DIVISIONAL COURT FILE NO.: 5/03

HAMILTON FILE NO.: 99/1907

DATE: 20040308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DARLENE KING and TIMOTHY KING Personally, TAYLOR KING, KENNEDY KING and SHERIDAN KING, by their Litigation Guardian, Darlene King

Plaintiffs/Appellants

• and -

BELAIR DIRECT

Respondent/Defendant

Neil Sacks and Joanne Horton, for the Appellant/Plaintiff Darlene King

Ryan M. Naimark, for the Respondent/Defendant

HEARD at Toronto: February 20, 2004

O’DRISCOLL J.:

1The Appellant, Darlene King (Ms. King) one of the Plaintiffs, appeals to the Divisional Court under s. 19(1)(c) and s. 21(2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 from that part of the order of Master Linton, dated December 6, 2002, dismissing Ms. King’s claims for:

(a) special damages, and

(b) loss of income.

2On September 11, 2001, Borkovich J., on consent, made the following order:

1. THIS COURT ORDERS that the Plaintiff, Darlene King, answer all outstanding undertakings and refusals given by or on her behalf at the examinations for discovery on November 16, 2000 and continued on February 28, 2001, as more particularly set out in Exhibit “A” to this Order, within fifteen (15) days of the Order, failing which the Defendant may move with notice to dismiss the Plaintiffs’ claim. [Exhibit “A” contained twenty-two (22) undertakings]

2. THIS COURT ORDERS that the Plaintiff, Darlene King provide copies of all request letters made to various non-parties for the outstanding undertakings within seven (7) days of the date of the Order, failing which the Defendant may move to dismiss the Plaintiffs’ claim.

3. THIS COURT ORDERS that the Plaintiff, Darlene King, re-attend before an Official Examiner, at their own expense, at a time and place to be set by the defendant, to answer any questions arising out of the production of the outstanding undertakings and any proper questions arising therefrom failing which, the defendant, Belair, may move, with notice, to dismiss the Plaintiffs’ action.

3Ms. King’s appointed her present counsel and solicitors by Notice of Change of Solicitors, dated April 19, 2002.

4The Respondent/Defendant prepared a Notice of Motion, dated June 26, 2002, returnable at Toronto on July 9, 2002, seeking, inter alia:

1. An Order dismissing the Plaintiff’s, Darlene King, claim in Court File No.: 99-1907 for special damages and income loss, for failure to comply with the Order of Honourable Mr. Justice Borkovich, dated September 11, 2001, to answer the outstanding undertakings provided by her or on her behalf at the Examinations for Discovery held on November 16, 2000 and continued on February 28, 2001.

5That portion of the motion, on consent, came on before Master Linton, at Toronto, on December 6, 2002. It is common ground that as of that date the twenty-two (22) outstanding undertakings listed in Exhibit “A” to the September 11, 2001 order of Borkovich J. had been reduced to four (4) or five (5).

6The handwritten endorsement of Master Linton, dated December 6, 2002, states, in part:

3. …On Court file 99/1907, the Defendant has only asked that the Plaintiff’s, (Darlene King’s), claims for special damages and income loss be dismissed for want of due diligence in fulfilling undertakings after His Honour Judge Borkovich on September 11, 2001, ordered her to answer her outstanding undertakings within 15 days or face a motion to dismiss her claim. The Defendant could have requested to have the whole of her claims dismissed but elected to limit its request to only that relief to which the undertakings pertained. I find that there was a want of due diligence. It is not enough, for example, to say that documents are in storage, and, therefore, cannot be produced. Order to go as asked. Plaintiff’s claim for special damages and income loss struck out.

7Counsel for Ms. King launched this appeal on January 3, 2003.

8It is common ground that by February 24, 2003, the four (4) or five (5) undertakings that had been outstanding on December 6, 2002, were fulfilled. Before me, counsel for the Defendant agreed that the Defendant’s forensic accountant has been provided with the same material as Ms. King’s counsel/solicitor has provided to her expert, Rich Rotstein Limited. Before me, counsel for the Defendant agreed that he had never asked Ms. King to re-attend pursuant to para. [3] of the September 11, 2001 order of Borkovich J.

9Counsel for Ms. King submitted:

1. The order under review is a discretionary order of the Master which is final with regard to two (2) headings of damages and thus “the judge hearing the appeal is entitled to conduct a re-hearing and – after according some deference to the Master’s expertise in the field – to substitute his or her discretion for that of the Master”.

Hudon v. Colliers Macaulay Nicolls Inc. (c.o.b. Colliers International), [2001] O.J. No. 1588 (Div. Ct.) at para. [15]

See also: Stoicevski v. Casement (1983), 1983 1679 (ON CA), 43 O.R. (2d) 436, 438-9 (Ont. C.A.)

10The Master had the jurisdiction under Rule 30.08(2)(b) and Rule 60.12(b) to make the impugned order. However, it will be observed that under Rule 30.08(2)(c) and Rule 60.12(c), the Master also had the jurisdiction to “make such other order as is just”.

11As was pointed out by Wein J. in Newlove v. Moderco Inc., [2002] O.J. No. 4280 at para. [21]: “In my view the matter of the scope of the remedy is one within the discretion of the Court, to be determined in the context of the particular case. The limited case law that is available confirms this.”

12E. Macdonald J. in Robb v. St. Joseph’s Health Care Centre, [1998] O.J. No. 5395 (S.C.J.) at para. [6] said that Rule 30.08 is punitive and should “be imposed only in the clearest of cases”.

13The record before me:

(a) is not as it was before Charron J. in Lauzier v. Ranger, [1994] O.J. No. 2754 (O.C.J. – G.D.), where she said at para. [79]: “The evidence is overwhelming that the Plaintiff has failed to fully comply with Justice Soublière’s order with respect to production. More importantly, it has been made quite clear that she won’t. She has made it her official position before this court that in so far as she is concerned her disclosure obligations have been fulfilled. Consequently, there is no point in making any further order for production”.

(b) Does not show a “cavalier disregard towards their responsibility as litigants”.

Madonia v. Mulder, [2001] O.J. No. 1326 per Master Albert at para. [52]: affirmed by Div. Ct.: [2002] O.J. No. 487, per McCombs J.

(c) Does not show that “a litigant has failed so completely to meet his pre-trial responsibilities…., and where that failure has resulted in actual or potential prejudice to the opposite party, then that litigant has forfeited his right to a day in court”. See: Master Albert in Madonia at para. [53].

(d) Does not show any intentional and contumelious conduct that would negate the possibility of a fair trial and cause serious prejudice to the defendant. See: Birkett v. James, [1978] A.C. 297 (H.L.).

Conclusion

14In my view, on the record, to deny Ms. King her day in court on special damages and loss of income would result in an injustice because form would be allowed to triumph over substance.

15The appeal is allowed and that portion of the order of Master Linton, dated December 6, 2002, striking out Ms. King’s claim for special damages and loss of income, is set aside. The case is returned to take its proper place on the trial list at Hamilton.

16Before reserving judgment, counsel were asked for their submissions as to costs. Counsel for the Appellant advised that, if the appeal were successful, he was not asking for costs. No order as to costs.

O’Driscoll J.