CITATION: Steen v. 3902641 Can Inc., 2015 ONSC 1086
COURT FILE NO.: DC-13-1971
DATE: 2015/02/20
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: EVERT JAN STEEN, Appellant / Plaintiff
AND
3902641 CANADA INC. (N-VisionIT Interactive) – Respondent / Defendant
BEFORE: Hackland J.
COUNSEL: Monick L. Grenier, for the Appellant / Plaintiff
T. Kirk Boyd, for the Respondent / Defendant
HEARD: January 20, 2015 (Ottawa)
ENDORSEMENT
[1] The appellant appeals the final order of Master MacLeod following a motion heard September 20, 2013 in which the respondent successfully sought an order dismissing the action because of the appellant’s repeated failure to comply with orders requiring him to answer undertakings, particularly the order of Master Roger dated May 8, 2013.
[2] The appellant submits that Master MacLeod erred in taking the extreme step of dismissing the appellant’s action without first giving him a last chance to comply with the outstanding court order to answer undertakings. It is submitted that a clear last chance order was particularly important because a dismissal order is a discretionary remedy of last resort and because the appellant was self-represented and unsure of his legal rights.
[3] The case law establishes that a court should not interfere with the final order of a Master unless it is clearly wrong or reflects a “palpable or overriding error” (see: Peters v. Prince; Bank of Nova Scotia v. Liberty Mutual Insurance Co..
[4] On December 6, 2012, the respondent brought a motion seeking an Order dismissing the appellant’s action on the grounds that he failed to answer discovery questions put to the Plaintiff in writing and for failing to answer outstanding undertakings in accordance with the Rules of Civil Procedure and prior endorsements of the court. The respondent’s December 6, 2012 motion was heard before Master Roger who reviewed outstanding answers and undertakings and found that twenty-seven (27) questions and undertakings were outstanding and required more complete answers. In a comprehensive Order dated December 7, 2012, Master Roger ordered the appellant to answer a specific list of questions and undertakings by February 15, 2013.
[5] Master Roger declined to dismiss the appellants action, explaining:
Considering: that the previous orders were made at case conferences without assessing the sufficiency of the answers; that the previous orders were not specific but rather a general request to both parties to ensure that their answers were complete; that the parties are self-represented; that some efforts have been made by the Plaintiff to provide some answers; that most of the outstanding questions are follow-up questions arising from previous answers (there have been a number of follow-up questions) and considering generally the concept of proportionality, what is just in the circumstances is not to dismiss the action for failing to comply with previous orders and for not fully answering questions but rather to order that outstanding questions, as they are outlined below, be answered by February 15, 2013.
[6] Master Roger did caution that, “the Plaintiff is, however, on notice that he must comply with this Order in a timely manner as this court might exercise its discretion differently should a similar motion return.”
[7] A further case conference was held on February 27, 2013 before Master MacLeod. On this occasion, the appellant was represented by counsel. Master MacLeod ordered the appellant to answer all outstanding undertakings by March 8, 2013 and indicated in his Order that if the appellant failed to comply, the respondent “may seek to stay or dismiss the action.”
[8] A further case conference was scheduled for May 8, 2013 before Master Roger in order to secure a date for a long motion. The respondent intended to seek an order dismissing the action on the grounds that the appellant had failed to comply with earlier court orders with respect to outstanding undertakings and discovery questions. However, counsel for the appellant and the respondent reached an agreement pursuant to which Master Roger made an Order requiring the appellant to answer all outstanding discovery questions and undertakings on or before June 15, 2013. Master Roger’s order dated May 8, 2013 included a “last chance” warning:
If the plaintiff fails to provide any additional answers following receiving the list of outstanding undertakings to be provided by May 10, 2013, then the Plaintiff’s action shall be dismissed with costs to the Defendant upon the Defendant filing with the court an affidavit that no additional answers were provided. This shall be brought as a basket motion in writing with notice to the Plaintiff.
[9] The appellant discharged his counsel in early June 2013 and resumed representing himself.
[10] On June 19, 2013, following the expiry of Master Roger’s June 15, 2013 deadline, respondent’s counsel sent an email to the appellant to advise that the respondent would be bringing a motion for an Order dismissing his action pursuant to Master Roger’s May 8, 2013 Order. The appellant did not file any materials in opposition to the respondent’s motion or in support of his cross motion which was, in essence, a request that the court “re-assess” Master Roger’s Order of May 8, 2013, which had not been appealed.
[11] Master MacLeod heard the respondent’s motion on September 20, 2013. At the hearing, the appellant confirmed that he understood Master Roger’s previous order requiring him to answer discovery questions and undertakings. He argued before the Master that he was wrongfully being required to answer questions that he considered to be irrelevant and he sought to re-argue Master Roger’s order. Master MacLeod clearly explained that he had no jurisdiction to re-consider Master Roger’s order, which had not been appealed.
