SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-CV- 398786
MOTION HEARD: February 28, 2013

RE: 10-CV- 398786
Tesfaslasie v. Bursey

BEFORE: Master Joan Haberman

COUNSEL:
Opara, V. for the moving party
Fioria, D. For the responding party

REASONS

Master Haberman:

[1] On May 5, 2011, I ordered the plaintiff to re attend to commence his examination for discovery afresh, as the interpreter he had retained to assist on the previous occasion was neither competent nor independent. My Reasons of that date (Court Citation: 2011 ONSC 2830) more fully explain how I reached that conclusion.

[2] Pursuant to my order, the plaintiff was also required to pay costs of $5800 within 30 days. Again, my earlier Reasons go into some detail as to how I arrived at that result.

[3] On February 28, 2013, more than 21 months after the order was made, the plaintiff moved before me, seeking a variation of that order insofar as it pertained to costs. The basis of the request was his alleged impecuniosity. Though a considerable period of time was spent dealing with costs last day, there was no mention of impecuniosity at that time. There was also no indication that the plaintiff might find it impossible or even difficult to pay a cost order at that time. It was therefore not a factor that I considered in my deliberations last day.

[4] In addition to the variation, the plaintiff also seeks an order moving this action into case management.

[5] After reviewing the evidence submitted by both parties, as well as the law filed by the defendant, and having heard the submissions of counsel, I dismissed the motion in its entirety, with Reasons to follow.

CASE MANAGEMENT

[6] The plaintiff seeks to have the action moved into case management. In that regard, it appears his counsel is aware of Rule 77.05 and the criteria that must be addressed before such an order can be considered. It is not enough, however, to simply address these criteria by referring to them.

[7] It is a given that case management will assist the expeditious movement of most cases through the court, but that is not the threshold established by this Rule. If it were, we would find ourselves back at or very close to 100% case management- a situation the court is apparently not able or willing to properly resource at this time.

[8] Largely as a result of the resource issue, a decision was made in 2005 to halt the automatic application of case management to all civil actions initiated in Toronto. Rule 77.05 was enacted to establish a series of factors for the court to consider in particular cases when case management was sought. These criteria, when viewed together, suggest that case management should be reserved only for those cases that appear to require it, rather than all that would benefit from it.

[9] It is also important to bear in mind the opening words of subrule 57.05(4):

In considering whether to assign a proceeding for case management, the regional senior judge, other judge or case management master shall have regard to all relevant circumstances...

[10] As I have stated in at least one previous case, “relevant circumstances” must include the ability of the court to provide the necessary resources to case manage an action once it decides to do so. Currently, as a result of changes that have occurred in the Masters’ Office over the last few years, there are only the equivalent 8.5 Case Management masters handling all of the civil motions within our jurisdiction for all of Toronto. In addition, we preside over all Toronto Status Hearing courts, conduct all references, as well as all Simplified Rules pre-trials.

[11] Once a master assigns a matter to case management, they take responsibility for all motions that arise within a master’s jurisdiction in the case. Thus, instead of having access to the full pool of Case Management masters doing civil work, counsel must schedule all motions in the case only before the master managing it. This was not difficult when there were more of us doing this work. Now, however, we find that instead of a 4-week waiting time to book motions, we are generally booking motions 4 months ahead. In that scenario, it seems to me that in most cases, it is more appropriate for counsel to have access to the full slate of civil Case Management masters, rather than be constrained by the availability of one of us for any given case.

[12] As a result, in addition to the factors enumerated in subrule 77.05(4), I am also bound to have regard to whether having access to case management in this case could be problematic as a result of the court’s resource issues.

[13] Looking at the factors set out in the subrule, this is a 2-party action and each party has counsel. It is not unlike other personal injury actions that regularly and repeatedly come before our court in vast numbers. The issues are not complex and none will have an impact on the public. The fact that two counsel do not get along is not, in and of itself, a sufficient basis for making this order, particularly at this time, when the masters’ office faces serious resource issues.

