DATE: 2001092 DOCKET: C35803
COURT OF APPEAL FOR ONTARIO
RE:
HENRY D. MORGAN (Plaintiff/Appellant) v. HER MAJESTY IN RIGHT OF ONTARIO (Defendant/Respondent)
BEFORE:
OSBORNE A.C.J.O., FINLAYSON and WEILER JJ.A.
COUNSEL:
Henry D. Morgan
appearing in person
Bradley Phillips
for the respondent
HEARD:
August 30, 2001
RELEASED ORALLY:
August 30, 2001
On appeal from the order of Justice John G. Kerr dated January 9, 2001.
E N D O R S E M E N T
[1] In April 1996, the appellant, a lawyer now retired, was incarcerated for six months for contempt of court. He alleges that shortly after his incarceration he was assaulted by other inmates. In September 1996, the appellant sued the respondent. His statement of claim was served in December 1996, and the respondent’s statement of defence was delivered in August 1997.
[2] On January 5, 1999, on the respondent’s motion to dismiss the appellant’s action for delay, Kennedy J. ordered that the appellant:
(a) provide a sworn Affidavit of Documents within 30 days;
(b) attend at an Examination for Discovery within 60 days;
(c) set the action down for trial within 90 days; and
(d) pay costs to the respondent in the amount of $250.00 forthwith;
[3] This order also provided that if the plaintiff failed to comply with any of the provisions of the order, the respondent may move in Toronto, without further notice, to have this action dismissed for delay.
[4] The appellant did not learn about Kennedy J.’s order until January 15, 1999. This was apparently the result of an error on the part of the appellant’s solicitor. He did not appeal Kennedy J.’s order.
[5] The appellant then moved to vary, set aside or stay the order of Kennedy J. He also sought to add nine defendants and to amend his statement of claim. On May 23, 2000, Patterson J. made the following order:
(a) the motion to amend the pleadings was dismissed;
(b) the motion to set aside or vary Kennedy J.’s order was refused;
(c) only two of the nine defendants that the appellant sought to add as defendants were added to the action. They were Heykel A. Kader and Donald Edward Ball, inmates who did not appear at the motion; and
(d) the appellant was ordered to pay costs to Justice Bruce G. Thomas ($2,500), to the Federal Crown ($3,000) and to the Provincial Crown ($2,500) within 120 days of the order;
[6] On January 9, 2001, on the respondent’s motion to dismiss the appellant’s action based on the appellant’s failure to comply with Kennedy J.’s order, Kerr J. dismissed the action, in general because the appellant did not comply with some of the provisions of Kennedy J.’s January 1999 order.
[7] The appellant takes the position that by permitting him to add two of the nine defendants he sought to have added to the order of Patterson J. reopened the pleadings in the appellant’s action. That may be so. It does not, however, explain the appellant’s egregious failure to comply with Kennedy J.’s order. In our view, the appellant did not provide a satisfactory explanation for his failure to comply with that order.
[8] A motion to dismiss a plaintiff’s action may be granted where the court is satisfied that the default is (a) intentional and contumelious or (b) where inexcusable delay by the plaintiff gives rise to a substantial risk that a fair trial of the issues in the action will not be possible. In our opinion, the appellant’s failure to comply with Kennedy J.’s order was intentional and not satisfactorily explained. The delay gives rise to a substantial risk that the fair trial of the issues will not be possible. Accordingly, we think that it was open to Kerr J. to exercise his discretion as he did. The appeal is therefore dismissed with costs.
“C.A. Osborne A.C.J.O.”
“G.D. Finlayson J.A.”
“K.M. Weiler J.A.”