SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-293815
MOTION HEARD: March 26, 2012

RE: 05-CV-293815 Torres v. McPherson Lawn & Snow et al

BEFORE: Master Joan Haberman

COUNSEL:
Stewart, S. for the moving party
Daly, D. for the reposing party

REASONS

Master Haberman:

[ 1 ] The defendants move for leave to bring this motion, and leave is granted, as will be discussed below.

[ 2 ] The motion seeks an order striking the statement of claim and dismissing the action as a result of the plaintiff’s failure to comply with two previous court orders. It is supported by the affidavit of Roman Myndiuk, counsel, who explains in fewer than 6 pages what the nature of the problem is. His evidence is supplemented by that of Christine Arsenault, also counsel. Both provide solid, direct and clear evidence about the circumstances that led to this motion.

[ 3 ] Torres has filed no affidavit in response. Instead, he submits an affidavit from Margaret Tadus, a law clerk at the firm who is handling the matter for him. She goes on a great length (13 pages) about events that pre-date the breaches of the two orders which are the subject of this motion but she provides little in the way of helpful evidence to explain the breaches. In total, she includes 80 tabs of exhibits, most of which are letters passing between counsel, so not proof of their contents.

[ 4 ] Ms. Tadus filed a further affidavit with 25 more exhibits. For the most part, the exhibits represent a further exchange of correspondence between counsel, as district from direct actual evidence as to who said or did what.

[ 5 ] Ms. Tadus’ affidavit is also peppered with references to things that Mr. Daly either told her or asked her to do. She speaks of conversations “we” had with the defendants’ firm and to letters “we” sent them, as though she, too, was counsel. I do note that she did, in fact, author many of the letters.

[ 6 ] Mr. Daly tried to explain this by saying that “most” (not all) of his phone conversations with Ms. Arseneault took place on a speaker phone in his boardroom, with Ms. Tadus present. Ms. Tadus says nothing to this effect in her evidence.

[ 7 ] Mr. Daly’s comments in court do not constitute evidence that can be used to remedy the short-comings of the Tadus affidavit, nor can he provide his own evidence through Ms. Tadus, and then argue this motion. These problems were pointed out to Mr. Daly early on at the hearing, yet he chose to soldier on.

[ 8 ] I therefore ruled that, to the extent that any of Ms. Tadus’ evidence is contentious, it is struck, as Mr. Daly cannot appear before me as counsel when he is effectively the witness. The fact that he puts his evidence before the court through the mouth of his clerk in no way alters that principle. In the end, however, nothing turned on these deficiencies.

[ 9 ] Ms. Tadus also refers, not only to the fact that offers to settle were made, but goes further in her evidence and actually sets out the amount that Torres was willing to accept, which, in my view, is wholly inappropriate. I have disregarded that evidence.

[ 10 ] Of greater significance than any of the above is the total lack of explanation tendered by or on behalf of Torres as why why he missed three out of four of the dates scheduled for his continued examination for discovery. Although there is a brief note from a doctor regarding his absence from the 4 th scheduled attendance, in view of its content, it is of negligible weight.

[ 11 ] All of this above was pointed out to Mr. Daly at the outset. His response as to why there was no affidavit from Torres, himself, was that solicitor-client privilege prevented him from telling me and that he was prepared to proceed on the record as it stood.

[ 12 ] Those comments, coupled with Torres’ failure to attend his scheduled discovery on 4 separate occasions, lead me to conclude that he does not appear to appreciate the importance of his cooperating with this process that he initiated.

Why are we here?

[ 13 ] The action arises from a motor vehicle accident that took place on July 25, 2003, in which Torres claims he sustained injuries. He started this action exactly two years later, on July 25, 2005. It is therefore almost 9 years since the date of loss and almost 7 years since the action began.

[ 14 ] Notwithstanding the fact that the plaintiff did not serve copies of his schedule “A” documents on the defendants, oral discovery of Torres began on October 24, 2007. There was a further attendance on July 16, 2009, but it seems a trail of undertakings was left in its wake and compliance did not come easily.

