2010 ONSC 6696, 2010 ONSC 6696

CITATION : Urbisci v. Urbisci, 2010 ONSC 6696 COURT FILE NO.: 03-88/10 DATE: 20101206 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Franco Urbisci and Floriana Tetford, Applicants AND: Maria Urbisci, Trillium Health Centre, Stephania Urbisci, also known as Stefania Urbisci and The Public Guardian and Trustee, Respondents BEFORE: D. M. Brown J. COUNSEL: Franco Urbisci and Floriana Tetford, in person S. Philbert, for the Respondent, Maria Urbisci J. Herszkopf, for the Respondent, Stephania Urbisci D.

Bur, for the Public Guardian and Trustee HEARD: December 2, 2010 REASONS FOR DECISION [ 1 ] In my Reasons released November 8, 2010, I ordered the parties to attend a mediation before the end of November. On November 22, 2010, Mr. Philbert, counsel for Maria Urbisci, wrote to me advising that a mediation would not be held because of constraints in the unnamed mediator’s schedule, as well as due to Maria’s poor health. Mr.

Philbert requested an opportunity to speak to this proceeding with a view to obtaining a variation of my orders. [ 2 ] In my letter to the parties dated November 24, 2010, I informed the parties that I would hear them on December 2, 2010, but directed Maria’s counsel to serve and file a detailed explanation from Maria’s attending physician describing what illness prevented her from attending a mediation and to serve and file any updated medical information about Maria’s capacity.

I also stated that I was “very, very disappointed” that a mediation had not occurred. [ 3 ] Maria did not serve and file any new materials prior to the return of the matter before me on December 2, 2010. [ 4 ] At the hearing on December 2, Mr. Philbert filed a Supplementary Cross-Application Record. I criticized the timing of the filing of those materials in very strong terms. I described counsel’s conduct as unprofessional. When a court orders, as I did in my letter of November 24, 2010, that certain materials be served and filed for a hearing, those materials must be filed in advance of the hearing.

The Rules of Civil Procedure so provide. They do so in order that the presiding judge has the opportunity to review the materials in advance of the hearing, instead of reading materials, or portions of the materials, on the fly. The failure of Mr. Philbert to adhere to my direction was a serious one; it should not have happened; and, it must never be repeated. [ 5 ] I heard submissions from Mr. Philbert and Floriana Tetford about why the mediation did not take place. In the absence of reviewing all the correspondence that passed between Mr. Philbert and Mr.

Wagner, former counsel for the applicants, I cannot ascertain precisely where the fault lay. But, from the submissions I heard, certainly it appears to me that the parties decided to subordinate compliance with my order to what they perceived to be tactical considerations. That was improper. I made the order mandating mediation appreciating that it imposed a tight timeframe on the parties. But the circumstances of this case – specifically, Maria’s terminal illness – necessitated such urgency.

When a court makes an order the parties must comply with it and they must put to one side personal scheduling issues and petty tactical bickering to focus on the more important issue of complying with the order. [ 6 ] Mr. Philbert submitted that Maria’s medical condition prevented her participation in the mediation. I do not accept that explanation. The brief note of November 18, 2010, from a Dr.

Lo simply stated that Maria was under stress and that “I would recommend that she do not go through the mediation process as she is very concerned about this and medically I do not think she can handle this stress.” Maria was present in court on December 2. I learned that she planned to attend that afternoon a Mandatory Information Program session at the Brampton courthouse in the matrimonial litigation which she commenced and with which she very much wants to proceed. She has also arranged a case conference in her matrimonial litigation for early January, 2011, and she plans to attend that conference.

I therefore conclude that Maria is prepared to attend mandatory sessions in the litigation which she started, but elected not to participate the mandatory mediation which I ordered in this proceeding started by her husband and daughter. It is not open to a party to pick and choose which court orders she wishes to observe. [ 7 ] Consequently, I continue my order that the parties to this proceeding must attend a mandatory mediation under Rule 75.1 of the Rules of Civil Procedure .

I will not fix a new outside date for that mediation, but I order that no party to this proceeding may take any further step in this proceeding, including initiating or continuing a motion, prior to the completion of the mediation which I have ordered.

[ 8 ] As to the claim by Maria in her cross-application for partition and sale of the matrimonial home, I direct that her claim be dealt with in the context of her matrimonial litigation, not in this proceeding. [ 9 ] Finally, I would encourage the parties to attempt to agree on the costs of the November 2, 2010, hearing. If they cannot, any party who wishes to seek costs shall serve and file with my office, at 361 University Avenue, written cost submissions, together with a Bill of Costs, no later than Wednesday, December 15, 2010.

Any party who wishes to respond to the cost submissions of any other party must serve and file with my office responding written cost submissions no later than Wednesday, December 22, 2010. Such responding cost submissions must include a Bill of Costs setting out the costs which that party would have claimed on a full, substantial, and partial indemnity basis. If a party opposing a cost request fails to file its own Bill of Costs, as I have directed, I may take that failure into account when considering the objections made by the party to the costs sought by any other party.

The costs submissions shall not exceed three pages in length, excluding the Bill of Costs. D. M. Brown J. Date: December 6, 2010