written argument unless you want to file something with my leave, which you … MISS WATTS : I'd … O'LEARY, J.A. : … and the other parties aren't either … MISS WATTS : I would like to file something.

Could we please do it at the next time this Court sits? O'LEARY, J.A. : No, this matter is going to be dealt with next Tuesday at 10 a.m. And I thought I explained to you, maybe you didn't understand me, but I explained to you that if this matter stays in the Court of Appeal indefinitely or for the foreseeable future for a couple of months, then the Court of Queen's Bench basically has no jurisdiction to deal with the matter. These lawsuits are all in effect in front of the Court of Appeal. The whole thing comes to a halt it this appeal is not dealt with expeditiously, and I'm not about to do that.

I think that the case management judge and the other judges of the Court of Appeal should have charge of this matter and should listen to any requests you have for delays or special consideration and should see that this matter gets to trial as quickly as possible. That what I want to do. I don't want it to be languishing in the Court of Appeal. MISS WATTS : Okay.

I just want to go on the record that I don't feel well and I can't prepare these documents, and I did intend to be out of town, and I would appreciate more time and I think for an individual there are rules, and I read the rules when I made this appeal… O'LEARY, J.A .: Right … MISS WATTS : I paid a lot of money to make the appeal. All I've asked is to be able to get on with is special application. O'LEARY, J.A. : Well, there's … you're perfectly entitled to get on with the special application … MISS WATTS : The special application … I wasn't ordered to do it. Mr. Mahoney was court ordered to do it.

He was court ordered to do it in January 18th, and 25th, and April 11th and May 25th. I went and booked it myself for the end of this month which more than shows I wanted to get on with it … O'LEARY J.A. : Mr. Mahoney has indicated that he's prepared an affidavit in support subject to your review … MISS WATTS : … In June. In June. We waited six months for it and the affidavit he told me to put more things in 'cuz he doesn't know the history and its very complex. O'LEARY J.A. : Well.

I don't know what the history of it is but if it was prepared in June and it is now July 20th and it still hasn't been signed and filed and no day has been fixed for the hearing despite the fact that you've had the co-operation of the Chief Justice of the Court of Queen's Bench, the case management judge … MISS WATTS : We didn't … O'LEARY J.A. : It appears to me that everybody there is bending over backwards to accommodate you. MISS WATTS : Sir, that may be what has been said here but in every application before the Court, which I think should have the right to put before the appeal, I've asked for this.

I've tried to get counsel to help me to do it. I've brought motions to have it brought on. I booked it and had it booked for the end of this month. Okay. And I mean I don't know about Courts of Appeal and 'guess basically if you intend on proceeding when I'm not well and when I don't have a lawyer and when I don't have any time and you don't want me to file

anything else, I can't even present my case fairly. O'LEARY J.A. : Miss Watts, this is your appeal … MISS WATTS : I know it is, sir, and I'm suing people on the bench and I'm suing lawyers and this appeal should not be made faster, I mean, 20 days is the normal thing … and it should … I mean I'm not trying to go on with this appeal forever and I think that that's your impression. But that's not true.

O'LEARY J.A. : Well, whether you're trying to go on with it forever or not the fact is that if it does not get heard expeditiously then we go through the need for appeal books and written argument, it will certainly go on well beyond the trial dates that are set now for November. In my view, by expediting the appeal and directing that it be heard next week, I am in fact getting the issues that you raise on appeal before a panel of this Court to be dealt with quickly which, in my view, is something you should want.

If you come here, as a matter of fact, Miss Watts, believe me, people come to this Court with requests that their appeals be heard very, very quickly and would jump for joy if they were able to get them on within a matter of days. MISS WATTS : And I believe everyone of those people are lawyers. They're not lay people … O'LEARY J.A. : Not necessarily … MISS WATTS : … applying to the court for a stay so I can have counsel. You're denying me the right to even out in documents.

O'LEARY J.A. : Well, Miss Watts, every one of those people represents a client … MISS WATTS : But they have six years of legal training - ten, twenty years of legal experience, sir … O'LEARY J.A. : We have a number of people that do these things for themselves that have no legal training at all and have less education and are much less articulate than you, and they receive a fair hearing and they get their cases on … MISS WATTS : But they aren't put on it 4 days, sir. I mean … so you are the court ordering that I can't go do what my doctor says. Is that what you're saying?

O'LEARY J.A. : I have no idea what your doctor says … MISS WATTS : My doctor says that I can't work and that I need to take some time off and I've planned to be out of town next week. O'LEARY J.A. : Well, what I'm telling you is that this matter will proceed next Tuesday at 10 a.m. The appeal will be heard and I've given the directions with respect to the material that will be filed. MISS WATTS : When will it be filed? O'LEARY J.A. : Nothing is to be filed except what's already on file unless you get leave from me to file it between now and next Tuesday morning. MISS WATTS : But why, sir?

Why would I be denied the right to put my case forward in an appeal? O'LEARY J.A .: You can. MISS WATTS : I can't if you don't let me file anything. I didn't file … what I filed here was just … was for the appeal it wasn't for the stay. But it wasn't for, like in the appeal books, it doesn't have the notices of motion, it doesn't have the affidavits, it doesn't have … what you're basically saying is I can't file the court orders that show that the Amicus didn't follow the court orders. That's what you're saying. Okay. I think that's biased and with all due respect, sir, I mean do I need to even bother coming?

O'LEARY J.A. : Oh, I suggest you do. MISS WATTS : Why? Because I mean, if you have no desire to give me the time to prepare, okay, and you don't grant me the stay and I've come here telling you I'm under so much pressure already, it just seems like its worse … O'LEARY J.A. : Let me say this, that I don't know what the panel that has this matter in front of them on Tuesday is likely to do.

You are free to make any request to them for a further adjournment or for a stay for that matter, or any disposition you wish at that time, and it will be taken seriously and considered and you will be allowed an opportunity to argue it. I'm not directing that this matter is going to be dealt with one way of the other at the end of the day on Tuesday. You have a right to make those applications. I'm saying that its going to be dealt with … MISS WATTS : I don't have the ability physically to prepare.

O'LEARY J.A. : Well, its going to be dealt with expeditiously next Tuesday at 10 a.m. in this, I'm not sure which court room, but in one of the court rooms here. You should be there.