Court File and Parties
COURT FILE NO.: CV-17-577128 DATE: 2023 02 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MUTHU PONNAMPALAM, Plaintiff - and - PIRAMENTHIRATHEESAN THIRAVIANATHAN, Defendant
BEFORE: Associate Justice Todd Robinson
APPEARING: M. Ponnampalam, in person P. Thiravianathan, in person
HEARD: November 23, 2022 (by videoconference)
REASONS FOR DECISION (Motion to Strike Defence)
[1] Muthu Ponnampalam brings this motion seeking an order striking the defence of Piramenthiratheesan Thiravianathan for ongoing breaches of both court orders and his obligations as a defendant under the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). The action involves a claim by Mr. Ponnampalam for significant damages arising from a series of alleged defamatory internet postings. Mr. Thiravianathan denies the allegations.
[2] I have sympathy for Mr. Thiravianathan’s circumstances. I do not doubt the genuineness of his frustration at being forced to defend a claim that he feels lacks merit and has been brought solely to intimidate him. Nevertheless, Mr. Thiravianathan has various procedural avenues by which he may seek a summary disposition of Mr. Ponnampalam’s claim. Ignoring court orders and his obligations under the Rules is not one of them.
[3] Despite several opportunities being afforded to Mr. Thiravianathan to put forward proper responding materials that address his reasons for non-compliance with court orders and discovery obligations, he did not do so. In response to this motion, all I have from him is evidence focused on the lack of merit to Mr. Ponnampalam’s claim and his opinion on the true intention behind why this action was commenced.
[4] Mr. Thiravianathan has not adequately addressed his ongoing non-compliance with procedural obligations and court orders. He asserts that he did not understand what was required of him. However, there is no evidence of any attempts by Mr. Thiravianathan to investigate or understand his obligations or how to comply with them.
[5] I have considered whether to afford Mr. Thiravianathan a final opportunity to comply with the prior orders and procedural obligations before striking his defence. However, there is nothing before me supporting that doing so will make a difference. Mr. Thiravianathan has already agreed to dates in consent orders that he has failed to comply with. Moreover, in the face of this motion, Mr. Thiravianathan has done nothing to remedy his breaches. In these circumstances, I am granting the order striking Mr. Thiravianathan’s defence.
Analysis
[6] Whether to strike a pleading is a discretionary decision. On motions of this nature, given the severity of the relief, courts are concerned with the balance between having claims defences adjudicated on their merits and ensuring that the administration of justice is not undermined by litigants failing to comply with court orders and their statutory obligations as litigants.
[7] Mr. Ponnampalam moves for an order striking Mr. Thiravianathan’s defence under rules 3.04(4), 30.08(2), 34.15(1), 57.03(2), and 60.12 of the Rules. Mr. Ponnampalam has also sought to have Mr. Thiravianathan’s responding materials struck, but I have not found it necessary to address that argument. In my view, even considering Mr. Thiravianathan’s sworn statements, I am satisfied that his ongoing breaches of court orders and procedural obligations have not been sufficiently explained and a further chance to remedy those breaches is not warranted in all the circumstances.
[8] For clarity, I do not dispute the genuineness of Mr. Thiravianathan’s assertion to me that he is not intentionally refusing to follow court rules, but simply does not know how to do it. I believe him when he says that if someone will give him directions on what is required, he will follow those directions. However, that sentiment expressed to me during oral submissions appears to have been lacking outside of court. Based on the record before me, Mr. Thiravianathan has failed to make any reasonable efforts to understand his discovery obligations and what was meant by the timetable orders to which he consented.
[9] Had Mr. Thiravianathan shown concerted or genuine efforts to understand and comply with the prior court orders and discovery obligations, I may have taken a different view. The record supports no efforts at all. It supports that Mr. Thiravianathan, since becoming self-represented, has been content to put essentially no effort into complying with the orders and his litigation obligations, and to do nothing in this litigation until forced to act by motions such as this one.
a. Failure to comply with court-ordered timetables
[10] Subrule 3.04(4) of the Rules affords discretion to a judge or associate judge to strike out the defence of a party that fails to comply with a timetable, or to make such other order as is just.
[11] The definition of “timetable” in subrule 1.03(1) includes schedules to complete steps to advance the proceeding made by court order or by agreement of the parties. Mr. Ponnampalam points to both agreed timetables and court-ordered timetables. I have focused on the latter.