[14] Further, the fact that this action has not moved forward is the result of the plaintiff’s own failure to pay a cost order or to take steps to deal with that order for more than a year and a half. The plaintiff should not be permitted to derive a benefit such as case management from his own dilatory conduct.

[15] In short, there is absolutely nothing about this action that allows me to view it as being in need of case management any more than any other run-of-the-mill personal injury action.

[16] I therefore dismiss this portion of the motion.

VARIATION of the COST ORDER

The plaintiff’s evidence

[17] The plaintiff filed a very short affidavit with few exhibits. In it, he explained that he sustained injuries in an accident that occurred in April 2008 while he was a pedestrian. He advised further that this event took place only a few months after he arrived in Canada as a visitor, and that he is now a permanent resident. He does not say when his status changed and he fails to indicate whether, first as a visitor, then as a newcomer to this country, he was even eligible to work legally in Canada at the time of the accident or at any time since then.

[18] This omission is important, in view of the plaintiff’s evidence regarding his inability to work. The plaintiff points to the injuries he sustained in the accident as the reason for his unemployed status since the time of the accident. He states that he is unable to pay the cost order as he is not working, nor has he worked since coming to Canada. He claims that it was the accident that is “entirely responsible” for this inability to work, in that it adversely affected his health.

[19] The plaintiff then states that he applied to “various places for manual and factory work”, but he fails to say where he applied or when he did so. He claims he even attended interviews, though it is not clear how he was able to communicate with the interviewers, of particular note in the context of the facts that gave rise to the original motion – the need to find an interpreter for the plaintiff. He states that no one was willing to hire him:

because I am unable to do the work due to the level of lifting required for those kinds of jobs.

[20] He provides no descriptions as to the nature of “those kinds of jobs” and does not say if he sought any form of employment that did not involve lifting, and if not, why not.

[21] To support his claim as to the nature and extent of his disability, the plaintiff has filed a multidisciplinary chronic pain assessment prepared by Chronic Pains Programs. The report does, indeed, note that the plaintiff suffers from significant problems and limitations as a result of his accident. A three-phase program was recommended for him, the final diagnosis being a positive one:

At the end of the program the patient is expected to resume and maintain and increase the level of his daily activities.

[22] However, this report is dated April 5, 2011, so it is almost two years old now. There is no suggestion in the report that the plaintiff will not improve or that he will never work again. There is also no evidence to that effect. There is no evidence as to whether the plaintiff participated in the program and how it helped him, if he did so. There is no other medical evidence provided, certainly nothing that is current and addresses his current abilities and disabilities, though it is now almost 5 years since this accident. The plaintiff, himself, provides evidence on this point which can only be referred to as scanty at best.

[23] Counsel made much of the fact that plaintiff did not provide more current medical documentation as he lacks the resources to pay for reports. However, all that was needed here was a photocopy of the relevant clinical notes and records from whatever physicians are currently treating him for whatever ongoing problems he still claims to have. This is something the plaintiff could have obtained easily and with minimal expense and he ought to have done so for the purpose of seeking this unusual form of relief so long after the fact.

[24] The plaintiff has included the short form tax information summary for the years 2008-2011. It is difficult to accept that he managed to survive on only the social assistance payments he received, which, for example, totaled less than $8000 in 2008 and just over $14,000 in 2011. Counsel asserts that the plaintiff lives in shelters – but he has filed no evidence regarding his living arrangements or how he manages on such a meagre income. Further, if counsel was aware that his client lived in shelters, why was impecuniosity not raised in response to a request for a cost order when costs were first being debated?

[25] Though the plaintiff claims he has not been earning income, he does not say if he brought money with him when he came to Canada; if he has assets here or in his country of origin; or if he has friends and family here who have sponsored and assisted and continue to assist him from time to time with financial issues. He does say that he initially came as a “visitor” – was he visiting someone here who assisted him? Further, the plaintiff has filed no evidence at all regarding his income or assets since 2011. Thus, while the plaintiff claims he is not earning an income, there is no evidence if there are others to whom he can turn for assistance with this outstanding cost order.