First order - Master Brott, July 15, 2010

[ 15 ] As a result, a motion was brought to strike the statement of claim, returnable July 15, 2010. The basis for the motion was two-fold: 1) Torres has failed to place the matter on the trial list; and 2) he had failed to comply with his undertakings.

[ 16 ] Issue #1 seems to have taken on a life of its own in Ms. Tadus’ responding affidavit and it is not at all clear why, as that issue has now been resolved. It appears that the action was set down for trial on June 27, 2008, likely in response to the plaintiff having received a Status Notice in the action. This event followed an unsuccessful mediation held earlier that month. According to the Case History of the action, the copy of the record filed could then not be located.

[ 17 ] At the time of the first master’s motion, the issue was still outstanding, along with Torres’ undertakings. That motion was resolved on consent. The order submitted to Master Brott for her signature indicated that the parties consented to the following relief:

1. The plaintiff would attend his continued examination for discovery on of before August 31, 2010 , at a “time and place to be affixed (sic) by the Defendants”; and

2. He would take steps to have the matter immediately restored to the trial list;

3. He would take steps to request a pre-trial and to have it scheduled by December 3, 2010;

4. He would answer all of his outstanding undertakings within 45 days; and

5. He would pay costs of $450 within 30 days.

[ 18 ] The order was accompanied by a chart listing 19 undertakings, most of which involved seeking documents from non-parties.

[ 19 ] Torres failed to attend continued discovery dates scheduled first for August 26 and then for September 14, 2010. He filed no evidence on this motion to explain why this was the case. It is significant that the only evidence about these non-attendances are found in Ms. Arsenault’s affidavit. She refers to having received an e-mail from Ms. Tadus on August 25, 2010 advising that Torres was ill and a call on September 13, 2010 to advise that Mr. Daly was ill. There is no evidence at all from or on behalf of the plaintiffs to address these issues.

[ 20 ] Further, although he agreed to seek a pre-trial date by December 3, 2010, Torres only brought his motion to have the matter restored to the trial list on that date.

[ 21 ] The defendants brought a cross motion at the same time in view of the failure to comply with Master Brott’s order.

Second order- Master Abrams, December 3, 2010

[ 22 ] Both motions came before Master Abrams on December 3, 2010. These motions were not resolved on consent. The master heard from both counsel and ordered as follows:

1. She restored the action to the trial list;

2. She ordered Torres to attend a continued examination for discovery - not by a specified deadline, but ON February 1, 2011 . She added that if he failed to do so, the defendants could move to strike his claim;

3. Again , Torres was ordered to take immediate steps to schedule a pre-trial; and

4. Costs of $500 were ordered payable, and were paid at that time, by Torres.

[ 23 ] A notice of examination was served for February 1, 2011 in accordance with the order, yet Torres again failed to attend and a certificate of non-attendance was obtained.

[ 24 ] A copy of the certificate of non-attendance was provided to Mr. Daly by letter of February 7, 2011. Thereafter, defence counsel apparently had difficulty communicating with Mr. Daly’s office. No details about that assertion, however, were provided by either side.

[ 25 ] Counsel eventually spoke in July 2011 and discussed September dates for the continued discovery – a time frame already well past the specific date ordered by Master Abrams, so despite the court order, the defence was apparently prepared to grant Torres yet a further indulgence. Mr. Daly agreed that he could be available on September 13, 2011 and another notice of examination was served. Once again, however, Torres failed to attend.

[ 26 ] The materials for this motion which set out these breaches were served in November 2011, almost five months before this motion was finally argued. Despite that, Mr. Daly expressed surprise when I pointed out that it was now the four failures to attend for continued discovery that was the focus of the motion, a serious problem in view of the fact that he had filed little, if any, cogent evidence in proper form to address this.

[ 27 ] Mr. Daly also appeared to be surprised when I referred to four distinct appointments that were cancelled, yet he filed no evidence at all to dispute that number.

Torres’ evidence

[ 28 ] As already noted, Torres has not filed a responding affidavit and the evidence from Mr. Daly’s law clerk does not address three of the four scheduled appointments at all.

[ 29 ] Instead, Ms. Tadus spends the first 13 pages of her evidence discussing events that precede the two court orders in issue. Thereafter, her focus remains largely on arrangements made to obtain a pre-trial date and there is a brief reference to compliance with undertakings. These deficiencies are no longer in issue.

