Superior Court of Justice - Ontario
Court File No.: FS-08-343270
Date: 20130405
RE: Nabila Nashid, Appicant
AND:
Waheed Michael, Respondent
BEFORE: Whitaker, J.
COUNSEL:
Granville N. Cadogan, for the Applicant
Avra Rosen, for the Respondent
HEARD: April 2, 2013
Endorsement
By order of Herman J. on August 5, 2011 the applicant was found to be in contempt for failure to provide outstanding court ordered disclosure. In the same order, the applicant was given until August 31, 2011 to purge her contempt by complying with outstanding orders. She failed to do so.
Between August 31, 2011 and January 12, 2012, the applicant was given a number of opportunities to have a hearing to deal with issues arising from the finding of contempt. She was repeatedly unavailable.
On December 20, 2011 and January 12, 2012, Herman J. heard a motion brought by the respondent to strike the applicant’s pleadings.
By order of February 3, 2012, Justice Herman struck the application but permitted the applicant to bring a motion to set aside the striking of the application by March 31, 2012. Justice Herman permitted the respondent to proceed with an undefended trial after March 31, 2012.
The applicant did not have a motion heard to set aside the striking of the application by the March 31, 2012 deadline set by Justice Herman. She suggests that she intended to do this before March 31, 2012 and was unable to do so as a result of the unavailability of the court file.
Pursuant to the Herman order, the respondent proceeded with the contemplated undefended trial before Kruzick J. on May 14 and 15, 2012.
The applicant was not given notice of the application brought before Kruzick J.
The applicant asserts that the respondent failed to provide full and complete disclosure at the hearing of the application, including asserted unsuccessful efforts made by the applicant to move to set aside the Herman order striking her pleadings.
Justice Kruzick heard oral evidence at the trial. There is no transcript of the trial.
By final order, Kruzick J. granted the respondent an equalization payment and other relief.
The applicant wishes now to set aside the order of Herman J. of February 3, 2012, striking the applicant’s pleadings and further wishes to strike the final order of Kruzick J. dated May 18, 2012 granting an equalization payment and other relief to the respondent.
The applicant has not appealed the Herman or Kruzick orders.
There remain costs orders unpaid.
The respondent has not provided the court ordered disclosures.
The applicant has failed to persuade me that the two orders should be set aside. She was given every opportunity and many indulgences, to bring herself into compliance with the court’s orders for disclosure and the payment of costs.
Her obligations remain outstanding.
The applicant was not entitled to notice of the last application brought before Kruzick J., resulting in the final order. She failed to move with dispatch within the time frame set out by Justice Herman in the February 3, 2012 order.
The applicant proceeded in an appropriate fashion and pursuant to the direction provided by Justice Herman. I do not agree with the applicant that the respondent failed to provide full disclosure at the trial. In any event, the applicant was not at the trial and there is no transcript.
Throughout this litigation, the applicant has been given many opportunities to remediate her position. She has failed to take advantage of these opportunities and is entirely responsible for the position she now finds herself in.
Assuming that I have jurisdiction over the final order of Kruzick J. which assertion is contested, the applicant’s motion is dismissed.
I have heard and considered the costs submissions made by the parties at the motion. I have also considered the factors which should guide my discretion to award costs and particularly the reasonable expectations of the losing party and the need for costs orders to be proportionate to the circumstances of the dispute to be decided.
The respondent is entitled to his costs inclusive of taxes and disbursements, fixed at $5000, payable forthwith.
Whitaker, J.
Date: April 5, 2013