COURT FILE NO.: CV-11-15768
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Visic, Plaintiff
AND:
University of Windsor, Mary Gold, Ross Paul and Brian Mazer, Defendants
BEFORE: Master Lou Ann M. Pope
COUNSEL: Anna Visic, acting in person
Michael A. Wills, for the Defendants
HEARD: October 4, 2012 and December 7, 2012
REASONS FOR Endorsement
[1] The defendants seek an order dismissing this action for failure of the plaintiff to pay numerous costs orders. In the alternative, they seek an order dismissing this action for delay, and in the further alternative, an order directing the plaintiff to pay the outstanding costs orders within 30 days failing which this action shall be dismissed.
[2] The plaintiff opposes the motion for several reasons. She contends that she has been diligent by taking proper steps in this proceeding, the defendants are responsible in part for the delay, and the delay can be explained including her claim that she is impecunious. The plaintiff is prepared to set a timetable for completion of the balance of the steps in this action.
Background
[3] The plaintiff started law school at the University of Windsor (“University”) in the fall of 1999. However, she failed to meet the academic expectations for a first year law student. An issue of the plaintiff’s medical condition arose during that year along with the issue of appropriate level of accommodation. While it is not in dispute that the University provided some accommodation, the plaintiff disputes the adequacy of it. Ultimately, the Academic Status Committee decided that the plaintiff could be readmitted to Law 1 based on medical reasons; however, the University refused to amend the plaintiff’s transcript to delete the 1999-2000 academic year. She completed her law degree at the University in 2005. However, she has not been called to the bar in Ontario having completed only a portion of her articles. She alleges that she was terminated from the law firm where she was articling in November or December 2007 when the firm was provided with a copy of her transcript and discovered that she had not completed her first year of law school in 1999-2000.
[4] The plaintiff alleges in the statement of claim that the University breached its obligations to her by failing to accommodate her medical needs. It is further alleged that because the defendants refused to remove her 1999-2000 academic year from her transcripts, she suffered damages including loss of opportunity to complete summer and articling applications and loss of opportunity for future career and earnings. She seeks damages for breach of contract, negligence and breach of fiduciary duty, interlocutory and permanent injunctions restraining the defendants from displaying her 1999-2000 year on her transcript, an order that the University amend its policies regarding transcripts, and aggravated and exemplary damages.
[5] The individual defendants, Mary Gold, Ross Paul and Brian Mazer, were all employees of the University at the relevant times and who held the positions of Associate Dean of the Faculty of Law, President of the University, and Acting Registrar, respectively.
[6] The facts of this action cannot be fully understood without knowledge of two applications commenced by the plaintiff to the Ontario Human Rights Commission (name subsequently changed to Human Rights Tribunal of Ontario) (“HRTO”).
Two Complaints to the HRTO
[7] The first application to the HRTO was commenced in April 2005, just as the plaintiff was completing her final year of law school but prior to this action being commenced in June 2005. The complaint is based on discrimination because of physical disability against the same defendants in this action. The HRTO dismissed the application on the grounds that the complaint was barred as it was filed outside the limitation period. After she had commenced this action, the plaintiff made several unsuccessful attempts to appeal the HRTO decision by a request for reconsideration to the HRTO, application for judicial review to the Divisional Court, and ultimately failing to obtain leave to appeal to the Court of Appeal in October 2008.
[8] The second application made against the University was commenced in December 2008, approximately two months after she failed to obtain leave to appeal the first HRTO decision to the Court of Appeal, and approximately three and one half years after this action was commenced in June 2005. This complaint raised similar allegations to those in this action and in the first application based on discrimination on the grounds of a disability. However, in the application she pled additional facts which arose from her dismissal from the law firm where she was articling regarding her law school transcript and the fact that it sets out her 1999-2000 year in Law 1. In November 2010, the HRTO dismissed the application on the basis that s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) prohibits the bringing of an application before the Tribunal if there is a concurrent civil proceeding for essentially the same relief. The plaintiff appealed this decision. The Tribunal refused to reconsider its decision in October 2011. In May 2012, the plaintiff filed an application for judicial review to the Divisional Court which had not been heard by the date of the hearing of this motion.