[ 30 ] What is shocking is that, after two court orders seeking deadlines for Torres to attend for completion of his discovery, Ms. Tadus continued to write to advise defence counsel that though she believed there was a high probability that the action would settle at the pre-trial, she wanted to know if they still wished to proceed with their continued examination. A copy of her letter of November 1, 2011, including the dollar amount offered by the defendants, is among the exhibits appended to her affidavit.

[ 31 ] Ms. Tadus says nothing in her evidence about the missed attendances of August 26 and September 14, 2010 or the deadline of August 31, 2010 for completion of this step set by Master Brott in her consent order.

[ 32 ] She also entirely fails to address Torres’ failure to attend discoveries on February 1, 2011, though he was expressly ordered to attend that day by Master Abrams in her court order.

[ 33 ] With respect to the September 13, 2011 missed attendance, Ms. Tadus states:

...it was explained to Ms. Arsenault that Mr. Torres had been ill as a result of his car accident with her insured and was unable to produce himself for discoveries in September 2011.

[ 34 ] Later in the same paragraph Ms. Tadus states:

.....when Mr. Torres became ill and unable to attend the proposed September 2011 continued Discovery date, I immediately telephoned Ms. Atkins and I informed her of the same. I told Ms. Atkins that Mr. Torres was ill and in too much pain and unable to produce himself for the discovery....

[ 35 ] The above statements are not evidence that Mr. Torres was ill or in pain or even evidence of the fact that this is what he told Ms. Tadus. They are simply evidence that this is what Ms. Tadus told Ms. Arsenault and Ms. Atkins. Ms. Tadus does not even say that or when she spoke with Torres or what he actually told her.

[ 36 ] No medical reports regarding the injuries that Torres allegedly sustained in the accident are appended to his materials, so I have no sense of what could be so troubling to him so many years after the event that rendered him unable to comply with a court ordered attendance, though he had been able to attend for discovery on two earlier occasions.

[ 37 ] It is important to bear in mind that the accident occurred in July 2003, while the mandated attendance was in February 2012. The September date was yet a further in a series of indulges granted to Torres by the court and/ or by defence counsel. It was therefore important for Torres to produce some medical evidence to explain the nature of the injuries he sustained in the accident and to address why the pain caused by an accident that had occurred eight years earlier that was at such a level as to impede his ability to participate in a court-ordered event.

[ 38 ] The only “medical” evidence produced is a note from Dr. Sokol, Torres’ family doctor, which Ms. Tadus refers to as a medical report, dated November 20, 2011. It is actually nothing more than a “sick note” and it is actually dated November 28, 2011.

[ 39 ] This is all Dr. Sokol wrote about Torres:

Today this patient was assessed regarding significant medical conditions . As well, he has been followed on a regular basis because of these issues. On September 13, 2011, he was having great exacerbations and he was not able to attend a Discovery.

[ 40 ] I am not prepared to give any weight to this note for the following reasons:

• Dr. Sokol never says what it was that troubled Torres on September 13;
• He does not explain or list the “significant medical conditions” he refers to?
• He does not set out of what these “great exacerbations” were or how they affected his “significant medical conditions”;
• Nor does he explain how any of this interfered with Torres’ ability to attend a discovery;
• It appears that Dr. Sokol did not even see Torres in or around September 13, 2011 so he can only speak to what Torres told him about how he was feeling that day. He did not see him until more than 2 months later
• Dr, Sokol’s note was only obtained and provided after Mr. Daly was alerted to this motion

[ 41 ] Accordingly, I find I have no evidence at all from or on behalf of Torres to explain his failure to attend the first three dates scheduled for his continued discovery. Further, the evidence I do have with respect to the 4 th attendance is of no value. There is therefore no explanation provided by Torres for having breached two court orders.

[ 42 ] Despite the foregoing, there is some information in Ms. Arsenault’s affidavit about the same failure to attend. She states that on September 12, 2011, she was contacted by Daly’s office and advised that Torres had dental issues. There is no evidence at all about this from Torres.