[12] Mr. Thiravianathan has breached multiple court-ordered timetables. Although Mr. Ponnampalam cites several motion scheduling timetable orders, which I agree were breached, I am particularly mindful of the breaches of two timetable orders: the order of La Horey A.J. dated November 23, 2021, which fixed a discovery plan and timetable for discovery-related steps, and my own order dated June 15, 2022, which fixed a further timetable for Mr. Thiravianathan to serve his sworn affidavit of documents and attend an examination for oral discovery. Both orders were issued on consent. Nevertheless, despite consenting, Mr. Thiravianathan did not serve an affidavit of documents and has not produced himself for an examination for discovery.
[13] In 1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd., 2015 ONSC 1632, at para. 55, Emery J. commented, “In view of the powers given to the court to enforce a timetable, parties who fail to comply with any step or deadline set by a timetable do so at their own peril.” I agree with that comment. There is no evidence of any efforts by Mr. Thiravianathan to understand or comply with either of the two timetable orders, both of which were issued with his consent. That is significant in my decision on this motion.
b. Failure to serve an affidavit of documents
[14] Subrule 30.08(2) of the Rules affords discretion to the court to strike out a defendant’s statement of defence where the defendant fails to serve an affidavit of documents or produce a document for inspection in compliance with the Rules, or to make such other orders as is just.
[15] Subrule 30.02(1) of the Rules provides an express obligation that all parties in litigation must disclose every document relevant to any matter in issue in the action that is or has been in the possession, control or power of the party, whether or not privilege is claimed in respect of the document. Rule 30.03 further requires all parties to prepare and serve an affidavit of documents in Form 30A or Form 30B (as applicable) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.
[16] In Advanced Farm Technologies-JA v. Yung Soon Farm Inc., 2021 ONCA 569, at para. 10, the Court of Appeal reviewed applicable considerations on a motion to strike a pleading under rule 30.08(2) for non-compliance with document disclosure obligations. They are directly applicable to this case. I summarize them as follows:
(a) Striking a pleading is not restricted to “last resort” situations, but courts do typically want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading;
(b) A number of common sense factors should be considered, including:
(i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case;
(c) Where breaches of disclosure and production obligations are alleged, merits of a party’s claim or defence may play only a limited role, since a party having a strong claim or defence is reasonably expected to comply promptly with its disclosure and production obligations.
(d) Proportionality of striking a pleading should also be considered in the circumstances of the case, in respect of which the court should assess:
(i) the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action; and (ii) to what extent the defaulting party’s failure to comply with its disclosure and production obligations has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute.
[17] Mr. Ponnampalam served his initial affidavit of documents in January 2018. He has more recently served a fresh affidavit of documents in February 2022 pursuant to the consent discovery plan and timetable order of La Horey A.J. As already noted, I made a further consent order for Mr. Thiravianathan to serve an affidavit of documents, which was to be served within sixty days of June 15, 2022. The record before me supports that Mr. Thiravianathan has not produced any documents beyond the handful of documents tendered in response to this motion and referenced in Mr. Thiravianathan’s written statements. Most, if not all, of those documents appear irrelevant to the pleaded issues in dispute.
[18] The factors outlined by the Court of Appeal favour striking Mr. Thiravianathan’s defence. Mr. Thiravianathan has already been provided with multiple opportunities to comply with his production obligations. This is not a situation where failure to produce his affidavit of documents is inadvertent. Mr. Thiravianathan consented to two orders that clearly provided fixed deadlines for him to produce his documents. Mr. Thiravianathan did not comply and has provided no convincing argument for why he was unable to comply.
[19] Mr. Thiravianathan submits that if he knew what he was supposed to do, he would have done it, but that he does not understand and does not know from whom to seek help. My difficulty with that submission is that nothing before me supports that Mr. Thiravianathan has taken any steps, let alone reasonable steps, to investigate the requirements for an affidavit of documents or how to prepare one. He submits that he thought Mr. Ponnampalam would let him now what other documents were needed, but it is not a plaintiff’s obligation to tell a defendant what they must do to satisfy their production obligations.
[20] Mr. Thiravianathan has chosen to represent himself in this litigation, as he is entitled to do. In making that election, though, he is expected to make efforts to familiarize himself with the Rules and his litigation obligations. Self-represented litigants are not excused from compliance with the Rules and court orders. Familiarizing himself with litigation obligations may involve consulting with a lawyer or pro bono legal services, or simply taking advantage of the many free online resources intended to help self-represented litigants or individuals who are unfamiliar with our civil justice system. That includes many resources that are directly linked on the Superior Court of Justice’s website.
[21] In my view, Mr. Thiravianathan has not demonstrated any reasonable efforts to investigate his production obligations or what was meant by the orders to which he consented. He has also demonstrated no reasonable efforts to comply with those obligations. In that context, his failure to produce relevant documents in his possession, control, or power is clear, unequivocal, and not inadvertent.
