JOHN DOUGLAS McCORMACK PETITIONER/RESPONDENT - v. –, 2023 SKKB 37

KINGS’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 37 Date: 20 23 02 14 Docket: DIV-YT-00014-2020 Judicial Centre: Yorkton BETWEEN: JOHN DOUGLAS McCORMACK PETITIONER/RESPONDENT - and – CATHY MARIE PILLER RESPONDENT/APPLICANT Counsel: David G. Kreklewich for the petitioner/respondent Cathy Marie Piller self-represented FIAT MITCHELL J. FEBRUARY 14, 2023 I. Overview [ 1 ] The trial of this highly contentious family law action is scheduled for two weeks commencing on April 3, 2023. After a short hiatus, the second week of trial is scheduled to commence on April 24, 2023.

I am the designated trial judge. [ 2 ] Although this matter is of relatively recent vintage, resolution of the various issues raised by the petitioner, John Douglas McCormack [petitioner], is required sooner rather than later.

As noted by Bardai J. in his unreported fiat in this matter dated September 1, 2022, at para. 33: [33] The Court file now consists of nine volumes of material and there have been approximately 50 attendances by the parties before judges of this Court, though not every attendance resulted in a substantive order being made as some dealt with adjournments, management issues and procedural matters.

What is clear is that these parties need to get this case to trial so that a final determination can be made. [ 3 ] On December 20, 2022, the respondent, Cathy Marie Piller [respondent], filed a hand-written notice of application seeking an adjournment of the trial pursuant to The Queen’s Bench Rules . The respondent who is self-represented set out the

reason for her request starkly: “I am alone on the farm and cannot leave the cattle when calving”. [ 4 ] Not surprisingly, this application was strongly opposed by the respondent and his counsel, Mr. David J. Kreklewich. Counsel objects to an adjournment of the trial at this late date. Although the petitioner did not file any affidavit material in response to this application, Mr. Kreklewich did advise me during the hearing that he would be retiring and closing his practice by the end of June 2023.

Consequently, he wished to complete all outstanding matters in this Court by that date. (From my review of the court file in this matter, Mr. Kreklewich has represented the petitioner since approximately May 2021.) [ 5 ] The following affidavits were filed on this application: (1) the affidavit of Cathy Marie Piller sworn December 20, 2022; (2) the affidavit of Patricia Lynn Stilborn sworn December 20, 2022; (3) the affidavit of Marvin Zorn sworn November 30, 2022, and (4) the affidavit of Debra Zorn sworn November 30, 2022. In addition, the respondent filed a letter dated October 17, 2022 from Dr. R.J.

Gervin, D.V.M of the Valleyflats Veterinary Services in Moosomin, Saskatchewan. [ 6 ] I have reviewed the court file in this matter as well as the written materials filed when preparing my fiat. I have also weighed the oral submissions of counsel. These reasons will explain why I conclude that the application seeking adjournment of this trial pursuant to Rule 9-4(2) of The Queen’s Bench Rules should be allowed in part. [ 7 ] Further, I direct that for appraisal purposes each party should notify the other party 48 hours in advance of when their appraiser would be available.

The other party should not withhold consent unreasonably to such an appraisal taking place. II. Factual Background [ 8 ] The trial dates in this matter were set by Haaf J. at the conclusion of the pre-trial management conference held on August 9, 2022. As the respondent had indicated she intended to appeal this direction, Haaf J. prepared a short fiat which began by setting out the tortured procedural history of scheduling the pre-trial. [ 9 ] In its relevant parts, Haaf J.’s fiat reads as follows: It is important for matters to proceed expeditiously toward resolution.

While each party indicated their case would take only three days, more days will no doubt be required given the highly conflictual nature of this dispute. The only dates for a two-week trial in the 2022- 2023 year where there was not a judicial conflict were the aforementioned dates. Ms Piller advised the court that she could not attend on those dates as she was calving; she would only be available for trials in the months of October, November, December, January and the first half of February, given her obligations to her cattle.

When the court offered to contact the scheduler to see if there may be available dates in December or January, she insisted that she could not possibly be ready for a trial by that time. The earliest she would agree to trial dates would be October of 2023. Petitioner’s counsel opposed this length of time to trial, he states that waiting until that date would prejudice his client as he intends to retire sometime soon, in approximately six months to a year. Mr. Kreklewich stated that he would make himself available in December or January if trial dates became available.

