Court File and Parties
CITATION: Rock Precast Erectors Ltd. v. Canadian Precast Limited, et al., 2012 ONSC 5924
DIVISIONAL COURT FILE NO.: DC-11-38
DATE: 20121017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
ROCK PRECAST ERECTORS LTD.
A. Ruzza, for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
CANADIAN PRECAST LIMITED, PRECAST WALL INSTALLATIONS & ACCESSORIES INC., PRECAST WALLS INSTALLATIONS CONSULTING INC., and ROBERT MARCEL COUSINEAU
Defendants/Appellants Canadian Precast Limited
G. Dimitriou, for the Defendants/Appellants Canadian Precast Limited
HEARD: October 17, 2012 (Brampton)
BY THE COURT
ENDORSEMENT
The Appeal
[1] On April 21, 2011, Hourigan J. struck the Statement of Defence of Canadian Precast Limited for its failure to comply with an interlocutory order of the court. Canadian Precast has appealed that decision.
Standard of Review
[2] The standard of review for questions of law is correctness. Where, as here, the motion judge exercised his discretion his decision is generally entitled to deference. To be successful the Appellant must establish that in the exercise of his discretion he applied incorrect principles or misapprehended the evidence such that there is a palpable and overriding error.
Applicable Legal Principles
[3] Although Hourigan J. did not refer specifically to the Rule at play, the motion was brought and determined under Rule 60.12. It provides that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules, strike out the party’s defence.
[4] It goes without saying that the rules must be enforced if they are to be taken seriously. Rule 60.12 makes it clear that in certain fact situations a party’s position can be foreclosed for procedural recalcitrance.
[5] The determination of whether or not to strike a pleading involves the consideration of competing interests. On the one hand is the interest of having a case determined on its merits. On the other is the interest of having the case processed and heard in an orderly and fair manner. An order to strike pleadings is a severe penalty of last resort. It should be granted only when a party’s failure to comply with the rules prevents the orderly and fair hearing of the matter.
The Decision of the Motion Judge
[6] The reasons of the motion Judge are fairly brief:
The corporation defendant is not represented by counsel. This is despite the fact that it is clear in the endorsement of Murray J. dated January 17, 2011 that he represented to the court on January 17, 2011 that he had retained counsel. There is no application by Mr. Del Medico pursuant to R. 15.01(2) for leave to represent the company. It is apparent from the record that Mr. Del Medico knew or ought to have known that he was required to obtain a lawyer or leave. I am satisfied that an order should go striking the pleadings and that the matter may proceed on an undefended trial. The corporate defendant shall pay costs of $500.00 to the Plaintiff for costs of this motion.
[7] Although brief, the reasoning of the judge was clear. The action was on the cusp of being tried. The Defendant was in breach of an interlocutory order and was without representation. Mr. Del Medico had misled the court. The breach was either wilful or reckless.
Analysis
[8] The motion record filed by the Respondent contained hearsay evidence and other evidence that was not admissible. Although the motion judge did not specifically exclude this evidence or refer to it in his decision, it is clear that it played no role in his decision.
[9] The record before the motion judge established the following:
The action was a construction lien action issued on April 28, 2008. It had been set to the running list for trial in April of 2011. A pre-trial had been scheduled for December 15, 2010.
On December 9, 2010 counsel for Canadian Precast obtained an order removing him as solicitor of record. The order included a provision, pursuant to subrule 15.04(6), requiring the defendant to appoint a new lawyer of record or obtain and serve an order granting it leave to be represented by a person other than a lawyer, within 30 days.
On December 15, 2010 Mr. Del Medico (a principal of the defendant) attended the court house but left before the pre-trial was conducted. The matter was adjourned to January 17 and made peremptory on the defendant.
On January 17, 2011 Mr. Del Medico appeared and represented to the court that he had hired a lawyer who was ready to proceed to trial with the matter but who could not be in attendance that day due to family commitments. The defendant had filed no materials. Justice Murray took the defendant to task for not having complied with the order of December 9 and adjourned the pre-trial to be reconvened at the request of both parties. He also gave leave to the plaintiff to bring a motion to strike the defendant’s defence.