[9] The plaintiff commenced this action in Toronto where she resides on June 8, 2005 by issuance of a notice of action. The statement of claim was amended twice with the final amendment dated January 15, 2006. The amended statement of defence is dated January 27, 2006.
[10] No steps have been taken beyond the pleadings other than three motions; two brought by the plaintiff and one by the defendants, as well as delivery by the University of its unsworn affidavit of documents and production of its schedule “A” document.
First Motion: Plaintiff’s motion for interlocutory injunction
May 29, 2006 – October 2006
No Cost Order
[11] The plaintiff sought an interlocutory injunction to force the University to delete her 1999-2000 academic year from her transcript. Herman J. dismissed the motion on May 31, 2006 stating the following at paras. 28 and 29 of the Endorsement:
This is not, in my opinion, an appropriate case in which to grant an injunction. My conclusion is based primarily on two factors. The first is that the granting of the injunction would provide Ms. Visic with the final relief that she is seeking. I am not satisfied, on the basis of the evidence before me, that Ms. Visic has established a strong case that the University failed to accommodate her nor that there has been a misrepresentation on her transcript.
Secondly, the deletion of information from a university transcript is a serious matter. As is noted, both the academic community and third parties rely on the accuracy and reliability of university transcripts. A court should not order the alteration of an academic transcript by way of an interlocutory injunction in the absence of strong evidence.[^1]
[12] The plaintiff was refused leave to appeal that decision on October 27, 2006, with costs reserved to the trial judge.
Second motion: Defendants’ change of venue motion (“venue motion”)
September 19, 2006 – September 2010
FIRST COST ORDER
[13] The defendants sought to have the action transferred from Toronto to Windsor. The plaintiff opposed the motion. Wilson J. granted the motion, without costs, on the condition that the defendants file an undertaking regarding payment of the plaintiff’s costs to attend in Windsor for this proceeding. Both parties obtained leave to appeal this order (“venue order”). On June 7, 2007, the Divisional Court dismissed the plaintiff’s appeal of the venue order and varied the order with respect to the defendants’ undertaking. No costs orders were made on the leave to appeal or the appeal.
[14] The plaintiff sought leave to appeal the Divisional Court venue order to the Ontario Court of Appeal. On April 4, 2008, the Court of Appeal granted leave to appeal on the single issue of whether the motion judge was entitled to impose the condition that the defendants pay the plaintiff’s reasonable transportation and accommodate costs in any event of the cause (“undertaking issue”). On October 23, 2008, the Court of Appeal dismissed the plaintiff’s appeal and declined to make an award as to costs, stating the following:
We see no basis for interfering with Divisional Court’s order modifying the motion judge’s order imposing a condition relating to transportation and accommodation costs of the appellant when she travels to Windsor for these proceedings. The modification simply puts in place a mechanism for judicial review of expenses incurred by the appellant, rather than leave those expenses open-ended and unreviewable.[^2]
[15] The plaintiff sought leave to appeal the Ontario Court of Appeal’s decision to the Supreme Court of Canada which was refused on September 8, 2009 with costs to the defendants of $1,203.09. To the date of the hearing of this motion the plaintiff has not paid this cost order.
[16] Approximately one year after the Supreme Court of Canada refused the plaintiff leave, in September 2010, the defendants complied with the venue order by filing the undertaking with the court whereby the University would pay the plaintiff’s reasonable transportation and accommodation costs for her attendances in Windsor relating to this action subject to any further order as to reimbursement.
Third motion: Plaintiff’s motion for various relief (“Discontinuance Motion”)
July 2010 – August 2011
SECOND, THIRD AND FOURTH COSTS ORDERS
[17] The plaintiff brought a motion seeking a variety of relief including an order discontinuing this action on certain terms, an order amending the amended amended statement of claim, an order for summary judgment and an order for a partial publication ban to eliminate her personal facts. The plaintiff brought this motion in Toronto because the defendants had not complied with the venue order by filing their undertaking, although the appeal process of the venue order had been completed in September 2009. The defendants took no issue with the venue of this motion.
