SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-368670
MOTION HEARD: May 1, 2012

RE: Nicola Federico and Lynda Federico

v.

Andrew McGovern, Andrew Hoerner
and Hoerner Heating & Plumbing Service Inc.

BEFORE: Master Thomas Hawkins

COUNSEL:
Helen Burnett, student-at-law,
for moving defendants
Fax No.: 416-868-0673

Michael A. Katzman
for responding plaintiff
Fax No.: 416-628-2224

REASONS FOR DECISION

[ 1 ] This is a motion by the defendants for sanctions against the plaintiffs for the first plaintiff’s failure to comply with the orders of Haberman M. dated September 15, 2011 and Sproat M. dated November 3, 2011.

[ 2 ] Subrules 57.03(1) and (2) are relevant. They provide as follows.

57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall

(a) fix the costs of the motion and order them to be paid within 30 days; or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

[ 3 ] Rule 60.12 is also relevant. That rule provides as follows.

Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just

[ 4 ] The plaintiff Nicola Federico was examined for discovery on February 18, 2010. He gave undertakings to answer some questions and refused to answer other questions.

[ 5 ] The defendants brought a motion for an order under subrule 34.15(1) that Nicola Federico answer his undertakings and refused questions. Haberman M. heard that motion on September 15, 2011. At that time she ordered Nicola Federico to answer his undertakings within 30 days and adjourned the balance of the motion to November 3, 2011.

[ 6 ] Sproat M. heard the adjourned part of the motion on November 3, 2011. Sproat M. ordered Nicola Federico to answer several refused questions and awarded the defendants costs of the motion fixed at $1,500 and payable within 30 days.

[ 7 ] By the time this motion was served in early March 2012, Nicola Federico was in default of both orders. The costs were unpaid. Some undertakings ordered answered were still outstanding.

[ 8 ] Defence counsel submits that in these circumstances the present motion was necessary and that I should award the costs of this motion to the defendants.

[ 9 ] Mr. Katzman, counsel to the plaintiffs’ lawyer Mr. Wilson, disagrees. He submits that the motion was not necessary because progress was being made in complying with the order of Haberman M. and that given time, Nicola Federico would fully comply with that order.

[ 10 ] Mr. Katzman says that the costs awarded by Sproat M. were not paid initially because the defendants’ law firm owed Mr. Wilson more than $1,500 in photocopying charges. Several requests for payment of Mr. Wilson’s photocopying invoices went unanswered.

[ 11 ] Ms. Burnett thought that her firm had paid $977.68 of Mr. Wilson’s photocopying expenses in early December. On April 10, 2012 Mr. Wilson’s office received a cheque for $977.68 from Ms. Burnet’s firm dated December 5, 2011 in an envelope with a postal meter date of April 4, 2012. It seems to me that what happened was the result of a mix-up in the mail room at Ms. Burnett’s office. The mail room staff did not process the envelope containing the cheque for $977.68 for several months. Ms. Burnett was unaware of this.

[ 12 ] The delay in comply with the substantive parts of the orders of Haberman M. and Sproat M. was primarily due to the fact that Mr. Wilson had a seven week jury trial which ended on March 2, 2012. Ms. Burnett was not aware that Mr. Wilson was engaged at this trial.

[ 13 ] A review of the correspondence sent to defence counsel and Ms. Burnett shows that while some progress was being made in complying with those orders, Mr. Wilson and Mr. Katzman missed several deadlines which they themselves had set for completing compliance with those orders. On April 17, 2012 Mr. Wilson paid the costs which Sproat M. awarded, shortly after receiving payment for all of his photocopying invoices.

[ 14 ] The original defence motion record for this motion was served at the beginning of March 2012. There was some difficulty in agreeing on a hearing date for this motion. Mr. Katzman was busy with other matters for most of March. The March dates when he was available were fully booked with other motions. The motion was originally returnable on April 11, 2012. It was adjourned to May 1, 2012 when I heard it. Even then there were some questions still unanswered. The parties settled the motion except for the issue of costs.

[ 15 ] In my view, the evidence before me tells a sad tale of protracted non-compliance with the orders of Haberman M. and Sproat M. I do not suggest for a moment that either Mr. Wilson or Mr. Katzman have been deliberately flouting orders of the court. Mr. Wilson is a sole practitioner with a busy practice. Mr. Katzman is also a sole practitioner who assists Mr. Wilson from time to time. Mr. Wilson must have known by early December 2011 that he would be heavily engaged in preparing for and attending a lengthy trial in January and February 2012. If the demands of Mr. Katzman’s own practice were such that he could not devote enough time to assisting Mr. Wilson to fully meet the demands of Mr. Wilson’s own practice while Mr. Wilson was engaged with his lengthly trial, Mr. Wilson should have made arrangements for additional assistance beyond that of Mr. Katzman.

[ 16 ] I agree with Mr. Katzman that the defence is not entirely blameless. Some correspondence from Mr. Wilson went unanswered. However the defence side was more sinned against than sinning. The first plaintiff’s failure to comply with two court orders extended over many months. Because of this I award the costs of this motion to the defendants fixed at $1,500 and order the plaintiff Nicola Federico to pay such costs to the defendants within 30 days.

Master Thomas Hawkins

DATE: June ___, 2012