Defendants’ reply evidence

[ 43 ] Ms. Arsenault notes that, at the time she swore her supplementary affidavit (December 9, 2011), that she had yet to receive payment for the examiner’s cost of February 2, 2011, when Torres failed to attend. The costs have now been sought by way of this motion.

Where things stand

[ 44 ] The matter has now been restored to the trial list. A pre-trial is scheduled to take place on July 9, 2012, a two-week trial scheduled to commence on September 24, 2012.

[ 45 ] Though the defendants not only consented to having the action set down for trial but actually pursued that relief by motion, I am prepared to grant them leave to proceed with this motion as the same order also provided for a final cut-off date by which Torres was to have presented himself for the completion of his examination for discovery.

[ 46 ] The defendants were entitled to assume Torres would attend, in view of the court ordered date, not simply a deadline this time. It is clear that it was on the basis of that aspect of the order they were prepared to move on to trial. It was not appropriate, in my view, for Torres to resist the request for leave, when it was his own failure to comply with a court order that resulted in the action being set down prematurely. Further, it is difficult to understand why a plaintiff would have orchestrated a scenario that would make it premature to try this case, despite all the years that have passed.

Prejudice

[ 47 ] Torres’ evidence on this point is neither direct nor focused. Instead of asserting that the defence would suffer no prejudice, Ms. Tadus sets out the various letters she sent them, each of which lists what was attached. The letters provide long lists of medical reports and clinical notes and records, do not speak to the truth of their content, nor are any of the reports or income loss documents appended to the motion record.

[ 48 ] However, as the defence has not asserted actual prejudice in their evidence or disputed that any of these materials were received, I accept that Torres has served a myriad of materials over time that address both the injuries he sustained in the accident and his alleged loss of income claim, and that these documents extend into and through 2011. It appears that liability has been admitted for this accident, so that damages only are in issue. The documents addressing these issues appear to have been produced by Torres and no obvious gaps in these materials have been identified.

[ 49 ] While memories do fade over time, and though considerable time has passed since the events giving rise to this litigation, most of the tale is contained in these medical reports and clinical notes and records. It is also important to bear in mind that Torres has already been examined on two previous occasions so the foundation of his evidence has already been established.

[ 50 ] It therefore appears that all that remains outstanding is the continued discovery of Torres and compliance with the undertakings that may flow from it.

[ 51 ] On that basis, I find it difficult to accept the defence argument, contained in their factum but not bolstered by their evidence, to the effect that that it is now impossible for them to obtain a fair trial. To the extent that Torres’ recall of events is not clear, this will likely create difficulties for him, as well. While these are not ideal circumstances for a trial, the records that are available should facilitate the process.

The law, analysis and conclusion

[ 52 ] It is unclear why both parties approached this motion as though it was a motion to dismiss for delay. That is not how it was structured.

[ 53 ] The notice of motion seeks only the following relief:

• Leave t o bring the motion if necessary;

• An order to strike the statement of claim , as permitted by the order of Master Abrams, dated December 3, 2010;

• An order dismissing the plaintiff’s action for failure to comply with two court orders ;

• Costs of the motion; and

• An order for payment of costs of the official examiner

[ 54 ] There is no reference to delay in either the relief claimed or in the grounds for the motion. Thus, although the action has been outstanding for many years, delay was not a ground properly before me on this motion.

[ 55 ] Despite that, both counsel addressed it in their factums and in their oral submissions so I feel bound to comment. Had the motion been grounded in delay, the test would have been as follows: the court would have to find either that the delay was intentional or contumelious or that the plaintiff or his counsel caused an inexcusable delay of such an extent as to gives rise to a substantial risk that a fair trial would not be possible.

[ 56 ] In the context of the second part of the test, there would be a presumption of prejudice if there has been an inordinate delay after the cause of action arose or the limitation period has expired. In that case, the defendant would not be bound to lead evidence of actual prejudice and the action would be dismissed for delay unless the plaintiff rebutted the presumption.

[ 57 ] That presumption, however, could have been rebutted by evidence that all of the documentary evidence had been preserved and that the issues at trial would not depend on the memories of witnesses, or that all necessary witnesses would be available, with detailed recollections of the events intact.

