Court of Appeal for Ontario

Date: 2019-07-12 Docket: C66147

Judges: Huscroft, Trotter and Zarnett JJ.A.

Between

Robert Stockey Plaintiff (Respondent)

and

Gary Grant and Diana Kopp Grant Defendants (Appellant)

Counsel

Ryder L. Gilliland, for the appellant

Ian K. Latimer, for the respondent

Heard: June 28, 2019

On appeal from the order of Justice Bonnie Wein of the Superior Court of Justice, dated October 15, 2018.

Reasons for Decision

[1] The appellant appeals from an order dismissing two related proceedings and striking out his statement of defence in a third related proceeding arising out of an aborted real estate transaction in 2004.

[2] The appellant's factum accurately describes this case as having a "tortured history". For the purpose of this decision, it is not necessary to delve deeply into the details. In short, the appellant commenced two actions against the respondent (CV-06-2644-00 and 615/08), as well as a lien application (85/11). The respondent commenced an action against the appellant (390/08).

[3] There have been many motions, largely initiated by the appellant. He has accumulated many costs orders. He has a poor history of paying costs orders in a timely manner.

[4] On March 7, 2018, the respondent brought a motion to have the appellant's statement of defence in 390/08 struck out, and to dismiss the appellant's action in CV-06-2644-00. Neither action 615/08 nor the lien application (85/11) were part of this proceeding. On June 11, 2018, Barnes J. granted the relief sought, to take effect if the appellant did not pay the identified outstanding costs orders within 60 days. In his order, Barnes J. specified CV-06-2644-00 as the action subject to dismissal.

[5] On June 21, 2018, the parties attended a trial management conference before Wein J. in relation to 390/08. In her Endorsement, Wein J. "declared" that the deadline for satisfying the order of Barnes J. was August 13, 2018. She further said that there would be another trial management conference after August 13, 2018 "if the matters are proceeding".

[6] The appellant did not meet the 60-day deadline set by Barnes J. However, one week later, he attempted to make payment of the principal amount owing (but not interest) in the amount of $19,499.03. While the appellant's bank draft was received by the respondent's counsel, it has never been cashed.

[7] The parties appeared before Wein J. again on October 15, 2018 in relation to 390/08. The appellant requested that the June 11, 2018 order of Barnes J. be set aside. The request was denied, in part for the following reasons:

At some point the Court must insist that its orders be complied with, and Mr. Grant has had many opportunities to pursue his case. While a trial on the merits is always to be preferred, I am convinced that further opportunities to Mr. Grant would not result in anything other than another delay.

[8] At the end of her reasons, Wein J. clarified that her order "covers both actions 390/08 and 615/08". The formal order of Wein J. was styled in action 390/08. It provided, in para. 1, that "the order made on June 11, 2018 stands and the matter is formally dismissed as of August 13, 2018" and in para. 3 that "this order covers both actions 390/08 and 615/08."

[9] The appellant submits that action 615/08 was not the subject of the order made by Barnes J. on June 11, 2018 and for that reason should not have been dismissed. He also argues that it was unfair to dismiss the proceedings, for the following reasons: (1) when his actions were dismissed, he had substantially complied with the Barnes J. costs order, albeit one week late; (2) the parties were on the eve of trial (scheduled to commence on November 28, 2018); (3) he has been unwavering in his desire for a trial on the merits; (4) he was self-represented; and (5) he offered some evidence for his tardiness (i.e., medical issues).

[10] The respondent submits that Wein J. did not err in refusing to grant relief from the order of Barnes J. The respondent submits that, over the years, the appellant has brought many motions, and has been the source of much of the delay. In the respondent's submission, restoring the appellant's actions (and permitting him to defend against the respondent's action) will result in further delay. Moreover, the respondent argues that Wein J. did not err in dismissing 615/08 because the appellant had failed to satisfy a costs order made in that proceeding.

[11] Subject to the condition discussed in para. 14 below, the appeal must be allowed. The dismissal of the 615/08 action was done without advance notice to the appellant. That action was not part of the proceedings before Barnes J., and it was not part of his order.

[12] Granting relief in relation to the other matters is somewhat more difficult to justify. The appellant is the author of his own misfortune. He missed a significant deadline. However, and as discussed below, he has now tendered payment for all costs orders made against him and he is motivated to have this case determined on its merits.

[13] We agree with Wein J. that "a trial on the merits is always preferred". In all of the circumstances, it makes little sense to restore 615/08 alone. The three proceedings relate to the same subject matter. Allowing 615/08 to proceed alongside 390/08 with the appellant's statement of defence struck out may compromise the presiding judge's ability to adjudicate this dispute on the merits.

[14] As noted above, the appellant had tendered a bank draft in the amount of $19,499.03 in an attempt to satisfy the order of Barnes J. We were informed that, prior to the hearing of the appeal, he also tendered a cheque for $10,734.15 in satisfaction of interest on the amounts specified in the Barnes J. order, as well as other costs orders. Neither tender has been accepted. Those costs must be paid by the appellant. We direct that the appellant pay into the Superior Court of Justice to the credit of action 390/08 the total sum of $30,233.18 within 30 days of the date of these reasons. If that condition is satisfied, the appeal is allowed, the order of Wein J. is set aside in its entirety, the appellant's actions (CV-06-2644-00 and 615/08) are restored, and the order striking his statement of defence in 390/08 is set aside. As well, if the condition is satisfied, the respondent shall be entitled to payment out of court of such costs. If the condition is not satisfied, the appeal is dismissed.

[15] Although the appellant was successful on this appeal, we make no costs order of the appeal. The appellant's own conduct gave rise to the orders of Barnes J. and Wein J., and the need for this appeal.

[16] Finally, given the history of this case, and in fairness to the respondent, it would be preferable that the case be given priority in terms of trial scheduling, subject to the fulfilment of the condition above. However, we are mindful of the fact that this will depend upon the priorities and available resources in the Region from which this case originates.

Grant Huscroft J.A.

Gary Trotter J.A.

B. Zarnett J.A.