SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 01-CV-22 1790CM3

MOTION HEARD: June 1, July 30 and August 22, 2012

RE: Frank Esposito

v.

City of Toronto

BEFORE: Master Thomas Hawkins

COUNSEL:
Matthew Certosimo for
moving defendants
Fax No. 416-361-7346

Frank Esposito responding plaintiff
in person

REASONS FOR DECISION

Preliminary Matters

[ 1 ] At the outset of this motion on June 1, 2012 the plaintiff requested an adjournment on two grounds. First, he complained that he had not received seven days advance notice of this motion as he is entitled to receive under subrule 37.07(6). He appears to be correct in stating that he received short notice of this motion. Connie Volpentesta, a law clerk who has been assisting Mr. Certosimo in the defence of this action swore the affidavit of service. Ms. Volpentesta arranged to have a courier serve Mr. Esposito with the defendant’s motion record, factum and brief of authorities. She gave these materials to the courier on May 23, 2012. Assuming Mr. Esposito got the materials the next day, that gave him only six days advance notice of this motion rather than the required seven days notice. Mr. Esposito says that this did not give him enough time to prepare and respond to this motion.

[ 2 ] Mr. Espositio’s second reason for requesting an adjournment was that he wished to cross-examine Ms. Volpentesta on the affidavit which she sore in support of this motion. Shortly afterwards he withdrew his request to cross-examine Ms. Volpentesta.

[ 3 ] I dealt with Mr. Esposito’s request for an adjournment in this manner. I said that I would limit the proceedings on June 1, 2012 to hearing Mr. Certosimo’s submissions. I would not call upon Mr. Esposito to present argument and otherwise respond to the motion on June 1, 2012. Instead, I gave two half-day special appointments to hear the balance of this motion, one for July 30, 2012 and the other for August 22, 2012. I said that Mr. Esposito could have all the time available on July 30, 2012 and most of time available on August 22, 2012 to make his submissions. Mr. Certosimo would have the balance of the time available on August 22, 2012 to make his reply submissions. This gave Mr. Esposito almost two months to prepare his response to this motion while making use of the court time available on June 1, 2012.

[ 4 ] I have said that Mr. Esposito was served with the defendant’s motion materials by courier. Rule 16 governing the service of documents does not authorize service by courier on litigants like Mr. Esposito who represent themselves. However, since Mr. Esposito did in fact receive the defendant’s motion record, factum and brief of authorities, I order under rule 16.08 that service of these documents on Mr. Esposito by courier be validated.

Nature of Motion

[ 5 ] I now turn to the merits of this motion. This is a motion by the defendant for an order dismissing this action with substantial indemnity costs for the failure of Mr. Esposito (a) to pay $10,000 in costs awarded to the defendant by Ducharme J. on September 19, 2008 and (b) to pay $30,000 in costs which I awarded to the defendant on October 18, 2011, such costs being payable by the plaintiff within 30 days.

[ 6 ] The defendant brings this motion under subrule 57.03(2) and rule 60.12.

[ 7 ] Subrule 57.03(2) provides as follows.

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.

[ 8 ] Rule 60.12 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.

[ 9 ] Subrule 57.03(2) is narrow in scope. It applies only in situations where a party has failed to pay the costs of a motion as ordered. Rule 60.12 is broader in scope. It applies to situations where a party fails to comply with any interlocutory order made in an action or application.

[ 10 ] If one considers an appeal like that which Ducharme J. heard to be a “motion” within the meaning of subrule 57.03(2) then both subrule 57.03(2) and rule 60.12 apply to Ducharme J.’s interlocutory order of September 19, 2008 that the plaintiff pay the defendant $10,000 in costs. If one does not consider the appeal which Ducharme J. heard to be a “motion” then rule 60.12 applies, because the order which Ducharme J. made was interlocutory in nature. That order combined with the order which Ducharme J. made on August 2, 2007 dismissed the plaintiffs’ appeal from my order of March 14, 2007. The orders which Ducharme J. made on August 2, 2007 and September 19, 2008 did not dispose of this entire action. In other words, the plaintiff’s failure to pay the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008 was a failure to comply with an interlocutory order within the meaning of rule 60.12.