[26] The plaintiff also fails entirely to explain his delay in bringing this motion. Instead, he states unequivocally that he:

did not appeal it (the cost order) as I did not have the resources for an appeal.

[27] As it turns out, that is, strictly speaking, not a wholly accurate statement and I will return to it. If it were true, it would only raise more concerns as to why the plaintiff waited so long before seeking an order to vary my earlier order.

[28] Finally, the plaintiff now undertakes in his supporting affidavit to pay costs when this and his accident benefit claims are settled. He fails to state, however, if he has received any accident benefits since the date of loss. During the course of the hearing, his counsel indicated he was prepared to pay costs of $2000, rather than the $5800 as ordered, in instalments over time. Unfortunately, the time for negotiating costs passed long ago as the plaintiff has no leverage.

[29] From a liability perspective, this case is not without its difficulties from the plaintiff’s perspective. There was a witness who claims to have seen the plaintiff run out into the street in front of the defendant’s car and it was, in fact, the plaintiff who was charged after this accident. He was ultimately convicted of interfering with traffic contrary to a municipal by-law, and was ordered to pay a fine of $135.

[30] A finding of liability against the defendant is therefore not a foregone conclusion. If the plaintiff does not prevail at trial, there may be no funds from which he can pay costs.

[31] As a result, the plaintiff’s offer to pay the costs owing at the end of the day is, understandably, not an appealing one to the defendant.

[32] This is the sum total of the plaintiff’s evidence.

[33] When it became clear to his counsel that he was going to have difficulty with this motion in view of the poor evidentiary record, he sought an adjournment. That order was refused.

[34] As I have noted in other cases, a party cannot come to court with a deficient record, make submissions, listen to the court’s comments as to how and why his evidence is inadequate and then seek to come back with better materials another day after having had the benefit of judicial feedback. There would be no end to requests for “second chances” if counsel were permitted to run their first efforts by the courts, in anticipation of being able to put more flesh on the bones of the case if it appeared their initial efforts were not adequate.

[35] The court is not intended as a training ground, where counsel learn as they go in the context of a particular case. Counsel are professionals and are expected to know what they must do in order to meet evidentiary thresholds, particularly when seeking an extraordinary form of relief. Trying to get by with less is never a good idea. Counsel should not begin with a minimalist approach, and expect to come back again, after learning about the deficiencies in their materials. We do not preside over “test motions” – that would not be an expeditious route for doing justice between the parties.

[36] Further, an adjournment mid-motion would only be considered in rare cases, and then only on the basis of the plaintiff being ordered to pay costs thrown away. In view of what this motion was about, I saw no value in making such an option available here.

[37] Finally, in view of the long delays already plaguing this action and caused by plaintiff’s failure to deal with a long-outstanding cost order, an adjournment was not appropriate. The plaintiff had more than enough time to figure out what he had to get before the court and to do so. He claims he is now eager to move forward with the case so an adjournment is not the right path.

The defendant’s evidence

[38] The defendant challenges the plaintiff’s assertion that he took issue with my cost order but did not appeal it as he did not have the resources to enable him to do so. This, it appears, is not what he conveyed to the defendant at any time.

[39] To the contrary, the plaintiff made it clear, both to the defendant and to this court, that it was, indeed, his intention to appeal from my previous order insofar as costs were concerned. He served a notice of appeal on May 11, 2011, within days of getting that order, advising that the leave to appeal application had been scheduled to be heard on July 25, 2011.

[40] The plaintiff was apparently planning to appeal only the costs aspect of my order, though he appears to have taken issue with all of it. In his notice of appeal, he said nothing at all about being impecunious. Instead, he asserted that I exercised my discretion improperly. He also made no request to introduce new evidence regarding his financial status.