[ 58 ] If the presumption of prejudice had been rebutted, the defendant could still succeed in having the action dismissed by leading evidence of actual prejudice. (see Woodheath Developments Ltd. v. Goldman 2003 46735 ; Armstrong v. McCall (2006), 2006 17248 (ON CA) , 213 OAC 229).

[ 59 ] On the basis of this analysis, I find that I am unable to dismiss the action. Though lengthy, I cannot say that the delay has been intentional or contumelious, in view of the ongoing work undertaken by plaintiff’s counsel. I have also been given no basis to conclude that there is a substantial risk that a fair trial would not be possible. An assertion in a factum absent more does not make it so.

[ 60 ] Further, although the presumption of prejudice would apply in view of the considerable length of time that has passed since the cause of action arose and since the expiry of the applicable limitation period, Ms. Tadus’ largely irrelevant chronology events does make it clear that the relevant documents were obtained and have been produced.

[ 61 ] Torres has therefore, in my view, rebutted presumed prejudice. Simply saying that a fair trial is not possible is not sufficient for the moving party in a motion based on delay where presumed prejudice has been rebutted. The moving party must then demonstrate, by evidence, why that is the case. As there is no evidence of actual prejudice, the motion would have had to have been dismissed on the basis of this analysis.

[ 62 ] I have only considered the evidence in the context of this analysis because this is what both parties appeared to do, notwithstanding the actual wording of the notice of motion. However, in view of the relief actually sought here, I do not believe it is the correct approach. The actual order sought here is to dismiss the action for failure to comply with two court orders, to the extent that they provided a court-ordered deadline and then a specific date on which Torres was to have presented himself for his continued examination for discovery. Torres has repeatedly failed to appear, yet has provided no explanation at all in three cases and a most unsatisfactory one as regards the fourth.

[ 63 ] I note that, instead of immediately jumping on the first breach of the second court order, defence counsel arranged for yet a further date, seven months later – but again, Torres failed to attend. The only explanation provided for this non-attendance is the note from Dr. Sokol, which is far from satisfactory.

[ 64 ] Save and except for the reattandance, both Master Brott’s and Master Abram’s orders have now been complied with, though in most cases, compliance was late in coming. As a result, there is one outstanding issue that remains with respect to both court orders: the continued discovery of Torres.

[ 65 ] There is no hard and fast test regarding breach of court orders as a ground for dismissing an action. Instead, a far more fluid approach appears to be taken than when the court is dealing with dismissal for delay. Some of the factors the court appears to consider are the number of orders breached; the nature of those orders; the impact of the breach(es) on the case and on the integrity of the administration of justice.

[ 66 ] I note that our law of civil procedure has evolved over the last few years. When dealing with most motions that could lead to the demise of an action for reasons other than the merits, the court tends to take a contextual approach, considering all potentially relevant factors rather than adhering to a test that is applied in a rigid manner.

[ 67 ] Thus, the above factors are but a few that have arisen in case law, but they are by no means exhaustive. One must examine all of the relevant facts in the particular case to arrive at a disposition that is fair to both parties.

[ 68 ] Several of the cases tendered by the parties deal with breaches of orders to pay costs. In Heu v. Estate of William Charles Frederick Forder 2004 16198 , for example, Master Dash stayed the plaintiff’s action pending payment of all three outstanding cost orders.

[ 69 ] Eberhard J. also dealt with non-payment of a cost order in Stacy/Schaer v. Barrie Yaght Club 2003 44518 . There, a $10,000 cost order made by her as the case management judge remained outstanding. Her Honour expressed concern that permitting this situation to continue would lead to the perception that the court had lost control of the party. As a result, she set a very strict deadline for compliance, failing which the moving party was permitted to move without notice for a dismissal of the action.

[ 70 ] Thus, in neither of the above actions where only costs were outstanding was a dismissal order made there and then. In each case, the defaulting party was given an opportunity to remedy their default. In Heu , the action was stayed pending payment. I am reluctant to take a similar approach here, in view of the fast approaching trial date – neither party wants to lose that if the action proceeds.