On March 9, 2011 Mr. Del Medico emailed counsel for the plaintiff and advised that the defendant was unable to retain counsel due to financial constraints. He indicated his intention to represent the company and said he would attend a pre-trial at a time convenient to counsel’s schedule. A pre-trial was arranged for March 29, 2011.
On March 29, 2011 the pre-trial was scheduled to begin at 11:00. The defendant filed no brief and was not present when the pre-trial began. Notwithstanding his specific representation to Justice Murray on January 17 that counsel had been hired, no solicitor had gone on record for the defendant and no steps had been taken to obtain leave to have the defendant represented by someone other than a lawyer. Justice Snowie’s endorsement indicates that Mr. Del Medico attended one hour and twenty- minutes late and the pre-trial was of no practical benefit.
On April 7, 2011 the plaintiff served its motion to strike the defendant’s defence, returnable April 21, 2011. This was during the period of time during which the matter was expected to be called for trial. On the return of the motion, Mr. Del Medico appeared once again. He filed no materials on the motion but indicated to the court that he wished to represent the corporate defendant. He admitted that he had not brought a motion for leave to do so and indicated that he was not aware that such a motion was required.
[10] On this record, the motion judge struck the defendant’s defence. The import of his order is that he considered the recalcitrance of the defendant sufficient to outweigh its entitlement to a trial. We do not see that he made any error of law, nor did he apply incorrect principals or make any palpable and overriding error of fact.
[11] The Appellant raised a host of issues on this appeal. Despite able argument by counsel, we have found none of them persuasive.
[12] The motion material contained a history of the litigation and the delay that had occurred, and referenced a costs order with which the defendant had not complied. Although not relevant to the issue of whether the defendant was in breach of the December 9 order, that evidence was quite relevant to the appropriate remedy to be granted the plaintiff. The material and argument of counsel also referenced the merits of the defendant’s defence. Although we agree that this evidence had no bearing on the issue of whether the defendant was in breach of the order, it was of relevance in the context of the appropriate remedy. It bears repeating that the defendant filed no materials at the motion to advance a factual matrix different than what had been put before the motion judge.
[13] In these circumstances, and particularly given the late stage of the action, it was not incumbent upon the motion judge to treat Mr. Del Medico’s indication that he wanted to represent the company as a motion for leave. There was no evidentiary basis to support the request and no materials for the plaintiff to answer or challenge. Although we would agree that self represented litigants often require and are entitled to explanation and direction from a presiding judge, it is reasonably clear from the record of these proceedings that if Mr. Del Medico did not know he required leave to represent the corporation, he ought to have known – particularly in light of the very clear wording of the order of December 9, 2010. Indeed, the motion judge made this same determination.
[14] Parties who represent themselves are not free to disregard orders of the court and the rules of civil procedure. At times, and when circumstances permit, they will be extended courtesies and provided direction on how to keep their case on track. However, when a litigant’s actions are in default of a court order which is clear on its face, it may expect there to be less tolerance and fewer courtesies extended. When a litigant is before a judge and makes material misrepresentations, its position becomes more tenuous. When a matter is on the cusp of trial and a litigant attends pre-trials late and without filing materials, and attends a motion without making any effort to obtain and provide evidence to the court, it may find the court to be less than sympathetic. When a litigant has done all of these things in the face of a looming trial which has been long delayed, it should not be surprised when the court strikes its pleadings.
[15] The appeal is dismissed. Costs are awarded to the Respondent in the amount of $5,000 all inclusive.
Taliano J.
McCartney J.
Gordon J.
Released: October 17, 2012
CITATION: Rock Precast Erectors Ltd. v. Canadian Precast Limited, et al., 2012 ONSC 5924
DIVISIONAL COURT FILE NO.: DC-11-38
DATE: 20121017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
ROCK PRECAST ERECTORS LTD.
Plaintiff/Respondent
- and –
CANADIAN PRECAST LIMITED, PRECAST WALL INSTALLATIONS & ACCESSORIES INC., PRECAST WALLS INSTALLATIONS CONSULTING INC., and ROBERT MARCEL COUSINEAU
Defendants/Appellants Canadian Precast Limited
ENDORSEMENT
By the Court
Released: October 17, 2012