[41] Mr. Opara now takes the position that the fact that he served a notice of appeal is not inconsistent with his client having sworn in his affidavit that no appeal was taken. He stated that he did not interpret serving a notice of appeal as appealing.

[42] There are two problems with that position: 1) it is contradicted by the evidence, as more than filing a notice of appeal was undertaken and; 2) if no appeal was actually intended, why was the defendant led to believe that the costs were not being paid pending the outcome of the appeal?

[43] Appealing a cost order that involves less than $6,000 would, in most cases, result in nothing more than a Pyrrhic victory in the best case scenario, in view of the costs involved in such an enterprise. One would reasonably expect that, before exposing his client to such costs, counsel would confer with his client, explain this, and then take instruction.

[44] In view of court imposed deadlines, it would have been appropriated for counsel to alert his adversary to the fact that an appeal was being considered and instructions were being sought, such that service of the notice of appeal did not necessarily mean an appeal was the chosen route. This is not an uncommon practice and provides counsel and client some additional time within which to assess the situation before the client is forced to put his hand in his pocket.

[45] I had only released my Reasons on May 5, yet less than a week later, counsel made it very clear – not that he was considering an appeal, but that he was proceeding with an appeal and had already obtained a hearing date. The evidence discloses that the plaintiff did far more than simply serve a notice of appeal – he actually booked a date for a leave to appeal application and he ordered the transcript of the proceeding that took place before me.

[46] Counsel also wrote directly to me on May 12, 2011, seeking my consent to the release of the transcript to him. Though I responded by sending back that letter with my notation granting consent to access written directly on it, counsel wrote again on May 20, 2011, advising me that he was sending me a “gentle reminder” to respond, that he was “contesting my findings” in that I had “misapprehended the evidence” and that release of the transcript was necessary “for the interests of justice and fairness”.

[47] Motions courts are generally not courts of record. When it is anticipated that there will be parties in court who represent themselves, it has become the practice to have a record made of the proceedings, so that it is clear what was said, as well as what was not said. Why counsel should require access to such a record in this case is difficult to understand, however, as access was sought, I was certainly not going to stand in counsel’s way.

[48] Counsel provided the reporter with my consent by fax of June 8, 2011 and with a deposit for the transcript in the amount of $320 on June 30, 2011. When the full transcript had not yet been received by July 15, counsel wrote an incredibly disparaging and inappropriate letter to the court reporter, threatening to report her to the Attorney General, telling her that he was “puzzled and disoriented” by her delay and complaining about the possible financial repercussions’ to his client if he was not able to serve his motion record, inclusive of the transcript, on July 18. Thus, as of July 15, the plan to appeal was still very much on track.

[49] It is difficult to reconcile counsel’s statement that no appeal was taken from my order with the fact that he wrote twice to me, was repeatedly in contact with the reporter’s office and paid a deposit towards the transcript. His last letter to the reporter was only 10 days before the leave return date.

[50] Yet there is nothing at all in the plaintiff’s evidence explaining any of this or why the transcript was even necessary when my reasons were not read in court but released in writing. There was no suggestion of bias in the notice of appeal. Further, counsel sought an order transferring this matter to case management –which meant he was content to have me oversee it.

[51] The defendant’s evidence makes it clear that the plaintiff never confirmed the hearing date for the leave motion and that though he tried to have someone from his office speak to the matter that day, it was not on the list, so was not called.

[52] Again the plaintiff’s evidence is silent as to whether the plaintiff instructed his counsel not to go ahead with the appeal, or if the failure to confirm was counsel’s omission. If the former, when were those instructions received and why? Again, there is no mention that the plaintiff, upon realizing what the appeal would cost, saw that it was not a financially appropriate way to proceed to challenge a costs order. Was the transcript received? Was it paid for, aside from the deposit?

[53] All that is clear is that the leave to appeal was not heard because it was not confirmed, not because the motion was withdrawn.