Respectfully to Ms Piller, most parties in litigation have jobs, and they make themselves available when trials are required. Unavailability for a week here or there is understandable. Being unavailable for months at a time and refusing to agree to trial dates less than 14 months in the future, raises concern that the party is seeking to delay. Justice McMurtry ordered that the parties were [to] move forward with management toward trial, and there has been a delay of several months given the respondent’s request for adjournments to get counsel.

Trial dates shall be set, and, as there was no agreement as to dates, I will order that they be set for the earliest available dates for the judicial centre. I order as follows: 1. Trial dates for this matter shall be set for the following dates: April 3-6/2023 and April 24-28/2023 2. In the event that there are earlier dates that become available for this trial in the Judicial Centre of Yorkton in the month of December or January the trial can be moved up to accommodate Ms. Piller’s work schedule. 3.

If the parties BOTH agree that a settlement Pre-trial conference would be of use, the parties shall contact the Local Registrar and Justice Haaf will attempt to make settlement Pre-trial available to them. [Bold in original] [ 10 ] Contrary to her stated intention, the respondent did not appeal Haaf J.’s order, ostensibly on the advice of an unidentified lawyer. [ 11 ] Subsequently, the Chief Justice assigned me to be the trial judge. On December 16, 2022, a case management conference call was convened with me. At that time, the respondent renewed her adjournment request.

I advised that it would be necessary for her to file a formal application asking for this adjournment. As well, in view of Haaf J.’s fiat, I advised the respondent she would have to provide the court with more evidence than had been available to Haaf J. at the pre-trial. [ 12 ] As noted, the respondent took my remarks to heart. On December 20, 2022, she filed a formal notice of application (albeit handwritten) as well as the four affidavits and the letter from a veterinarian. 1. Piller Affidavit

[ 13 ] In her affidavit, the respondent refers to an earlier fiat issued in these proceedings in which Goebel J. gave her exclusive possession of the family home, the home quarter, and the cattle herd. She also referenced certain sections of The Animal Protection Act, 2018 , SS 2018, c A-21.2 relating to legal obligations and responsibilities an animal owner owes to their animals. [ 14 ] The respondent went on to describe the calving process. Particularly, she averred at paras. 8, 9, 13, and 14 as follows: 8. The cows see only me everyday so I am able to handle them without stress to them.

The calving barn is equipped with a maternity pen and an inferred [ sic ] heater. I move each cow into that barn when they are calving. I can then assist any cow having difficulty and each newborn is put under the inferred [ sic ] heat lamp. 9. Throughout the entire calving season from February through April or until the weather finally changes, I lock a group of cows into the barn every night and let them out in the morning to eat until they have their calf. Once the calf is a few days old the cow calf pairs are moved out into the big open faced barn. I bring new expecting cows in as room allows.

The calving bar gets bedded and cleaned every day for this purpose. . . . 13. Feeding and bedding takes many hours everyday and more when the ground is thawing. Doug has taken the front wheel assist John Deere chore tractor which is equipped for these conditions. The 4430 and the 4320 tractors that I have here are not meant for wet conditions so it takes twice as long to feed and bed. 14. I explained to the pre-trial management Judge that I absolutely could not attend a trial during calving time because it is a full time around the clock job.

I make the cattle a priority over everything because that is my job, my responsibility my livelihood. This was also ordered by Madam Justice Goebel in April of 2020. [ 15 ] The respondent then avers that the individuals who she intends to call as witnesses also are full time farmers and ranchers. Consequently, they would be unable to attend court during the scheduled trial dates. [ 16 ] Finally, she avers at para. 22 that the respondent will suffer no prejudice should this trial be adjourned and the trial dates vacated. She states: 22.

Further to this Doug claims he is totally retired therefore he is available for trial at anytime. Doug’s criminal hearing

schedule in Ontario should not interfere with any dates any long as a bench warrant has been issued for his arrest. This occurred when his Ontario lawyer lost contact with him and since the Bench warrant stops all proceedings against him he is free from prosecution. His criminal hearing dates in Saskatchewan have been interfering with dates the Court of King’s [ sic ] registrar had available for application dates for me since September 30, 2022. He has two more in January one in Broadview on January 18, 2023 and one in Yorkton on January 20, 2023. 2.