[18] Due to time restrictions, and on consent of the parties, Wilson J. was only able to deal with the discontinuance motion.[^3] Wilson J. adjourned the motion sine die pending the release of the HRTO’s decision on the preliminary issue of whether the plaintiff was prohibited from bringing her application. The order also provided that if the plaintiff wished to proceed with her motion following the receipt of the HRTO’s decision, she could do so by notifying counsel for the defendants of her intention in writing within ten days of the date the decision was released.[^4]
[19] In analyzing the merits of the motion, Wilson J. specifically referred to s. 34(11) of the Code which prohibits the bringing of an application before the Tribunal if there is a concurrent civil proceeding for essentially the same relief, and found that this language was clear.[^5] Justice Wilson essentially chided the plaintiff for commencing the duplicate proceedings and for bringing this motion. She stated the following:
It is obvious that the intention of the legislation was to prevent duplication of proceedings between the courts and administrative tribunals. Ms. Visic conceded that the application and the civil action seek essentially the same relief and concern the same facts. The plaintiff instituted the civil action in 2005 and the Tribunal application in 2008, although it was not transferred to the appropriate body until December 2009. It is unclear why, in that time frame, the Plaintiff failed to make a determination as to which course she wished to proceed: the courts or the Tribunal. Apart from the appeals of the various interlocutory orders, the civil action has not advanced at all. No documentary disclosure has been exchanged and no examinations for discovery have been held.
The Plaintiff provided written submissions and attended at the hearing in April 2010 and was aware that the defendants objected to both matters proceeding, in light of the requirements of section 34(11) of the Code. I fail to see how the plaintiff’s motion today for a discontinuance could have any effect whatsoever on the outcome of the Tribunal decision. In response to my questions, Ms. Visic conceded that the adjudicator will make his or her determination on the applications based on the documentation submitted and the oral arguments made at the April 20, 2010 attendance. Even if I were to accede to the Plaintiff’s arguments (which I do not), in my view, it would have no effect on the decision of the Tribunal adjudicator which is currently under reserve.
This action has been on-going for more than 5 years with virtually no progress—in short, the Plaintiff has done nothing to move the action forward. Instead, she has brought motions and exhausted every appeal route available to her with little, if any, success. She admitted that she has not paid cost orders that have been made against her. While she is self-represented, she is in a different situation than other individuals who appear before this Court without legal representation because she has had the benefit of a legal education, having graduated with her Bachelor of Laws degree from the University of Windsor in June 2005. She cannot be viewed as ignorant of the law and indeed, her submissions to me were articulate and she quoted from the law frequently.
The correspondence makes it abundantly clear that the Plaintiff was aware well in advance of the hearing date of the preliminary issues in the application before the Tribunal that the defendants were objecting to her non-compliance with section 34(11) of the Code, yet she failed to take any steps to remedy this problem. She wishes to discontinue the civil action on her own terms, in order to preserve her rights to pursue whatever remedies are available to her. In my view, such conduct is unfair to the Defendants, in particular, the individual defendants, all of whom were employees of the University at the time the issues giving rise to this action arose. I am mindful, at the same time, that if the civil action is dismissed and the Tribunal refuses to proceed with the application, the Plaintiff would be placed in an untenable position.
