Court File and Parties

COURT FILE NO.: 03-CV-256165CM3

DATE: 2006-10-18

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Richard Breslin, Plaintiff, Appellant -and- Esther Breslin, Defendant, Respondent

HEARD: October 17, 2006

BEFORE: Lane, J.

COUNSEL: Barry M. Weintraub and Matt Diskin, for the Appellant; Leo Klug, for the Respondent.

ENDORSEMENT

LANE, J.:

[1] The plaintiff appeals from the dismissal of his defamation action by Master Polika on October 4, 2005 based on the entire conduct of the action and non-compliance with an order of July 19, 2005, requiring that he execute a consent to the disclosure of any and all medical records which may be requested by the defendant.

[2] The motion was originally returned on April 7, 2005, seeking medical records, security for costs and other relief. The Master adjourned the other matters to July 19, but ordered that the plaintiff produce medical records from 2001 to the present, a medical letter from the physician currently advising the plaintiff (Dr. Maltseva), and a decoded OHIP summary by June 30, 2005. This order was made based upon the pleading by the plaintiff, that the defamation of him by the defendant was calculated to cause him mental distress, thus putting his health in issue. The Master also ordered the plaintiff to pay costs of $600 and the plaintiff did so.

[3] On June 29, the plaintiff complied in part with the order, sending counsel for the defendant the decoded OHIP summary of his medical history and the letter from Dr. Maltseva. In the letter he indicated that he had sought his medical file from Corrections Canada, as they had failed to include it in earlier correspondence. On July 4, 2005, he wrote to counsel advising that he had the clinical notes and records of Dr. Maltseva and asking for the cost to be reimbursed after which he would drop the records off at counsel’s office. These notes included consultation letters and some material dated in 2003 as well as 2005 records. Also on July 4, the plaintiff advised counsel that he had received the Corrections Canada material and would make it available on payment of the cost of photocopying. This material appears to cover portions of 2001, 2002 and 2003.

[4] On the return of the motion on July 19, the plaintiff, who was still unrepresented, sought a further adjournment to September. He had been referred by Dr. Maltseva to a psychiatrist who had diagnosed the plaintiff as suffering from depression and anxiety. He tendered a letter from Dr. Maltseva stating that his condition was stable but he should avoid additional stress for a period. Based on looking at the plaintiff, the Master concluded that he was no different than he had been on previous appearances, expressed reluctance but nevertheless granted a further adjournment. He established a number of terms applicable to the security for costs motion, which was made peremptory. As to the medical records still outstanding, he ordered that, if the defendant wished additional clinical notes and records, he should forward to the plaintiff a direction to the relevant doctors and the plaintiff would forthwith execute and return the same. He observed that the plaintiff had agreed to this procedure.

[5] On August 18, counsel for the defendant sent authorization forms and subsequently a reminder letter on August 24. The plaintiff did not reply. In his affidavit, the plaintiff said that he had not “to date” executed the forms because, as drafted by counsel for the defendant, they were unlimited as to time and would provide an opportunity for a fishing expedition as to medical matters remote from the mental distress which was the reason for the action.

[6] On September 22, 2005, the defendant moved to dismiss the action for breach of the order of July 19, in that the plaintiff had failed to respond to the request to execute the authorization. No other ground was relied on.

[7] On September 29, the plaintiff retained counsel, who needed time to become familiar with the case. On October 3, 2005, the plaintiff served an affidavit stating that counsel had advised they would require thirty days to prepare and to advise him on compliance with the order. An adjournment was requested at the hearing on October 4, but the Master refused it. He based his decision on a finding that the plaintiff wished to “draw these actions out” and had “no intention of complying with orders of the court” and that, considering these factors “and the conduct of the action to date by the plaintiff”, the order had been breached and “in all the circumstances given the conduct of the action to date”, an order would go dismissing it.

[8] The plaintiff appeals from the dismissal on several grounds. The nature of the non-compliance did not justify dismissal; the Master erred in considering “the conduct of the action to date” when this was not a ground relied on by the defendant; and there was no basis for the finding that the plaintiff had no intention of complying with court orders. The defendant defends the dismissal as not clearly wrong and as justified by the history of the action and the indulgences granted to the plaintiff previously, combined with his failure to execute the authorizations.

[9] Deference is certainly owed to the Masters, particularly in case-managed actions where they may be expected to be familiar with the case and, as the front-line troops, must have the ability to control the process of discovery without being second-guessed by judges. Nevertheless, in exercising their duties, the Masters must have regard to well-settled principles of law and practice. One of these is that interlocutory dismissal of an action is a remedy of last resort, to be invoked when the litigant has shown a cavalier disregard of his obligations: see Madonia v Mulder[^1]; King v. Belair Direct[^2]. On the facts before me, this is the only occasion when the plaintiff has failed to comply with his obligations. It was admitted in argument that all costs orders against the plaintiff had been paid.

[10] It is clear that the Master did not like the number of adjournments requested by the plaintiff and was suspicious of his claims to be ill, but the only basis relied on by the defendant for the motion to dismiss was the one failure to comply with the order to sign whatever authorization document the solicitor for the defendant decided to send. Now, with great respect, that order should never have been made, the Master should not have given the defendant such power. I acknowledge that the order was not appealed, in fact the plaintiff apparently agreed, but he was unrepresented. The plaintiff complied with much of the disclosure, but in my opinion he was on solid ground in questioning the form sent to him for execution: it was unlimited as to time and subject matter, ranging far beyond the mental and emotional issues raised in the lawsuit and one form identified the defendant’s solicitor as the plaintiff’s solicitor. The Master brushed all this aside: he had no problem with it. The defendant submitted that the form was correct, the pleading put the whole of the plaintiff’s health in issue. That may be right, but it is not obviously so and it is not contumelious for the plaintiff to raise the issue. It is unfortunate that the plaintiff, who never actually refused to sign, did not set out his position; he just did not sign and raised the issue on the motion. That was not a wise way to deal with it, he should have communicated his position earlier, but again it is not contumelious conduct.

[11] I have mentioned that the only basis specified by the defendant as the ground for her motion was the failure to execute the authorizations. The defendant submitted that the Master was entitled to base his decision on the whole conduct of the case, as he did, because that was the beauty of the case management system: the Master was aware of all the history. Certainly one of the benefits of case management is indeed that the manager is aware of the background and so makes more informed decisions with less need to be educated as to the prior proceedings. But there is a reason for the requirement in the motion form to state the grounds for the motion. It is fairness to the responding party who ought not, without notice, to be placed in the position of defending his entire conduct throughout the case rather than simply defending the motion brought on the grounds set out. Rule 37.06 is mandatory: the grounds to be relied on shall be set out. This requirement reflects “an overarching policy of the Rules”[^3], namely that a party’s position is to be disclosed to prevent unfair advantage. That policy is important and all the more so when new counsel has just been engaged.

[12] In my view, the Master failed to exercise his discretion upon the proper principles of law; the result is to deprive the plaintiff of his day in court without justification and his decision must be set aside. The order dismissing the action, including the costs order, is set aside with costs of the appeal to the appellant payable forthwith. If agreement is not reached, written submissions as to quantum may be made within thirty days.

Lane J.

DATE: October 18, 2006

[^1]: [2001] O.J. No.1326 (S.C. Master) aff’d [2002] O.J. No. 487 (Div. Ct.) [^2]: (2004) 2004 19530 (ON SCDC), 184 O.A.C. 189 (Div. Ct.) [^3]: Per Sharpe J. in Transamerica Life Insurance Co. of Canada v.Hutton [1996] O.J. No. 1787, (O.C.G.D.)