COURT FILE NO.: 761/03
DATE: 20040714
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1066087 ONTARIO INC.
Plaintiff
(Appellant)
Nicholas C. Tibollo for the appellant (plaintiff)
- and -
CHURCH OF THE FIRST BORN APOSTOLIC INC., LUDLOW LEACROFT MILLER, OSWALD HUBERT JONES, METROPOLITAN CHURCH OF GOD, HECTOR MAYERS, and X-SELL REALTY LTD.
Albert S. Frank for the respondent Church of the First Born (Apostolic) Inc.
Stephen C. Nadler for the respondent X-Sell Realty Ltd.
Defendants
(Respondents)
Heard: June 4, 2004
FERRIER J.:
[1] The appellant appeals the orders of Master Dash dated December 4, 2003, and December 17, 2003. The first order dismissed the action with costs of the action and the motion with other consequential procedural relief. The second order was for payment out of court of monies paid in earlier by the defendant First Born.
[2] For the reasons which follow the appeal is dismissed.
[3] This action is approximately seven and a half years old. It was transferred into Case Management in May 2002. Prior to that point"both the plaintiff and defendants were somewhat dilatory in their duties as litigants", as noted by the learned Master in his reasons. It is also apparent however that the file was dormant for approximately four years prior to May 2002 because the plaintiff failed to move the action along.
[4] The learned Master found that the delays and breaches of orders since May 2002 lie entirely at the feet of the plaintiff.
[5] It is not necessary in these reasons to lay out all the specifics of the breaches alleged and found established by the learned Master. They are set forth clearly and concisely in his reasons.
Standard of Review
[6] Although there was delay alleged and established on the motion, the basis of the motion and the relief granted was the plaintiff's breaches of an order made by Master Dash on March 11, 2003. These breaches brought into play the application of rules 60.12 and 77.10(7).
[7] It is common ground that the learned Master had the authority to dismiss the action under both rule 60.12 and 77.10(7).
[8] Shortly put, rule 60.12 gives the power to the court to dismiss a proceeding for failure to comply with any interlocutory order. Rule 77.10(7) gives the court similar power for failure to comply with a timetable requirement established by an order of a Case Management Master.
[9] The standard of review by the Divisional Court in reviewing the final order of a master "requires a measure of deference to the court of first instance and only to interfere in the event of palpable and overriding error in the decision rendering it clearly wrong. This standard applies both to findings of fact and to the application of legal principles … ."
Woodheath Developments Ltd. v. Goldman (2003), 66 O.R. (3d) 731 (Div. Ct.) at 731.
Analysis
[10] In clear and concise reasons, the learned Master, well-supported by the evidence, found that the appellant had breached the following orders:
(1) July 29, 2002, to pay the first instalment due on a security for costs order, within 30 days together with costs in favour of the defendants within thirty days. Neither was paid until December 19, 2002, the return date of a subsequent motion to dismiss for breach of the July order.
(2) The plaintiffs failed to deliver an executed release to the defendant X-Sell within ten days, a term of the order of March 11, 2003. An undated signed photocopied release was delivered on December 4, 2003. An original executed release still had not been delivered at the time of the argument of this appeal.
(3) On March 11, 2003, the plaintiff was ordered to deliver its calculation of damages, copies of damages documentation in support and a further and better affidavit of documents no later than April 30, 2003. This was essential in order that the discovery of the plaintiff could usefully continue on the damages issue. A deadline of June 20, 2003, was given for the plaintiff's discovery. The plaintiff breached the order and as a result the examination could not proceed. Despite the orders having been made, the plaintiff's counsel, in mid-June 2003, took the position that a calculation of damages would be provided in an expert's report, which would in turn be provided pursuant to the Rules and the Evidence Act (i.e. at least 90 days before the trial), and not as ordered by the Master.
(4) The plaintiff was still in breach of the March 11, 2003, order as of November 7, 2003.
(5) On the date of the motion before Master Dash resulting in the order under appeal, the plaintiff delivered a purported expert's report on calculation of damages. Despite its deficiencies, the learned Master took the position that the plaintiff had belatedly complied with the March order.
(6) Notwithstanding the foregoing, as of December 4, 2003, the date of the hearing of the motion, the plaintiff still had not provided documentation in support of the damage calculation and still had not delivered an appropriate supplementary affidavit of documents.
[11] As a result of the breaches of the plaintiff, the action could not progress to the point of examinations for discovery on damages. The learned Master correctly held that the plaintiff had shown utter disregard for the orders of this court, and that it would be unfair to require the defendant First Born to continue to incur costs defending the action.
[12] It was within the discretionary power of the Master to dismiss the action as a result of his discretionary determination that no order would be more just under rules 60.12 and 77.10(7).
[13] The learned Master did not err in principle nor did he err in the exercise of his discretion.
[14] As to the question of costs, the learned Master awarded costs on a substantial indemnity scale, appropriate in the circumstances of the case. Once again his discretion was exercised on appropriate principles.
[15] Accordingly, the appeal in reference to each order is dismissed.
[16] Following argument, I heard submissions from counsel on the question of costs depending upon the ultimate result. Mr. Nadler for X-Sell does not seek costs.
[17] Clearly the defendant First Born is entitled to its costs. The defendant asks for costs on the substantial indemnity scale but I am of the view that in the context of the appeal there is no basis for awarding costs on a substantial indemnity basis, notwithstanding the fact that it was appropriate to award such costs for the action and the motion before Master Dash. The defendant asks that the costs be assessed and an order will go for an assessment of the costs in favour of the defendant First Born, on the partial indemnity scale.
Ferrier J.
Released: July 14, 2004
cc
COURT FILE NO.: 761/03
DATE: 20040714
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1066087 ONTARIO INC.
Plaintiff
(Appellant)
- and -
CHURCH OF THE FIRST BORN APOSTOLIC INC., LUDLOW LEACROFT MILLER, OSWALD HUBERT JONES, METROPOLITAN CHURCH OF GOD, HECTOR MAYERS, and X-SELL REALTY LTD.
Defendants
(Respondents)
REASONS FOR JUDGMENT
FERRIER J.
Released: July 14, 2004
cc