Stilborn Affidavit [ 17 ] Patricia Stilborn, who has operated a cattle operation for more than 40 years, filed an affidavit supporting the respondent’s adjournment request, and corroborating her statements respecting calving and calving period. Particularly, at paras. 4-6, and 10 it is averred: 4. Calving time is a critical time for the main cattle person to be in attendance. Most cattle operations have a period of 45 to 60 days in which the cows will calve. Even with observed breeding dates you do not know exactly the date the cow will calve. 5.

Weather, feeding patterns and handling all affect the success of a calving season. 6. Attendance of the person responsible and knowledgeable of the cow herd is critical. . . . . 10. The yearling [ sic ] income of a cattle operation is greatly affected by the success or failure of the calving period. 3. Zorn Affidavits [ 18 ] Mr. Marvin Zorn and Ms. Debra Zorn each filed an affidavit. They, too, supported the respondent’s adjournment request. Mr.

Zorn who had 45 years of experience with cattle, averred at para. 4 that with “any number of cows Calving [sic] you can not afford to be away from the farm this time of year”. The tenor of Ms. Zorn’s affidavit is similar. She avers at para. 4: “We stay home this time of year. Calving season is a crucial time on the farm, that demands a person to be there 24 hours a day”. 4. Dr. Gervin’s Letter [ 19 ] Finally, the respondent filed as Exhibit “E” of her affidavit, a letter from Dr. Gervin, a veterinarian. [ 20 ] Dr.

Gervin describes a “One Person Cow/Calf Agricultural Operation” which describes a situation where an “individual is solely responsible for the care and supervision of a cow herd year-round, and especially the demands as the cows have their calves in the spring – April/May/June”. Particularly, during calving “a great amount of time is required daily to provide proper animal care. Cattle checks are generally performed multiple times over a 24-hour period.” [ 21 ] Dr.

Gervin closes his letter with this paragraph: It could be very detrimental to the “One Person Cow/Calf Agricultural Operation” if the said individual was required to be away from

the operation for extended periods of time for any reason, including attendance of a lengthy Court Trial, at this extremely busy anddemanding time of year. III. Law [22] Rules 9-4(2) and 9-14 of The Queen’s Bench Rules, respectively deal specifically with adjournments of trials.Neither Rule itemizes factors which a court may or should consider when adjudicating an application to adjourn a trial which has beenscheduled. [23] Indeed, the decision whether to grant an adjournment is discretionary. It must be made fairly, and in accordancewith the principles of natural justice.

See, for example: Yashcheshen v Canada (Attorney General), 2020 SKQB 185, aff’d 2022 SKCA140; Ontario Securities Commission v Go-To Developments Holdings Inc., 2022 ONCA 328 at para 11; Berger v Saskatchewan(Financial and Consumer Affairs Authority), 2019 SKCA 89 at paras 17-28; Sir v Fleury, 2018 SKQB 6 at paras 23-25; Buckle v Caswell, 2012 SKQB 143 at paras 12-14, 395 Sask R 286 [Buckle]; Markwart v Prince Albert (City), 2006 SKCA 122, 277 DLR (4th)360; Prassad v Canada (Minister of Employment and Immigration), (SCC), [1989] 1 SCR 560 at 568-9; Lindquist vRiendeau (1987), (SK CA), 60 Sask R 60 (WL) (Sask CA) at para 10; and Pierre v Minister of Manpower andImmigration), (FCA), [1978] 2 FC 849 (Fed CA) at 851.

There is no presumption that anyone who seeks anadjournment is entitled to it. See: Wagg v Canada, 2003 FCA 303 at paras 19-20, [2004] 1 FCR 206. [24] The Supreme Court of Canada in R v Barrette, (SCC), [1977] 2 SCR 121 articulated thegeneral rule applicable to adjournment applications at page 125 as follows: It is true that a decision on an application for adjournment is in the judge's discretion. It is, however, a judicial discretion so that hisdecision may be reviewed on appeal if it is based on reasons which are not well founded in law.