[ 11 ] Both subrule 57.03(2) and rule 60.12 apply to the order which I made on October 18, 2011 that the plaintiff pay the defendant $30,000 in costs because the plaintiff’s failure to pay those costs is a failure to pay the costs of a motion and a failure to comply with an interlocutory order. My order of October 18, 2011 did not finally dispose of this action.

[ 12 ] This action was commenced on December 10, 2001. I have been case managing this action since September 24, 2002.

[ 13 ] On August 28, 2006 I made a timetable order under Rule 77 as that rule then provided. My timetable order directed that the plaintiff examine the defendant for discovery during the week of December 18 to 22, 2006. The plaintiff never made arrangements to do so. The plaintiff’s examination for discovery of the defendant never took place as ordered, or at all.

[ 14 ] My timetable order of August 28, 2006 also directed the defendant to examine the plaintiff for discovery during the week of December 11 to 15, 2006. The defendant’s lawyers served the plaintiff with an appointment to examine him for discovery that week. The plaintiff did not attend to be examined as ordered, despite prior warnings from the defendant’s lawyers that if he failed to attend to be examined as ordered they would bring a motion for an order dismissing this action.

[ 15 ] As they threatened to do, the defendant’s lawyers brought a motion for an order dismissing this action for the plaintiff’s failure to attend to be examined for discovery in compliance with my timetable order of August 26, 2006. I heard the motion on February 21, 2007.

[ 16 ] Several times during the hearing of the motion on February 21, 2007 I asked the plaintiff the following question. If I gave the plaintiff another chance to attend and be examined would he attend to be examined as ordered? Initially, the plaintiff declined to answer this question. However, having reflected on his position over the luncheon recess, the plaintiff told me in open court that he would attend to be examined for discovery and that he was available on the dates which the defendant’s lawyers proposed. I then made an order that the plaintiff attend to be examined for discovery on five days in March 2007.

[ 17 ] In an endorsement released March 14, 2007 I declined to dismiss the plaintiff’s action. I described my order that the plaintiff attend to be examined for discovery on fixed dates in March 2007 as a last chance order for the plaintiff. I warned him in that endorsement that if he failed to obey my order then, absent highly unusual circumstances, a second defendant’s motion to dismiss this action would succeed. I awarded the defendant the costs of that motion fixed at $6,500.

[ 18 ] Despite what the plaintiff said in open court on February 21, 2007 and despite the warnings in my endorsement of March 14, 2007, the plaintiff did not attend to be examined in compliance with my last chance order. Instead he appealed my order.

[ 19 ] Ducharme J. heard and dismissed the plaintiff’s appeal on August 2, 2007 and awarded the defendant the costs of that appeal on September 19, 2008. By August 2, 2007 the plaintiff had attended to be examined for discovery.

[ 20 ] I find it significant that when the plaintiff’s appeal was being argued on August 2, 2007 the defendant offered to waive payment of the $6,500 in costs which I awarded to the defendant on March 14, 2007 if the plaintiff would abandon his appeal. The plaintiff declined to do so despite a clear warning from Ducharme J. that the plaintiff would face a further costs order against him if his appeal were unsuccessful. In my view the plaintiff acted unreasonably.

[ 21 ] The plaintiff served two notices of motion for leave to appeal from the order of Ducharme J. but never filed those notices with the court office. As a result, there was no appeal from the order of Ducharme J.

[ 22 ] On June 11, 2009 the defendant brought a second motion to stay or dismiss this action on the ground that the plaintiff had failed to pay the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008. The plaintiff did not attend the hearing that day. Mr. Certosimo attempted to reach the plaintiff by telephone without success. (The plaintiff says that he was unable to attend court on June 11, 2009 for medical reasons.) I adjourned the motion to June 25, 2009. The defendant had previously booked time on June 25, 2009 for a different motion in this action.

