COURT OF APPEAL FOR ONTARIO

CITATION: Garrett v. Oldfield, 2016 ONCA 424

DATE: 20160601

DOCKET: C61661

Juriansz, Brown and Roberts JJ.A.

Allison Garrett Appellant (Plaintiff)

and

Oldfield, Greaves, D'Agostino, G. Edward Oldfield, Terrance J. Billo, Catherine P. Watson (Catherine P. Watson Professional Corporation), Steiber Berlach LLP, Elizabeth Bowker, Iain Peck, Guarantee Company of North America, Temple Insurance, Southeast Grey Support Services, Irwin Dowker, Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services and Bud Carter Respondents (Defendants)

Allison Garrett, in person

Filipe A. Mendes, for the respondents, Oldfield, Greaves, D'Agostino, G. Edward Oldfield, and Terrance J. Billo

Heard: May 26, 2016

On appeal from the judgment of Justice Dale Parayeski of the Ontario Superior Court of Justice dated August 14, 2014.

Endorsement

[1] The appellant appeals from the dismissal of her action against the respondents, her former lawyers. The appellant failed to pay the $10,400.00 in costs awarded to the respondents within 30 days of March 7, 2014, following the dismissal of her summary judgment motion against the respondents on January 23, 2014. The appellant did not appeal these orders. The appellant’s action was dismissed on August 14, 2014, pursuant to rule 57.03(2) of the Rules of Civil Procedure, for her failure to pay the costs awarded to the respondents.

[2] Rule 57.03(2) provides the court with the discretion to dismiss a plaintiff’s action for failure to pay a costs order. In determining whether an action should be dismissed, a court must balance the competing interests of the parties and consider all relevant factors: see Tarion Warranty Corp. v. 1486448 Ontario Inc., 2012 ONCA 288.

[3] Despite remarks that he made during argument, the motion judge’s reasons demonstrate that he considered the appellant’s submissions concerning the merits of her action and her allegations of impecuniosity, and balanced them against the competing interests of the respondents and the administration of justice.

[4] As the motion judge fairly noted concerning the merits of her action, the appellant’s motion for summary judgment was dismissed. The appellant filed no affidavit evidence with respect to the merits of her action in support of her summary judgment motion or before the motion judge on the respondents’ motion to dismiss her action, thereby preventing the court from assessing the merits of her claim. The respondents’ affidavit evidence refuting the appellant’s allegations of professional negligence and other improprieties was unchallenged.

[5] Moreover, the motion judge correctly observed that the appellant had not raised the issue of her alleged impecuniosity to pay costs before the motion judge who had ordered them nor had she provided any evidence supporting her allegation of impecuniosity.

[6] The motion judge properly weighed the appellant’s interests in pursuing her claim against the interests of the respondents in receiving compensation for their costs that the appellant caused to be incurred by her unsuccessful summary judgment motion, and of the administration of justice in ensuring that court orders are followed. The motion judge’s decision was within the bounds of his discretion and we cannot interfere.

[7] The appellant also argues that the motion judge erred in failing to consider the potential bias of the motion judge who dismissed her summary judgment motion and ordered that she pay costs to the respondents. These submissions are without merit. The appellant did not appeal from the motion judge’s orders. The appellant did not raise the issue of bias before the motion judge who dismissed her action nor does the record support this allegation.

[8] Accordingly, the appeal is dismissed.

[9] The appellant shall pay within 30 days the respondent’s partial indemnity costs in the all-inclusive amount of $5,000.00.

“R.G. Juriansz J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”