[22] Moreover, Mr. Thiravianathan has provided no clear commitment to a date by which he will cure his default and serve an affidavit of documents. Notably, in the period between Mr. Ponnampalam serving his motion materials in May 2022 and the motion hearing in November 2022, and despite my interceding order, Mr. Thiravianathan took no steps to cure his default.
[23] Mr. Thiravianathan’s responding materials focus heavily on what he says is Mr. Ponnampalam’s true intent behind the litigation, namely intimidating and controlling both Mr. Thiravianathan and others, as well as interfering with their charity work. That position is directly tied to Mr. Thiravianathan’s pleaded defences. However, proving those defences requires production of relevant documents for the court to fairly adjudicate the dispute. I am not convinced that the court is able to do justice in this case without them.
[24] In Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, Brown J.A. commented on the impact of ongoing non-disclosure of documents. Those comments are, in my view, apt to this case. Brown J.A. stated, at para. 48, as follows:
[E]ach time a party defaults on its disclosure and production obligations and requires the opposite party to seek the court’s assistance to remedy the default, two things happen. First, the cost of the litigation increases. Motions are not cheap; they add significantly to the overall costs of a civil case. Second, the final determination of the case on its merits gets pushed back, delayed by the need to bring a defaulting party into compliance with its disclosure obligations.
[25] Mr. Thiravianathan has twice agreed to ordered production deadlines, apparently without understanding what was meant by them. He failed to take any steps to understand what he had to do to comply with them. He did not comply with them. He also made no effort to cure his ongoing breaches in the months while this motion remained pending. These are significant factors in my decision.
c. Failure to attend examination for discovery
[26] Subrule 34.15(1) of the Rules affords discretion to the court to strike out the defence of a party who fails to attend at the time and place fixed for an examination in a notice of examination, or to make such other order as is just.
[27] Subrule 31.03(1) of the Rules entitles a party to an action to examine for discovery any other party adverse in interest. As provided in subrule 31.04(2)(a), a party seeking to examine a defendant may serve a notice of examination after the defendant has delivered a statement of defence and, unless the parties agree otherwise, after the examining party has served an affidavit of documents.
[28] Mr. Ponnampalam was entitled to proceed with an examination for discovery of Mr. Thiravianathan. Mr. Thiravianathan has defended and the record supports that Mr. Ponnampalam has served his affidavit of documents. Although Mr. Thiravianathan has not yet served his own affidavit of documents, that is not a precondition to Mr. Ponnampalam conducting an examination for discovery.
[29] Mr. Ponnampalam served a notice of examination on February 22, 2022. The notice sought an examination of Mr. Thiravianathan nearly two months later on April 11, 2022. Mr. Ponnampalam’s evidence is that Mr. Thiravianathan was emailed about the examination and that, ultimately, he did not attend. Although there is no certificate of non-attendance in evidence, Mr. Thiravianathan does not appear to dispute that he knew about and failed to attend the examination date. In addition, there is evidence supporting requests by Mr. Ponnampalam for Mr. Thiravianathan’s availability to be examined. Nevertheless, Mr. Thiravianathan has not produced himself for examination.
[30] Mr. Thiravianathan’s explanation that he does not know now how to follow the Rules is even less convincing in the context of an examination for discovery. There is, in my view, nothing unclear about producing himself for examination. Mr. Ponnampalam’s notice of examination, which followed the prescribed form, clearly sets out the purpose of examination, where and when it was to proceed, and what documents were to be brought.
d. Failure to pay costs orders
[31] Subrule 57.03(2) of the Rules affords discretion to the court to strike out a party’s defence where that party fails to pay the costs fixed for a motion, or to make such other order as is just.
[32] Mr. Thiravianathan is in breach of two costs orders of La Horey A.J.: an order dated July 7, 2021 awarding costs of $350.00 and an order dated January 17, 2022 awarding costs of $3,000.00. Mr. Thiravianathan made some submissions to the effect that he did not have a proper opportunity to respond to costs, but neither order was appealed and Mr. Thiravianathan has not brought any motions to set it aside or vary them, including before me.
[33] Mr. Thiravianathan submits that he has paid $40 of the costs awards. There is no evidence of that. Even so, Mr. Thiravianathan does not dispute that the balance of the costs orders remain outstanding. He submits that I should consider that he lacks the financial capacity to pay the costs and asks that I not require payment until after trial.
[34] Impecuniosity is relevant in determining the consequences of a party’s failure to pay a costs order: Tarion Warranty Corporation v. 1486448 Ontario Inc., 2012 ONCA 288 at para. 6. However, there is no evidence before me supporting that Mr. Thiravianathan is impecunious.