[54] The plaintiff persisted in taking no steps to either formally withdraw his appeal or to pay the cost order so the action could move forward. Defence counsel wrote on November 14, 2011, asking plaintiff’s counsel to circulate new proposed dates for this motion. They heard nothing. Defence counsel wrote again on March 7, 2012 – almost 8 months after the leave to appeal motion was scheduled to be heard – to find out whether or not the leave to appeal was still going to proceed at some future date. Throughout all that time, the cost order remained due and outstanding.

[55] On March 8, 2012, plaintiff’s counsel advised for the first time that he had now been instructed not to proceed with the appeal. He did not say why that was the case or when that decision had been made, nor did he book a motion to vary my cost order at that time or earlier.

[56] By that point, payment of the cost order was long overdue. The plaintiff had held the defendant at bay for several months by advising that there would be an appeal but as none was forthcoming, the plaintiff ought to have either moved to vary my order or paid the delinquent cost order as soon as it was clear that the appeal was not going to happen, so the parties could move forward. Instead, counsel simply ignored the outstanding order, asking for discovery dates without reference to his client’s breach. The matter reached a stand still.

[57] On April 10, 2012, the court issued a status notice for this action and a status hearing was sought. Defence counsel made it clear by letter in August 2012 that they would be asking to have the action dismissed for delay at that time. Still no motion was booked to vary my cost order.

[58] Counsel appeared in Status Hearing court before Master Brott on September 24, 2012. At that time, rather than move to dismiss for delay, defence counsel raised the issue of the long outstanding unpaid cost order to explain why the action had stagnated. This was the first time the issue of impecuniosity as a barrier to payment of that order was raised. Master Brott stated as follows:

What should have occurred a long time ago – after the cost order was made –was either an appeal or a motion seeking to vary Master Haberman’s order – to be brought before Master Haberman. Although much time has passed and it may be found to be too late that must be the next step as that order is clearly in the way of progress. The plaintiff shall have 30 days to serve and file the notice to vary the order of Master Haberman of May 6, 2011. No other steps may be taken then save and except if the plaintiff chooses to actually pay those outstanding costs.

[59] Master Brott effectively stayed the action aside from the plaintiff either paying the cost order or moving to vary it. The idea of moving to vary actually emanated from Master Brott – this was apparently not something the plaintiff ever thought to do, thus the absence of any explanation as to why it took so long to proceed in that way in his material.

[60] Master Brott did make it clear in her endorsement that it may be too late, even at that point, to succeed on such a motion. Despite that, dates for the motion were not even sought from the court until October 19, 2012 – almost a full month after the Status Hearing. The date sought was February 28, 2013.

[61] The plaintiff then ignored Master Brott’s order and tried to have the matter heard by another master, though Master Brott was clear that it should come before me.

The law, analysis and conclusion

[62] The plaintiff filed no law to support his position on this motion, which was a very simple one –essentially, after having initiated and then informally abandoned an appeal, and despite all the time that has passed since my cost order, the plaintiff now seeks to have me vary the order on the basis that he claims to be impecunious. This is not a new situation that developed after the original motion – the evidence that has been filed is intended to suggest that he has been in this state since the accident.

[63] It seems clear that this relatively new approach is the result of an appearance before Master Brott at Status hearing court, rather than something the plaintiff came up with on his own. He entirely fails to address the delay in bringing this motion, and reference to it was not mentioned until the Status Hearing - and then by the Master, not counsel.

[64] I begin by stating that the evidence of impecuniosity is far from satisfactory. I have alluded repeatedly in these reasons to various facts not provided and to the lack of clarity regarding what has been disclosed.

[65] The plaintiff asserts that if the defendant wanted to know more, he ought to have cross-examined him. I do not agree. The onus lies on the plaintiff when coming to court to seek a variation of a previous order. If the plaintiff fails to meet his evidentiary burden, why should a defendant be expected to assist by cross-examining him so that he can fill in the gaps?

[66] Further, even if the defendant has not taken issue with these gaps, it is the court that must ultimately be satisfied that the order sought is appropriate in the circumstances. Again, a decision not to cross-examine in no way impinges on my finding that the plaintiff has not done what he ought to have done.