[ 71 ] The result was different in Bottan v. Vroom 2001 CarswellOnt. 2382 . There, Nordheimer J. struck out the plaintiffs’ statement of claim and dismissed their action for failure to post security for costs, as well as for non payment of costs orders totalling $38,000. Although this approach deprived the plaintiffs of having their action determined on its merits, the learned judge was of the view that the dismissal remedy is provided by the Rules for a reason and must be available to be used where appropriate. In his view, that was such a case.

[ 72 ] Similarly, Master Dash dismissed the action in Baksh v, Sun Media 2003 64288 , where the plaintiff had failed to post security for cost as ordered and to pay four cost orders.

[ 73 ] These two cases represent the general approach of the court when faced with motions to dismiss for failure to post security for costs as ordered. They are a distinct breed of case, as the court is required to consider the merits of the action and to make the order that is just in first instance. Thus, a breach of an order made in that context should give rise to the most serious repercussions as the balancing of interests has already been performed by the court.

[ 74 ] Those kinds of considerations would not have been taken into account before orders setting deadlines for completion of oral discoveries. I therefore do not believe that these cases assist here.

[ 75 ] In Schindler Elevator Co. v. 1147335 Ont. Inc, 2007 41280 , Master Albert dismissed an action for non-compliance with a series of orders, having made it clear in her endorsement that failure to comply could result in this very relief being granted.

[ 76 ] The orders breached in that case involved providing particulars, as well as documents. Two court orders were breached (November, 2006 and April 2007). By June 2007, the breaches had not yet been remedied. At that point, Master Albert made a “last chance” order. She stated:

This order provides a last and final chance to provide particulars failing which the counterclaims will be struck upon motion......

[ 77 ] As the efforts made towards compliance were found to have been inadequate, the counterclaim was struck.

[ 78 ] The final case provided by counsel is the decision of Ferrier J. in Vacca v. Banks 2005 CarswellOnt 146 . Though that action was case managed, the analysis is helpful.

[ 79 ] In that case, his Honour upheld the decision of the master, dismissing an action for breaches of court orders. In each case, the court order involved was a timetable for the action. Having breached three timetables, the master extended the dates a fourth time, providing new deadlines for compliance with undertakings and service of an affidavit of documents. On this occasion, however, she wrote:

The plaintiff shall answer all undertakings as listed in Schedule “A” attached. This is his last chance to do so.

[ 80 ] When the plaintiff again failed to comply, the action was dismissed for delay and for non-compliance with court orders.

[ 81 ] When reviewing the master’s decision, Ferrier J. held that, notwithstanding the reference to delay in her reasons, the master had not dismissed the action for delay. As a result of a clarification she had issued, it appeared to him instead that that order actually reflected a dismissal for breach of four court orders.

[ 82 ] He agreed with the result, stating as follows:

Repeated delays and failure to comply with procedural orders affect not only the parties to the action. They significantly increase the cost of the administration of justice due to the impact on administration and judicial resources. Repeated breaches of court orders must attract significant sanctions otherwise Case Management Rules will become ineffectual and the ultimate goal of the rules will not be attainable.

The rules must not be rendered nugatory by failure to impose appropriate sanctions in case of breach of orders.

[ 83 ] Ferrier J. went on to state that in the context of four breached orders, including a “last chance” order, the result was an appropriate one.

[ 84 ] Though the matter before me is not a case managed action, I find the reasoning compelling and applicable.

[ 85 ] Turning to case before this court, on the evidence before the court, Torres does not appear to have abandoned his action. Although there has been a considerable degree of pushing and shoving on the defendant’s part to get Torres to do most of what was required, for the most part, he has eventually complied with almost all aspects of the two court orders. In large part, this is due to efforts by his counsel to move forward, accumulating and providing medical and income-loss related documents.

[ 86 ] The big issue from Ms. Tadus’ perspective appears to have been having the matter relisted for trial – the lion’s share of her evidence was devoted to explaining at length what was required in order to straighten out that confusion, a problem that appears to have been largely the fault of court staff.

[ 87 ] Thus, though the issue of the repeated non- attendances has not been addressed in the evidence, it seems Torres’ counsel, at least, were focused on other aspects of the action and doing their best to move forward. It cannot be said that they simply put the file away and ignored it.