I agree with the submissions of counsel for the defendants that this motion is premature and that it ought to have been adjourned on a consent basis pending receipt of the decision from the Tribunal. There is absolutely no urgency to it, as submitted by the Plaintiff. Depending on the Tribunal decision, the entire motion might be unnecessary or alternatively, if the civil action is to proceed, a mutually agreeable date for the hearing of the entire motion could have been secured or perhaps a timetable for the action moving forward could have been worked out between the parties. Unfortunately, the Plaintiff refused to proceed in that fashion and insisted on arguing the motion before me today.[^6]
[20] In a separate endorsement on costs dated August 12, 2010, Wilson J. awarded the defendants costs of the hearing of the discontinuance motion of $2,500 payable within 30 days of the release of the reasons. It was further ordered that if the cost order was not paid within the allotted time, “the plaintiff is prohibited from taking a further step in this litigation” (“probation order”). In her reasons, Wilson J. again explained her disdain of the plaintiff’s actions:
This action has a long history which was set out in my reasons dated July 23, 2010. Briefly, the action was commenced in 2005, more than 5 years ago, with the plaintiff claiming several grounds of relief, most notably a permanent injunction restraining the defendant from displaying her transcript from law school for the academic year 1999-2000. The Statement of Claim has been amended twice but virtually no progress has been made in the lawsuit. Examinations for Discovery have not been held. The most significant event that has transpired was a motion launched by the defendants in 2006 to transfer the action from Toronto to Windsor, which was successful. The plaintiff appealed this order to every court in the province and sought leave to appeal it further to the Supreme Court of Canada, which was unsuccessful.
The plaintiff decided to proceed with a complaint to the Human Rights Commission in 2008, dealing with essentially the same facts as the civil action. A hearing was held before the Tribunal in April 20, 2010 dealing with the request of the defendants to dismiss it as it was filed outside the limitation period and further, on the basis that the plaintiff had already commenced a civil action for identical relief. That decision is still pending.
It is clear and Ms. Visic acknowledges that the legislation prohibits the bringing of an application before the Tribunal if there is a concurrent civil proceeding for essentially the same relief and that is what prompted her motion for an order to discontinue the action on her own terms.
The launching of the Plaintiff’s motion at a time when the decision of the Tribunal was pending was ill conceived. . . .
I reject the plaintiff’s submission that it would be inappropriate and unfair for an award of costs to be made against her. Ms. Visic brought this motion in order to strengthen her case at the Tribunal, although given the timing of the motion it is difficult to conceive of how this motion would have any effect on the outcome of the Tribunal hearing. . . .[^7]
[21] In fixing the costs of the motion at $2,500 and prohibiting the plaintiff from taking a further step in this action if not paid, Wilson J. reasoned that the amount was less than a quarter of the fees actually expended in responding to the motion and further stated:
I am troubled by the fact that there have been 3 different costs orders made against Ms. Visic totalling in excess of $3,000.00, which she admitted to me remain unpaid. She appears to be of the mistaken belief that she can take whatever steps she wishes to in a lawsuit with impunity, relying on the fact that she does not have the benefit of a lawyer. . . .
A review of the history of this action reveals that the defendants, which include three individuals who were employees of the University at the material time, have been forced to respond to the Plaintiff’s motions and appeals of unfavourable decisions, incurring legal fees with apparently no recourse from Ms. Visic who ignores the costs orders made by the Court. In my opinion, this is unfair to the defendants and cannot be condoned by this Court.[^8]
[22] Wilson J. concluded her endorsement on costs with the following words: “If the Plaintiff is serious about pursuing this lawsuit, she must comply with orders of this court and other levels of court in this province.”[^9]
[23] To the date of the hearing of this motion, the plaintiff has not paid Wilson J.’s cost order.
[24] Despite the harsh words of Wilson J., the plaintiff continued by appealing to the Divisional Court both orders of Wilson J., without success, with costs awarded to the defendants of $1,000. This cost order also remains unpaid.
[25] Thereafter in August 2011, the plaintiff sought leave to appeal the Divisional Court order to the Ontario Court of Appeal which was also denied with costs awarded to the defendants of $1,000. This cost order remains unpaid.