[ 23 ] On June 12, 2009, Michelle Henry, a lawyer who has assisted Mr. Certosimo in the defence of this action wrote the plaintiff by email and regular mail advising him that the defendant’s motion to have this action stayed or dismissed and/or for security for costs would proceed on June 25, 2009.

[ 24 ] The plaintiff did not attend court on June 25, 2009. At that time I made an order that the plaintiff pay by September 25, 2009 the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008, the costs of the motion brought on June 11 and 25, 2009 fixed at $3,500 and post security for costs of $15,000 as an initial installment. My June 25, 2009 order also provided that if the plaintiff failed to make the payments due on September 25, 2009, the defendant could move for an order dismissing this action with costs.

[ 25 ] Connie Volpentesta sent the plaintiff a copy of my June 25, 2009 endorsement by email later the same day. On July 3, 2009 Ms. Henry sent the plaintiff the formal typewritten reasons for my decision of June 25, 2009 by regular mail.

[ 26 ] The plaintiff did not comply with my order of June 25, 2009. Instead he brought a motion for an order setting aside my June 25, 2009 order.

[ 27 ] The defendant then brought a motion for an order staying or dismissing this action with costs for failure of the plaintiff to pay the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008 and the $3,500 in costs which I awarded to the defendant on June 25, 2009 and for increased security for costs.

[ 28 ] The defendant’s motion first came before me for hearing on June 23, 2010. By that date the plaintiff’s motion to set aside my order of June 25, 2009 was still pending. I decided that I would hear the defendant’s motion first because if that motion were successful, it would not be necessary for me to hear the plaintiff’s motion to set aside my June 25, 2009 order. On the other hand if I were to dismiss the defendant’s motion, I would then hear the plaintiff’s motion to set aside my June 25, 2009 order.

[ 29 ] The plaintiff complains that my decision that I would hear the defendant’s motion to dismiss this action before I heard the plaintiff’s motion to set aside my June 25, 2009 order was erroneous because it was at variance with a consent order I made in this action on October 13, 2009. He submits that I was bound by the terms of the consent between the parties.

[ 30 ] The plaintiff has his facts wrong.

[ 31 ] The order which I made on October 13, 2009 was not an order made on the consent of the parties. That order timetabled the steps to be taken before I heard two motions. One such motion was a motion by the plaintiff to set aside the orders which I made on June 11 and June 25, 2009. The other motion was one by the defendant to dismiss this action in part for the failure of the plaintiff to comply with my order of June 25, 2009. My order of October 13, 2009 did not state in what order I would hear the two motions nor did it set a hearing date or dates for the two motions. The order stated that I would set a hearing date at a telephone case conference to be held later.

[ 32 ] As events developed, both sides decided they would not file all the materials for use on these two motions by the deadlines set out in my October 13, 2009 order. Instead, they wanted to see if they could resolve this action at mediation. I was aware of this development and approved them going to mediation at that time.

[ 33 ] On November 30, 2009 I made an order that if this action did not settle at mediation, then either side could write me requesting a telephone case conference to vary my timetable order for the two motions which I had made on October 13, 2009.

[ 34 ] As matters developed, this action did not settle at mediation.

[ 35 ] On March 1, 2010 I made a new timetable for these two motions. I gave the parties on all day special appointment for June 23, 2010 to hear these motions.

[ 36 ] In my view nothing happened before June 23, 2010 and certainly not on October 13, 2009 which limited in any way the discretion I had to control the motions before me and to decide that I would hear the defendant’s motion first.

[ 37 ] Because the plaintiff’s motion to set aside my June 25, 2009 order was still pending when I decided to hear the defendant’s motion first, as argued the defendant’s motion was considerably narrower than the defendant’s notice of motion would suggest. The defendant no longer sought security for costs and no longer relied upon the plaintiff’s failure to pay the $3,500 in costs which I awarded to the defendant on June 25, 2009. As argued, the defendant’s motion for an order staying or dismissing this action was brought under rule 60.12 and the plaintiff’s failure to pay the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008.

