Court of Appeal for Ontario
Judges: Cronk, Gillese and Brown JJ.A.
Between:
Mark Ashley Plaintiff (Appellant)
and
Albert Reinhart Defendant (Respondent)
Counsel:
Richard Campbell, for the appellant
Anthony Bedard, for the respondent
Heard: March 11, 2015
On appeal from the order of Justice Robert D. Reilly of the Superior Court of Justice, dated August 21, 2014.
Endorsement
1The appellant was initially represented by counsel but, at the material times in the proceedings below, he was self-represented. He is represented by counsel on appeal to this court.
2Shortly before trial, by order dated August 21, 2014 (the "Order"), the appellant's claim was dismissed and the respondent was awarded $48,000 in costs. The dismissal was due to the appellant's persistent and deliberate failure to comply with court orders requiring him to fulfill his disclosure and production obligations.
3On appeal, he asks this court to reinstate his action.
4We see no basis on which to interfere with the Order. Given the appellant's repeated flouting of court orders, the order under appeal was a reasonable exercise of discretion pursuant to rule 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
5On August 7, 2014, the appellant was given a "last chance" order to produce his list of witnesses and a sworn affidavit of documents or else face the dismissal of his action. He was given a choice between this option and proceeding to trial, but only with those documents and witnesses that had been disclosed to the other side. The appellant chose the option that required him to comply with his disclosure and production obligations. He made no attempt to fulfill those obligations in the allotted time.
6While no reasons were given for the Order, it is clear that it implements an earlier court order which required the appellant to comply with his disclosure and production obligations within seven days or face dismissal of his action. That earlier order specifically provided that, in the event of the appellant's non-compliance, the respondent could move for dismissal without notice. The respondent did so.
7We reject any suggestion that the appellant, as a self-represented litigant, was not fairly treated. The record makes it clear that the orders in question were repeatedly explained to him and he was given considerable assistance by both the courts and opposing counsel. His response was to ignore the judicial advice and threaten opposing counsel with death, for which he was convicted in a criminal court.
8Accordingly, the appeal is dismissed with costs to the respondent fixed at $6,000, inclusive of disbursements and all applicable taxes.
"E.A. Cronk J.A."
"E.E. Gillese J.A."
"David Brown J.A."