[35] Extremely limited evidence of Mr. Thiravianathan’s financial situation has been tendered. One of his written statements confirms that he is employed full-time, although Mr. Thiravianathan says he pays for a mortgage and has three children, two of whom are in university. He pays for their tuition and accommodation. These are general statements that, on their own, are insufficient to meet the threshold of robust particularity needed to establish impecuniosity. I am not prepared to accept bald submissions by a litigant about his financial situation without any supporting or corroborating documentation or evidence.
[36] I am accordingly not satisfied that the evidence before me supports Mr. Thiravianathan’s assertion that he is unable to pay the costs. I thereby cannot accept that his breach of the costs orders is excusable or that it is appropriate to defer Mr. Thiravianathan’s payment of costs to trial.
e. Failure to comply with interlocutory orders
[37] Rule 60.12 of the Rules affords discretion to the court to strike out a party’s defence where that party fails to comply with an interlocutory order, or to make such other order as is just.
[38] I need not repeat my comments above about Mr. Thiravianathan’s non-compliance with court orders. They also apply to an order under rule 60.12. I add that Mr. Thiravianathan failed to comply with my own orders for serving materials on this motion, which I made on both June 15, 2022 (on consent) and August 11, 2022.
[39] In particular, at the first return of this motion, I made a consent order that all responding materials be served by July 28, 2022. One statement was served in compliance with that direction, but a second statement was sworn and uploaded to CaseLines days before the second return on August 11, 2022, in breach of my order and without the consent of Mr. Ponnampalam. Mr. Thiravianathan was then afforded a further opportunity to serve a proper responding motion record by September 14, 2022, with specific directions given on what must be included in it. Mr. Thiravianathan did not compile and serve a responding motion record as ordered. Although he did provide a sworn copy of his first written statement, it was not provided until over two weeks after the ordered deadline. No cogent explanation for failing to comply with my orders was provided.
Disposition
[40] Our civil litigation system relies on parties complying with their procedural obligations and court orders. Such compliance is required to ensure that the parties have a clear understanding of each party’s position in litigation, as well as access to documents, information, and other evidence needed to properly and fairly argue their case.
[41] Beyond the ability of parties to know the case to be met, the court itself must have a proper evidentiary record upon which to base its findings if a fair and just disposition of litigation is to be reached. That requires all parties in civil litigation, regardless of their views of the merits of a claim or defence, to follow the procedures set out in the Rules and to abide by directions of the court on conduct of the litigation. Proper administration of justice is not only about getting the parties to a trial. It is also about ensuring that procedural justice is achieved throughout the course of litigation. A just disposition hinges on a fair and just litigation process.
[42] It is clear to me that Mr. Thiravianathan wants his day in court so that he can argue why Mr. Ponnampalam’s claim is invalid and motivated by improper purposes. Mr. Thiravianathan’s conduct, though, has demonstrated an unwillingness to abide by the procedural obligations mandated by the Rules that are needed to get to a trial. When faced with motions to compel compliance, Mr. Thiravianathan has consented to deadlines, yet has failed to honour those commitments. He has been afforded several opportunities to cure his defaults, but has taken no steps to do so.
[43] In the absence of any clearly evinced intention to promptly comply with the prior court orders and necessary disclosure obligations, I am satisfied that giving Mr. Thiravianathan yet another chance to comply would be effectively meaningless. I accordingly order that Mr. Thiravianathan’s defence is hereby struck, with prejudice.
Costs
[44] Mr. Ponnampalam seeks costs of the motion in accordance with a costs outline he previously submitted. Because Mr. Ponnampalam intended to rely on offers to settle, I could not entertain costs submissions at the time of the hearing.
[45] I encourage the parties to settle costs of the motion. If they cannot agree, then written costs submissions shall be exchanged. Mr. Ponnampalam shall serve any costs submissions by March 15, 2023. Mr. Thiravianathan shall serve his responding costs submissions by March 31, 2023. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed four (4) pages, excluding any offers to settle and case law. Once served, they shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service.
[46] Because both parties are self-represented, I expect costs submission to address the restrictions on costs available to self-represented litigants as set out by the Court of Appeal in cases such as Girao v. Cunningham, 2021 ONCA 18 and previously in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228. In Girao v. Cunningham, the Court of Appeal confirmed that costs should only be awarded to self-represented parties who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and, as a result, incurred an opportunity cost by foregoing remunerative activity.
[47] Unless costs submissions are exchanged and filed in accordance with the above, the parties shall be deemed to have agreed on costs.