[ 88 ] For whatever reason, there appears to be some problem getting Torres, himself, on board. His failure to attend or to provide an affidavit is response to this motion, are telling examples of some reluctance on his part to cooperate. It is only this final ingredient – the reattendance – which requires Torres to be present that remains outstanding.

[ 89 ] The defence takes the position that Torres has already had a “last chance” order from Master Abrams. They assert that by granting them the right to move to strike his claim should Torres again fail to attend ought to have made that clear to him.

[ 90 ] I disagree. A party can always move to strike in the context of a breach of a court order. This is not something the master must provide for as the Rules already do so. This language, no doubt contained in a draft order provide to the court by defence counsel, adds nothing to what the defendant already had the right to do under the Rules. There was no endorsement accompanying the order making it clear that this was Torres’ last chance, by either stating that or by indicating that any further motions regarding this issue would be treated differently. There was nothing in the last order which signalled to Torres that he had, indeed, reached the end of the line and that no further indulgences would be granted.

[ 91 ] Both Master Albert and Ferrier J. relied on the fact that a real “last chance” order had been made in the cases before them. A “last chance” order, in my view, must make it clear to the party at the receiving end that he has reached the end of the road and that no further indulgences will be granted. It should, ideally, also spell out what will happen in the event that he fails to take advantage of his last chance to do what he was required to do – in this case, attend for his continued examination for discovery,. Though helpful, this is not a necessary component.

[ 92 ] In this case, only two court orders were allegedly breached and only one aspect of the two orders remains outstanding. There has been no “last chance” order. Accordingly, I find that it would not be appropriate to dismiss the action now, when so much of the ground work has already been completed and the pre-trial and trial dates are fast approaching, despite the time that has passed and the lack of explanation for these breaches.

[ 93 ] In my view, the preferred course is to fix a very tight timeline for completion of the Torres’ discovery and for compliance with any undertakings given at that time. An adjustment of the time for delivery of experts’ reports may also be needed. As Torres has created this problem, he will have to be extremely flexible in terms of any extensions in that regard that the defendant may now require.

[ 94 ] It is therefore ordered that:

1. The motion to dismiss the action and strike the statement of claim is dismissed;

2. The plaintiff shall pay the costs of the official examiner, as sought;

3. The plaintiff shall attend on a date and at a location selected by the defendant on at least 7 business day’s notice to be complete his examination for discovery, but no later than JUNE 8, 2012;

4. The plaintiff shall comply with all outstanding undertakings arising from those discoveries within 3 weeks of completion of that event. In the event that any of these undertakings involves getting documents from non parties, request letters shall be written within two business days of the discovery, contain proper authorizations and be copied to defence counsel at that time;

5. This is a “last chance” order. If Torres fails to attend the 5 th attempt to conduct his continued examination for discovery, this action will be dismissed barring exceptional and unforeseeable circumstances, which are fully and clearly supported by evidence in proper form. If that happens he will be ordered to pay the costs incurred by the defendant in defending the action to-date. Torres must understand that this action cannot go forward to trial simply on the basis of what his counsel is doing – he must cooperate;

6. This motion is therefore adjourned sine die and I shall remain seized of it. In the event that the plaintiff fails to attend as ordered, the defendant can be added to my regular motions list for a 5 minute motion on notice. They shall serve and file their supporting affidavit as required by the Rules, addressing the further non-compliance;

7. Torres shall cooperate in terms of agreeing to any reasonable extensions of time the defendant may now require regarding service of medical and other expert reports, as his approach to this action has led to the current situation. He cannot now rely on delays that he, himself, has created;

8. Notwithstanding the outcome of this motion, I believe the moving party should be entitled to their costs. Though the action has not yet been dismissed, I have made an order with very sharp teeth, with a view to ensuring that Torres understands what he must do, failing which his action will be dismissed. This motion would not have been necessary had he complied with earlier court orders. If the parties are unable to agree as to quantum, I can be spoken to within 30 days of the release of these Reasons.

Master Joan M. Haberman

Released: April 26, 2012