This right of review is especially widewhen the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings.… [25] In Lameman v Alberta, 2011 ABQB 40 at para 33, 51 Alta LR (5th) 117 [Lameman], for example, Yamauchi J.canvassed various recent authorities dealing with adjournment requests, and from them identified 11 factors which a court might considerwhen exercising its discretion to adjourn a trial.

The Lameman factors are: 33 … 1. courts should make a just determination of the real matters in dispute and they should decide cases on their merits; 2. the prejudice caused by granting or denying the adjournment; 3. the applicant’s explanation for not being ready to proceed; 4. the length of the adjournment the applicant is seeking and the consequent disruption of the court’s schedule; 5. the importance of effectively enforcing previous court orders; 6. the proper marshalling of evidence and prosecution of complex and multi-faceted actions; 7. whether there is a realistic expectation that the adjournment will accomplish its stated purpose; 8. the history of the proceedings, including other adjournments and delays, and at whose instance those adjournments and delaysoccurred; 9. where a party is seeking the adjournment to amend pleadings, how long counsel has known of the issue to which the amendment isaimed and whether counsel has had previous opportunities to amend; 10. whether the application is merely an attempt to delay the proceedings; and 11. the party who seeks the adjournment should not bear the consequences of its counsel’s failures. [26] This litany of factors has been endorsed in Banilevic v Cairney, 2020 SKQB 25.

To similar effect in other jurisdictions see, for example: Navarro v Doig River First Nation, 2015 BCSC 2173 at para 20, 84 CPC (7th) 163, and Ariston Realty Corp. v Elcarim Inc. (2007), (ON SC), 51 CPC (6th) 326 (Ont Sup Ct) at para 34. [27] Justice Yamauchi went on to emphasize that the decision whether to grant an adjournment requires “thebalancing of interests between the parties and the administration of justice in the orderly processing of civil trials”: Lameman at para 25.See further: Buckle at para 12, and Khimji v Dhanani (2004), (ON CA), 69 OR (3d) 790 (Ont CA) [Khimji].

Inaddition to ensuring the orderly processing of civil trials, it is also necessary “to effectively enforce court orders” when determiningwhether an adjournment of a scheduled trial is appropriate. See: Khimji at para 27. [28] Justice Danyliuk in Buckle, at para 12, for example, described the “balancing of interests” this way: [12] An adjournment request always involves a balancing of the rights of the parties involved, as well as a consideration of the properadministration of justice. The decision on an adjournment request involves an exercise of judicial discretion.

In exercising that discretion,a judge must consider whether the party seeking the adjournment will be placed at a serious disadvantage if that request is denied. Onemust balance that with a consideration of the prejudice accruing to the other side if the adjournment is given. The overarchingconsideration is to ensure the hearing is fair.

[ 29 ] These are the general legal principles I bring to bear on the respondent’s application to adjourn the upcoming trial. IV. Analysis [ 30 ] The reason for the adjournment of this trial requested by the respondent is the same reason she gave to Haaf J. at the pre-trial conference, and which Haaf J. rejected for postponing this trial for approximately 14 months. The one difference is that the respondent has filed affidavits from third parties corroborating her submission that it is dangerous to cattle for her to leave the farm for any extended period during calving season.

This was confirmed by the letter from Dr. Gervin. Although this document was not tendered by way of an affidavit, I am prepared to accept Dr. Gervin’s professional opinion as sound. [ 31 ] The only reported decision I could locate in which calving season formed the basis for an adjournment request is Hubley v Scott Slipp Nissan , 2003 NSSC 236 , 219 NSR (2d) 165 [ Hubley ] . This case involved an appeal from a small claims court adjudicator who found against Mr. Hubley and ordered him to pay an outstanding balance on an invoice. The adjudicator had earlier refused Mr.

Hubley’s request to adjourn the one-day trial for four months because of calving season. This trial proceeded in his absence. [ 32 ] The court allowed the appeal on the basis the adjudicator’s rejection of Mr. Hubley’s adjournment request amounted to a denial of due process: Hubley at para 17 . LeBlanc J. determined that the request was reasonable as Mr. Hubley was “a beef farmer [and] gave notice that two of his cows were in labour at the time of the hearing, and required his personal attention”: Hubley at para 18 .