[67] Having found that the evidence does not clearly support a finding of impecuniosity, I really need go no further. On that ground alone, I must dismiss this motion.

[68] In this case, however, I believe it is important to canvas this issue from all directions, to put the matter at last to rest.

[69] Another issue that must be considered is the delay in raising impecuniosity. Although counsel advise during the hearing of the motion that his client lives in shelters, he has provided no evidence to that effect at any time. If that is the case, he ought to have come to court in first instance, prepared to argue impecuniosity. He should have anticipated the possibility that his client could lose the motion and be ordered to pay costs. In view of where he client was living, how could he not have considered how he could pay a cost order if unsuccessful?

[70] The general approach to costs is found at Rule 57.03(1) That Rule makes it clear that at the conclusion of a motion, costs should be fixed and ordered payable within 30 days unless the court is satisfied that a different order should be made. The usual way to satisfy a court is to file evidence.

[71] Thus, counsel should have attended, with the necessary evidence to establish impecuniosity in hand or an adjournment ought to have been sought at that time to give him time to put an evidentiary record together. Instead, nothing at all was said about impecuniosity.

[72] Thus, in addition, the poor evidentiary record, the fact of the delay, coupled with the lack of any explanation for it, are fatal to the success of this motion.

[73] There is also no explanation as to why the plaintiff failed to move to vary the order if he was not prepared to or capable of honouring it. I am left to infer that once the plaintiff realized he would have to pay for the court transcript and what that would cost him, the thought of seeking leave to appeal lost its appeal. He then became stuck in the mire of litigation, not knowing how to go forward without actually having to pay the cost order. His counsel chose to deal with the problem by going into denial and simply ignoring it, writing aggressive letters about discovery dates.

[74] In the interim, the action stalled. Pursuant to Rule 60.12, in view of the plaintiff’s failure to comply with this cost order, the defendant could have asked to stay this action or to even dismiss this claim. They did not do so. It was only at the Status Hearing that Master Brott who imposed the stay. The defendant no longer sought to have the action dismissed at that time but he did and still does want to have his costs paid before the action goes any further. This is something he is entitled to.

[75] In terms of the law, the cases are clear that impecuniosity has rarely been invoked successfully as a basis for failing to pay costs. Imposing costs discourages parties from behaving badly during pre-trial proceedings, from bringing frivolous motions and from responding improperly to motions brought instead of doing what is required of them under the Rules. When parties are exempted from having to pay costs the system loses control. That party then has cart blanche to ignore the Rules, as well as court orders.

[76] Ontario is a cost jurisdiction for a reason – this approach is an effective way of ensuring that the parties take their responsibilities as litigants seriously and that they do not abuse the court system or other parties (see Burrell v. Regional Municipality of Peel Police Services Board 46173).

[77] In the rare case where impecuniosity has been invoked successfully to shield a party from a cost order, it is usually the case that they have shown the court that they have a strong case on the merits. The plaintiff has made no effort to do that here. Further, the defence’s evidence suggests quite the opposite- liability will be an uphill battle for this plaintiff. No current medical reports or up-to-date medical notes and record have been provided to show a strong case on damages, either.

[78] I therefore find that the evidence does not support a finding of impecuniosity in this case. Even if it did, the delay in seeking to vary the cost order, unexplained, is overly lengthy and, in view of the apparent merits of the case and the absence of any evidence to demonstrate why this plaintiff deserves special treatment, this motion must be dismissed.

[79] The plaintiff shall therefore pay the long-outstanding cost order of $5800 no later than the end of March 2013. The action remains stayed, save and except for payment of these outstanding costs by the end of March 2013 or a defence motion to dismiss for failure to do so within that time frame.

[80] If the parties are not able to agree regarding the costs of this motion, I can be spoken to within 30 days.

Master Joan M. Haberman

Released: March 7, 2013