This matter was an Endorsement from Justice Romaine with regards to certain procedural issues arising from what was known to the Court as the “second remand” hearing.

The Court was tasked with making decisions on certain directions pursuant to Rules 4.2, 4.7(2) and 4.9 in order to facilitate the ultimate hearing of the second remand issue and finalizing the extensive litigation between the parties with respect to the joint ownership of a powerplant.

On November 2, 2023, the Court noted that in one of the Notices of Appeal filed by the Defendant during the course of the first remand, the Defendant had appeared to object to the Court “unilaterally” taking over the “case management” of the hearing, although no objection had ever been made before the Court with respect to this issue.

However, on November 24, 2023, Defendant’s counsel stated that the Defendant had never agreed that the Court would “play a case management role” going forward, referring to Rule 4.15. It was the Defendant’s position that Court did not have the authority to place the matter in case management.

The Court’s emphasized that Rule 4.2 makes it the responsibility of the parties to manage their dispute, and to plan its resolution and requires the parties, when the complexity or the nature of an Action requires it, to apply to the Court for direction, or request case management under Rule 4.12. However, it was clear to the Court that the parties could not agree to a plan to have the remand go forward. Rule 4.7(2) indicates that, on application, the Court may adjust or set dates by which a stage or a step in the Action is expected to be complete. The Court stated that Rule 4.9 provides a Court, or a party who is not satisfied that an Action is being managed in accordance with Rule 1.2, to make (or apply for) a procedural or any other appropriate Order. The Court stated that Rules 4.10 and 4.11 provide further support for a Court making procedural or any other Orders that may aid in the resolution of the proceedings.

Further, the Court concluded that there had been a request for case management, and no Order granting case management, as required by Rule 4.12(1) and Rule 4.13. Therefore, Rule 4.15, which the Defendant suggested prevented the Court from continuing to make procedural Orders to move the matter to a hearing, had no relevance to the situation.

The Court did state that the Defendant could make such an Application, despite the fact that that it was not the preparation stage of a new Trial, but the continuation of a Trial that had been referred back to the Trial Court by the Court of Appeal.

Therefore, until and unless the Defendant made an Application for case management under Rule 4.12 and such Application is granted, the Court held that it could and would continue to make directions and hear Applications on pre-hearing issues with the goal of facilitating and scheduling the second remand hearing.