Court File and Parties

COURT FILE NO.: CV 20-83329 DATE: 2023/03/22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: 1649050 ONTARIO LTD. Plaintiff – and – PETER HARGADON and STEWART TITLE GUARANTY COMPANY Defendants

Counsel: Robert D. Malen for the defendant Peter Hargadon Michael Van Dusen for the defendant Stewart Title Guaranty Company

HEARD: March 7, 2023

RULING

ANNE London-Weinstein J.

[1] The defendants seek an order dismissing the plaintiff’s action with prejudice. They also seek costs incurred as a result of two motions for dismissal necessitated by the plaintiff’s conduct.

[2] The plaintiff failed to attend examination for discoveries, failed to file an affidavit of documents and failed to attend court on two separate motion dates, in August 2022 and March 2023. The plaintiff stopped communicating with his counsel. Counsel asked to be removed from the record at the motion for dismissal in August of 2022.

[3] The plaintiff did not respond to the court’s order issued on September 13, 2022. That order was served on the plaintiff on November 4, 2022. That order required the plaintiff to file notice of an intention to act in person, pursuant to rule 15.03(3) of the Rules of the Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), or a notice of change of lawyer pursuant to rule 15.03(1) within 60 days. After 60 days the order permitted the defendants to renew their motion for dismissal. Neither the court nor the defendants have received any response to that order from the plaintiff. The defendants seek dismissal of the plaintiff’s action pursuant to rule 34.15 of the Rules for failing to attend examination for discovery. The defendants point out the failure of the plaintiff to respond to my order, or to move the litigation along at all over a period of two years, as evidence that the plaintiff has by conduct, demonstrated an intention to abandon the action.

[4] Mr. Malen in his factum, describes the plaintiff’s conduct as contumelious.

[5] The Oxford dictionary defines contumelious as behaviour which is: “scornful and insulting, insolent.” I concluded that in failing to attend for discovery and in failing to respond to my order, the plaintiff demonstrated a distinct lack of interest in pursuing the litigation. I granted the order requested and awarded costs in favour of the defendants.

Background

[6] The plaintiff is a corporation licensed to conduct business in Ontario. It is the legal owner of the municipal property known as 374/378 Dalhousie Street, Ottawa, Ontario. The defendant, Peter Hargadon is a retired lawyer who represented the plaintiff when purchasing the property. The defendant, Stewart Title Guaranty Company is a Title Insurance Company operating and issuing policies for properties in the province of Ontario.

[7] The plaintiff purchased a property on Dalhousie Street on July 10, 2008. The plaintiff believed a right-of-way existed at the rear of the building. This belief proved to be incorrect. The plaintiff brought a claim against the defendants.

[8] However, the plaintiff did not actively pursue the litigation. The plaintiff did not attend examination for discovery, failed to file an affidavit of documents, and stopped communicating with his counsel.

[9] As a result of this failure to participate in the litigation, the defendants brought a motion asking that the action be dismissed on August 25, 2022. Mr. Langevin was counsel for the plaintiff at that time. He asked to be removed as counsel of record as he had fallen out of contact with his client.

[10] Given the drastic consequences to the plaintiff of granting the defendant’s request to dismiss the action, I instead ordered that the plaintiff had 60 days from the date of the order to appoint a new lawyer of record by serving notice or serving a notice of intention to act in person. The order indicated that a failure to respond would permit the defendants to renew the motion for dismissal.

[11] Mr. Langevin was ordered to serve a draft order for my signature, removing himself and his firm as counsel of record. Mr. Langevin was ordered to serve the signed order on the plaintiff and provide proof of service.

[12] Mr. Langevin failed to comply with my order in a timely manner. Accordingly, Mr. Van Dusen drafted the order for my signature with an explanation as to why he was doing it and not Mr. Langevin.

[13] Given Mr. Langevin’s failure to draft the order, Mr. Malen assumed responsibility for serving the order on the plaintiff. The order was served on the plaintiff at the address provided for in my endorsement. The covering letter by Mr. Malen is dated November 22, 2022, and was filed with the March 7th motion material seeking dismissal of the action.

[14] I have no concern that the plaintiff is unaware of what has transpired to date. Mr. Van Dusen also served a copy of the order on the plaintiff by registered and regular mail on November 17, 2022. A copy of Mr. Malen’s letter was sent to Mr. Langevin and Mr. Van Dusen.

[15] Neither Mr. Malen, nor Mr. Van Dusen was contacted by the plaintiff or any other lawyer for the plaintiff. The plaintiff did not appear for the examination for discovery which took place on February 15, 2022. Mr. Malen and Mr. Van Dusen both appeared. An affidavit of documents has never been filed by the plaintiff. The plaintiff failed to appear at the motion for dismissal in August 2022 and did not file material. His counsel at the time was unable to communicate with his client and asked to be removed from the record. The plaintiff did not appear on the March 7th motion for dismissal.

[16] The Statement of Claim was issued on April 9, 2020. The plaintiff amended the Statement of Claim on or about July 29, 2020.

[17] A review of the record demonstrates that the plaintiff in this action has done nothing to forward the litigation in over two years.

[18] Where a party fails to comply with a timetable, a judge or associate judge may, on any other party’s motion, stay the proceedings, dismiss the party’s proceedings or make such other order as is just. Rule 3.04(4)(b) & (c) of the Rules. Further, where a person fails to attend at the time and place fixed for an examination on the notice of examination or at a time and place agreed to by the parties, the court may dismiss the party’s proceedings as per rule 34.15(1)(b) of the Rules.

[19] In my endorsement of September 13, 2022, I noted a strong available inference from the plaintiff’s conduct that interest had been lost in the litigation. However, at the time I was reluctant to dismiss the action, as it is a remedy of final resort with severe consequences to the plaintiff.

[20] At the time, I was concerned with maintaining procedural fairness to the plaintiff, who had fallen out of contact with counsel. I therefore ordered that the plaintiff had 60 days to appoint a new lawyer of record by serving a notice under sub rule 15.03(2) of the Rules or serving a notice of intention to act in person, failing which I would again hear the motion to strike the claim and dismiss the action.

[21] The plaintiff’s failure to attend the examination for discovery permits the court to dismiss the party’s proceedings, or make such other order as is just. Rule 34.15(1)(b)(d).

[22] The defendants have made repeated efforts to move the action forward in the absence of any response from the plaintiff.

[23] In the absence of any explanation for the failure to attend examination or comply with any obligations under the Rules pertaining to discovery, I am satisfied that the plaintiff has by conduct, abandoned this action. I exercise my discretion under r. 34.15(1)(b) to dismiss the plaintiff’s action. The plaintiff’s action is therefore dismissed.

[24] The issues of costs will be dealt with separately. Rule 57.01(5) requires a Bill of Costs for the motion and the action. Form 57(A) requires dockets to be attached. Counsel must specify if the costs in the Bill of Costs and costs outline for the motions are included in the costs of the action, and if so, the Bill of Costs for the action should be reduced.

Anne London-Weinstein J.

Released: March 22, 2023