[ 38 ] Argument of the defendant’s motion proceeded over five days ending on August 31, 2011. The plaintiff’s argument took the vast majority of this time. On August 31, 2011 I reserved my decision.

[ 39 ] I released my decision on the defendant’s motion on October 18, 2011. I made an order staying this action and awarding the defendant costs of the motion fixed at $30,000 payable within 30 days. I also made an order that if the costs awarded by Ducharme J. were not paid and the stay lifted within six months (that is by April 18, 2012) the defendant could move for an order dismissing this action with costs.

[ 40 ] The plaintiff appealed from this order. The appeal was heard by O’Marra J. on February 16, 2012. In an endorsement released on March 13, 2012 O’Marra J. dismissed the plaintiff’s appeal and awarded the defendant $17,005.75 in costs of the appeal payable within 30 days.

[ 41 ] My order of October 18, 2011 and the order of O’Marra J. of March 13, 2012 were both interlocutory orders because neither order finally disposed of this action.

[ 42 ] A litigant like the plaintiff who wishes to appeal from an interlocutory order of a judge must first obtain leave to appeal to the Divisional Court under rule 62.02. That rule provides as follows.

(1) Leave to appeal to the Divisional Court under clause 19(1)(b) of the Act shall be obtained from a judge other than the judge who made the interlocutory order.

(1.1) If the motion for leave to appeal is properly made in Toronto, the judge shall be a judge of the Divisional Court sitting as a Superior Court of Justice judge.

(2) The notice of motion for leave shall be served within seven days after the making of the order from which leave to appeal is sought or such further time as is allowed by the judge hearing the motion.

(3) The notice of motion for leave shall name the first available hearing date that is at least three days after service of the notice of motion.

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[ 43 ] The plaintiff has served several notices of motion for leave to appeal to the Divisional Court as well as a notice of motion for an order dispensing with the requirement that he first obtain leave to appeal. The plaintiffs asked me to adjourn the hearing of the defendant’s motion to dismiss this action pending the outcome of the plaintiff’s various motions. I then asked Mr. Certosimo how he wished to proceed. He said that he wanted me to hear the defendant’s motion now and not to await the outcome of the plaintiff’s various motions. I then proceeded to hear the defendant’s motion to dismiss this action.

[ 44 ] By the time argument of the defendant’s motion to dismiss concluded on August 22, 2012 the plaintiff’s motions had not been disposed of. Since August 22, 2012 neither side has advised me that any of the various motions by the plaintiff have been heard and decided, let alone decided in the plaintiff’s favour.

[ 45 ] The plaintiff has failed to pay the defendant any of the costs which Ducharme J. awarded to the defendant over three years ago. He has given no real indication that he ever intends to pay those costs. Before me the plaintiff did not ask for additional time to pay.

[ 46 ] The plaintiff says that he has offered to pay costs to the defendant over time but that the defendant has rejected his offer. I do not know the details of any such offer. Be that as it may, the fact remains that the plaintiff has not paid the defendant anything towards the costs which he owes the defendant.

[ 47 ] The failure to pay costs situation has only gotten worse since September 19, 2008. There are now three unpaid orders that the plaintiff pay the defendant costs totalling over $57,000 not counting the $3,500 in costs which I awarded to the defendant on June 25, 2009.

[ 48 ] In his decision of March 13, 2012 O’Marra J. characterized the plaintiff’s failure to pay costs as a persistent and defiant refusal to comply with interlocutory orders. I respectfully agree.

[ 49 ] The plaintiff submitted that once he appealed from my order and the order of O’Marra J., I lost jurisdiction to hear the defendant’s motion to dismiss. I disagree. The plaintiff’s appeal from my order was dismissed by O’Marra J. The plaintiff has yet to appeal from the order of O’Marra J. because he has neither obtained leave to appeal from that order nor obtained an order dispensing with the requirement that he first obtain leave to appeal.

[ 50 ] On August 22, 2012 I learned that the plaintiff had appealed from my orders of June 1 and July 30, 2012. This makes subrule 63.01(1) relevant. That subrule provides as follows.

