Court File and Parties

CITATION: Burrell v. Regional Municipality of Peel Police Services Board, 2010 ONSC 1387

COURT FILE NO.: 201/09

DATE: 20100305

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Emlin Burrell, Plaintiff (Appellant) - and - The Regional Municipality of Peel Police Services Board et al., Defendants (Respondents)

BEFORE: Swinton J.

COUNSEL: Ernest J. Guiste, for the Plaintiff (Appellant) Maria Kotsopoulos, for the Defendants (Respondents)

HEARD at Toronto: March 4, 2010

Endorsement

[1] The appellant appeals from the decision of Master Dash dated March 27, 2009, in which he dismissed her action. The order was made after the respondents brought their third motion to dismiss the action for failure to abide by court orders.

[2] The action was commenced in May 2001. On June 27, 2006, counsel for the appellant consented to a motion requiring the appellant to answer undertakings by August 3, 2006. Because of non-compliance, the respondents brought the first motion to dismiss. On September 28, 2006, the Master ordered answers to undertakings by October 12, 2006.

[3] The parties returned to court on October 19, 2006, when the Master ordered the appellant to pay $5,000 in costs within 30 days. He expressly dealt with the issue of her impecuniosity, noting that she was on social assistance. While he expressed concern about access to justice, he stated that the appellant’s conduct “involves a total abandonment of her obligations as a litigant and of her failure to comply or make any efforts to comply with orders of the court”. He also observed that it was between the appellant and her counsel as to who should pay those costs. No appeal was taken from this order.

[4] In December 2006, the Master granted leave to the appellant to amend her statement of claim, but ordered costs of $1250 and costs thrown away to the respondents. This costs order was not appealed.

[5] In January, 2007, the respondents served a second motion to dismiss the action for failure to comply with the October 2006 order. This motion was not heard until September 2007, as the appellant sought to vary the costs orders of October and December 2006 before a judge. D. Brown J. dismissed the motion to vary on April 27, 2007 and later ordered costs. In his endorsement, he stated, “A person’s modest financial position cannot serve as an excuse to play by a different set of rules.”

[6] The Master dismissed a motion to vary the earlier costs orders in July, 2007.

[7] On November 2, 2007, the Master stayed the appellant’s action, rather than dismiss it. He gave very detailed reasons that set out the chronology of the case, and he concluded that there was no evidence that the appellant’s impecuniosity was responsible for her failure to answer undertakings. At para. 59, he stated, “Impecuniosity was clearly raised solely to avoid her responsibilities as a litigant and the consequences of breaching those responsibilities.” While he was of the view that a dismissal order would be just in the circumstances, he acknowledged that such a remedy is drastic, and so he ordered a stay until the October costs order was satisfied. He also allowed the respondents to move to dismiss the action if the stay was not lifted within six months.

[8] The Master subsequently ordered costs of $4,000 against counsel personally and $8,000 against the appellant (payable at $50 per month once the stay was lifted).

[9] An appeal from the stay order and the costs order was dismissed by Kelly J. in August 2008, and leave to appeal was denied by Carnwath J. in December 2008. He rejected an argument based on impecuniosity, noting the appellant’s failure to comply with court orders.

[10] The respondents brought a third motion to dismiss on March 27, 2009. The Master granted it, adopting again his November 2, 2007 reasons and noting that the appellant had had two and one half years to satisfy the October 2006 order. She had not done so, and in that period, she initiated a number of unsuccessful motions and appeals rather than pay the costs. He noted that impecuniosity had been considered at every step and concluded (at p. 75 of the Transcript):

In my view, the only order that is just at this time, recognizing that there are two parties to this litigation, that the Defendants have rights, too, and they continue to incur costs, even if $5000 and all of the sum and another $3500 is paid shortly, they have rights as well. They will continue to incur costs if this proceeds.

[11] The appellant appeals, arguing that the Master failed to give sufficient weight to her impecuniosity and ignored the denial of access to justice resulting from his order. As well, she seeks leave to have the costs orders to date reconsidered.

[12] Rules 57.03(2) and 60.12 provide a judicial officer with discretion to dismiss an action because of a party’s failure to comply with interlocutory orders. On appeal, an appellate court should not interfere with the exercise of discretion unless the judicial officer made an error of principle or made a palpable and overriding error of fact.

[13] The appellant argues that the Master erred in failing to follow Larabie v. Montfils (2004), 44 C.P.C. (5th) 66 (Ont. C.A.), where Blair J.A. refused to stay an appeal because of outstanding costs orders or to order security for costs where the appellant was impecunious and the appeal was not devoid of merit. He noted, however, at para. 21 that “[l]itigants are not free to ignore or flout orders of the court awarding costs against them….”

[14] The Master was conscious throughout these proceedings that the appellant was a person of very limited means. He discussed impecuniosity in each of his endorsements. However, he concluded that the appellant’s initial breach of the undertakings order was not the result of her impecuniosity. Moreover, impecuniosity is not a shield where a party has consistently failed to act reasonably (Christian Jew Foundation v. Christian Jew Outreach, [2007] O.J. No. 2140 (S.C.J.) at para. 69). The Master was concerned, as well, about fairness to the respondents in this case. In my view, he made no error of principle nor any palpable and overriding error in his appreciation of the facts.

[15] The appellant also seeks leave to have the earlier costs orders reconsidered. This relief was not sought in the Amended Notice of Appeal. In any event, I would not grant leave. The October 2006 order was never appealed. Other costs orders were the subject of an unsuccessful appeal and leave to appeal motion. The appellant has also brought two unsuccessful motions to vary the 2006 orders. There is no reason to consider these orders yet again, and leave is denied.

[16] For these reasons, the appeal is dismissed. Costs to the respondents are fixed at $1,500.00 all inclusive.

Swinton J.

Date: March 5, 2010