Additionally, there was no evidence that he could have a qualified person attend to his farm duties “for 4-5 hours” on the scheduled day of trial: Hubley at para 28 . [ 33 ] Conversely, while an adjournment would admittedly inconvenience the plaintiff, Scott Slip Nissan Ltd., it would not prejudice it. The claim was for money allegedly owed to it, and an adjournment would allow the plaintiff, if successful, to claim an additional four months interest: Hubley at paras 19-20 . [ 34 ] Here, unlike Hubley , there is evidence of prejudice to the petitioner should this trial be adjourned until fall 2023.

As noted, the petitioner is represented by Mr. Kreklewich who has represented him for over a year and is ready to proceed to a trial on the scheduled dates. He is slated to retire and close his law practice at the end of June 2023. Adjourning this trial until fall means the petitioner will effectively be denied his counsel of choice. In the civil law context, taking away a litigant’s chosen lawyer should not be done lightly or without good cause.

As Schwann J.A. stated in Canadian National Railway Company v SSAB Alabama Inc. , 2019 SKCA 33 at para 40 (f) : “Courts have routinely recognized a litigant’s right to be represented by counsel of choice as a fundamental value in our justice system. This value is not discarded lightly without a serious and compelling reason to do so”. [ 35 ] Additionally, the scheduled trial dates were ordered by Haaf J., and only after attempts were made by her to accommodate the respondent’s

schedule as it related to calving season. It is plain from Haaf J.’s fiat, however, that the respondent strenuously resisted those attempts. Before Haaf J., the respondent insisted she could not be ready for trial before October 2023 at the earliest. Before me, the respondent relented somewhat and advised she might be available in September 2023. In any event, either of those dates exceed the timeline submitted by Mr. Krekelwich. [ 36 ] A further complicating factor is that there are now six judges of this Court who are conflicted on this file – an unusually large number.

This makes scheduling dates for this trial even more difficult. [ 37 ] I acknowledge that the respondent filed evidence before me which was not before Haaf J. at the pre-trial conference and which presents the respondent’s adjournment request in a more sympathetic light. This evidence underscores that at least from February to late April, calving season is likely at its height. The first week of trial is scheduled for the first week of April 2023. The second week is the last week of April. [ 38 ] In addressing the respondent’s adjournment application, I face two stark positions.

Should I grant this application, and adjourn this trial until fall, I am denying completely the petitioner’s right to be represented at trial by his counsel of choice. Should I deny this application, I am prejudicing the respondent’s ability to be present at her farming operation throughout the calving season. [ 39 ] I confess that I have struggled with what to do respecting this application. It comes exceedingly late in the day. After much consideration, however, I conclude like King Solomon, the fairest choice is effectively to “cut the baby in half”.

I am prepared to grant the respondent’s request to adjourn the first week of trial, i.e. from April 3 to April 7, 2023. That will allow her to be at the farm full-time until close to the end of April. As well, it will afford her further time to find some party or parties to assist her with her farming operation for the week of trial at the end of April. [ 40 ] This will also allow the petitioner to present his case with the assistance of his counsel of choice, Mr.

Kreklewich. (I note from the pre-trial conference report, it was estimated the petitioner’s case would take three days.) That will leave two days for the respondent to at least begin her presentation of evidence.

As further time will be needed to complete this trial, this issue can be dealt with during the week of trial commencing on April 24, 2023. [ 41 ] Finally, there was another issue raised during the application hearing related to appraisals of various properties and livestock sought by the petitioner and respondent respectively. [ 42 ] Since no dates for these appraisals to take place could be agreed to, I directed that each party should notify the other party 48 hours in advance of when their appraiser would be available. The other party should not withhold consent unreasonably to such an appraisal taking place.

V. Conclusion and Orders [ 43 ] Accordingly, on the respondent’s application for an adjournment, I make the following orders:

a) The first week of trial, i.e. April 3 to April 7, 2023 is vacated;

b) The trial will commence on April 24, 2023, and continue for one week;

c) Each party shall provide 48-hours-notice of their intention to have an appraiser attend at the other party’s property for purpose of obtaining an appraisal for this trial. Neither party shall unreasonably withhold consent for such attendance; and

d) Costs of this adjournment application to the petitioner in any event of the cause. J. G.G. MITCHELL