The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.

[ 51 ] On June 1, 2012 I did not make any order for the payment of money. I simply made an order dealing with the plaintiff’s request for an adjournment and later validated service by courier on the plaintiff of the defendant’s motion record, factum and brief of authorities. I also made an order that I would proceed to hear the defendant’s motion on June 1, July 30 and August 22, 2012.

[ 52 ] I did not make any order whatsoever on July 30, 2012. I simply continued to hear the plaintiff’s submissions respecting the defendant’s motion.

Bias

[ 53 ] During argument of his appeal before Ducharme J. on August 2, 2007 the plaintiff objected to the tone of my endorsement of March 14, 2007 and submitted that I was biased against him. Ducharme J. dismissed the plaintiff’s appeal on the basis of bias.

[ 54 ] There was no court reporter present on February 21, 2007 when the defendant’s earlier dismissal motion was argued. There was a court reporter present on each of the days when this motion was argued.

[ 55 ] During argument on July 30, 2012 the plaintiff and I had a discussion about whether I was biased against him. He conceded that I was not biased against him at a subjective level. However he submitted that my conduct of the management of this action and particularly the way in which I have dealt with the motions which have come before me in this action has created in the plaintiff a reasonable apprehension that I was biased against him.

[ 56 ] First of all, I do not understand how a litigant like the plaintiff, who concedes that a master or judge is not subjectively biased against that litigant, can have a reasonable apprehension that the master or judge is biased against that litigant.

[ 57 ] I have not been rude to the plaintiff. I have endeavoured to keep the plaintiff focused on the issues that matter in the motions which I have heard in this action. I have also tried to ensure that I have given the plaintiff a reasonable amount of time to make his submissions. I allowed the parties five days to make their submissions in the defendant’s first motion to stay or dismiss this action on the ground that the plaintiff had failed to pay the $10,000 in costs which Ducharme J. awarded to the defendant on September 19, 2008. The plaintiff’s submissions took the vast majority of those five days. The present motion took about five hours to argue. The defence submissions took about one hour (45 minutes on June 1, 2012 and about 15 minutes on August 22, 2012) while the plaintiff’s submissions took about four hours (about two hours on both July 30, 2012 and August 22, 2012).

[ 58 ] I have been critical of the plaintiff’s conduct from time to time in my reasons for decision disposing of the motions I have heard in this action. I believe my criticisms of the plaintiff’s conduct to have been justified. Surely, if a judge or master has been justifiably critical of the conduct of a litigant that is not evidence that the judge or master is biased against that litigant.

[ 59 ] Lastly, although the plaintiff has from time to time raised the issue of whether I have been biased against him, he has never brought a motion before me requesting that I recuse myself from further involvement with this action.

Summary

[ 60 ] In my view the plaintiff has repeatedly delayed the progress of his own action. The action will soon be 12 years old. It is still barely past the pleadings stage. The plaintiff has not yet examined the defendant for discovery. The plaintiff may well feel that he has been diligently working on his action. I agree that he has spent a great deal of time on this action. However nearly all of this time and effort has not moved his action closer to trial.

[ 61 ] The plaintiff’s conduct in this action has put the defendant to expense for above what is normal. I have described this conduct in these reasons for decision and in my decision of October 18, 2011. His persistent and defiant failure to pay the costs which have been awarded to the defendant only makes the situation worse. He has repeatedly acted unreasonably and disobeyed court orders. The plaintiff has given me no reason to believe that if I were to dismiss this motion and give the plaintiff yet another chance, things would change for the better. Rather, he has given me every reason to believe that his unacceptable conduct will continue and that if I do not dismiss this action it will drag on for years to come.

[ 62 ] For all these reasons, I have come to the conclusion that the appropriate sanction in these circumstances is an order dismissing this action with costs to the defendant payable forthwith after assessment. So ordered.

[ 63 ] I award the costs of this motion to the defendant fixed at $15,000 and order the plaintiff to pay such costs to the defendant within 30 days.

Master Thomas Hawkins

DATE: October 30, 2012