[12] A review of the motion transcript discloses that Master MacLeod advised the appellant that he could consider allowing him an additional period of time to answer the questions and undertakings in response to which the appellant stated that he would not provide further answers unless the Court would guarantee that he would not have to answer any further questions.
[13] Master MacLeod issued comprehensive reasons for his decision dismissing the plaintiff’s action, concluding as follows:
Mr. Steen made it abundantly clear during the motion that he has made no attempt to answer the remaining undertakings because he does not agree he should have to. He states that they are not relevant and are too much work. When I asked him if he would comply with the order if I gave him a further 30 days, he advised me he would only do so if the court could guarantee he would not then be asked more questions.
Under the circumstances I have no option but to conclude that the failure to answer the undertakings constitutes willful and intentional disregard of a court order. As stated by Ferrier J. in 1066087 Ontario Inc. v. Church of the First Born Apostolic Inc. et al. cited by counsel for the defendant, where a plaintiff has shown utter disregard for the orders of the court, it is unfair to require the defendant to continue to incur costs defending the action. A similar conclusion was reached by the Divisional Court in Vacca v. Banks (2005 6 C.P.C. 22. In any event, Master Roger has already ordered that the action be dismissed if there was failure to comply and that order was not appealed.
Accordingly the action of the plaintiff is dismissed with costs of the motion. The costs are fixed at $2,800.00 on a partial indemnity scale.
[14] In my opinion, the order of Master Roger of May 8, 2013, made it abundantly clear that he was providing the appellant with a last chance to comply with the orders of the court to answer undertakings. This order was made pursuant to a consent disposition negotiated by the appellant’s own counsel. Still, the appellant refused to comply with that order.
[15] When the motion to dismiss the action was brought on before Master MacLeod, the appellant sought to re-argue the refusals motion that had previously been decided by Master Roger. Following a careful and patient explanation of the issue and the consequences of the motion, Master MacLeod sought an assurance from the appellant that if he granted a further 30 day extension to answer the questions and undertakings, his order would be complied with. In response, the appellant demanded assurances from the court that he would not be asked to answer any further questions. In these circumstances, I am unable to appreciate how the Master could reasonably have been expected to extend any further indulgences to the appellant.
[16] In Vacca v. Banks, Mr. Justice Ferrier of the Divisional Court made the following observations when he affirmed a Decision of Master Birnbaum dismissing a plaintiff’s action for non-compliance with court orders in very similar circumstances:
Repeated delays and failures to comply with procedural orders affect not only the parties to the action. They significantly increase the cost of the administration of justice due to the impact on administrative and judicial resources. Repeated breaches of orders must attract significant sanctions otherwise the Case Management Rules will become ineffectual and the ultimate goal of the rules will be unattainable.
The rules must not be rendered nugatory by failure to impose appropriate sanctions in case of breach of orders.
Rules 30.08(2)(b), 60.12 and 77.10(7), specifically provide for the dismissal of a plaintiff’s action in such circumstances.
Furthermore, although the Master found prejudice to the defendants, in my view it was unnecessary to make such a finding as a factor supporting a dismissal of the action.
There comes a time when this court is obliged to meet its responsibility for the effective administration of justice through case management by dismissing an action. Such is the case when the plaintiff repeatedly fails to comply with orders of the court whether or not there has been prejudice to the defendants.
In the circumstances of four breached order, including the “last chance” order, the Master realistically had only two options – one was to give the plaintiffs yet another chance – the other was to dismiss the action.
Not only am I unable to find error in the exercise of discretion by the Master, I am of the view that her Decision was correct.
[17] In conclusion, I am not persuaded that the Master was clearly wrong in ordering the dismissal of this action and indeed I think he was correct. I find that the appellant was well aware that he had been provided with a last chance to comply with Master Roger’s order to answer undertakings and even when queried by Master MacLeod as to his willingness to comply if granted a further extension, the appellant sought to bargain with the court to impose inappropriate conditions. The appeal herein is dismissed.
[18] I would note that the respondents have a counterclaim in this action. They have advised the court that they will agree to dismiss the counterclaim without costs upon dismissal of the main action.
Mr. Justice Charles T. Hackland
Date: February 20, 2015
CITATION: Steen v. 3902641 Can Inc., 2015 ONSC 1086
COURT FILE NO.: DC-13-1971
DATE: 2015/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: EVERT JAN STEEN, Appellant / Plaintiff
AND
3902641 CANADA INC. (N-VisionIT Interactive) – Respondent / Defendant
BEFORE: Hackland J.
COUNSEL: Monick L. Grenier, for the Appellant / Plaintiff
T. Kirk Boyd, for the Respondent / Defendant
ENDORSEMENT
Mr. Justice Charles T. Hackland
Released: February 20, 2015