Mandatory Mediation and Case Conferences: January 2011 to September 2011
[26] In the midst of the plaintiff’s leave to appeal motions, the Mediation Coordinator issued an assignment of mediator to this action on January 12, 2011 as a mediator’s report had not been filed with the court and the action required mediation as provided in rule 24.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The mediator did not proceed and the assigned mediator filed with the court a Certificate of Non-Compliance on April 11, 2011 which states essentially that the scheduled mediation did not proceed due to the plaintiff’s inaction. Specifically, the mediator stated that the certificate was filed because the plaintiff had not provided him or the defendants with her statement of issues prior to the scheduled mediation date, he had not received an order extending the timeline to mediate beyond April 22, 2011, nor had he received the defendants’ consent to change the scheduled mediation date.
[27] When the Certificate of Non-Compliance was filed, the court scheduled a case conference pursuant to rules 24.1.13(1) and 77.08(1) for May 30, 2011 and gave notice in writing to all parties. The plaintiff did not attend that case conference having advised the court by letter dated May 15, 2011 that she was unable to attend due to a prior commitment and requested that the case conference be rescheduled to June 20, 2011. However, prior to the case conference, the plaintiff did not seek the defendants’ consent to adjourn it to June 20 and as a result, counsel for the defendants attended on May 30, 2011 objecting to the adjournment. I adjourned the case conference to June 20, 2011 as requested by the plaintiff in her letter and adjourned the issue of costs against the plaintiff for the defendants’ costs thrown away for that attendance when I would hear submissions.
[28] At the case conference on June 20, 2011, the defendants sought costs of $250 for the attendance on May 30 which was opposed by the plaintiff. Ultimately, I ordered costs to the defendants of $250 payable within 60 days. The plaintiff has paid that cost order. Given that the Divisional Court had not rendered its decision on the plaintiff’s appeal of the orders of Wilson J., and the pending decision of the Tribunal, I ordered that the case conference was to be continued on September 2, 2011. I further ordered that this action be assigned to case management under Rule 77.
[29] By the next case conference on September 2, 2011, Wilson J. had rendered her decisions which included the prohibition order. As the plaintiff stated that she had not paid that cost order, I made no further orders, in particular regarding timelines to complete the steps in this action as requested by the plaintiff.
Plaintiff’s Attempt to Proceed with Discontinuance Motion
September 2011 – January 2012
FIFTH COST ORDER
[30] On September 2, 2011, immediately after the Ontario Court of Appeal refused the plaintiff leave to appeal the Divisional Court’s decision upholding the adjournment, and cost order and prohibition order of Wilson J., the plaintiff gave notice to counsel for the defendants that she intended on proceeding with her discontinuance motion for “most or all of the relief set out in the notice of motion”.[^10] Not only did the plaintiff fail to state the specific relief in her motion that she intended to seek, incredibly, she further failed to recognize Wilson J.’s prohibition order (upheld by the Divisional Court and the Ontario Court of Appeal). In subsequent correspondence in October 2011, the plaintiff acknowledged the defendants’ position based on Wilson J.’s prohibition order, and stated that she had not paid the cost order because of her impecuniosity. It was her position that she was giving written notice to the defendants of her intention to proceed with the discontinuance motion as ordered by Wilson J.; however, since the Tribunal had not rendered its decision, she was not in a position to schedule the discontinuance motion. Again, the plaintiff fails to recognize or perceive the effect of the prohibition order.
[31] Early January 2012, the plaintiff advised the defendants that she would be attending Motions Scheduling Court in Toronto on January 17, 2012 to schedule her discontinuance motion (adjourned by Wilson J. on July 23, 2010 pending release of the Tribunal’s decision on the preliminary issue of duplicate proceedings). The plaintiff insisted on attending at court in Toronto notwithstanding that this action had been transferred to Windsor, further that she had not complied with Wilson J.’s cost order and in the face of Wilson J.’s prohibition order and, lastly, with knowledge that the defendant had complied with the venue order and had filed the requisite undertaking.
[32] In response, the defendants scheduled an emergency case conference in Windsor on January 13, 2012 to address the plaintiff’s notice to resume the discontinuance motion. The plaintiff did not attend the case conference having advised counsel for the defendants previously that she was not available. I did not proceed with the case conference given the plaintiff’s inability to attend and the short notice; however, having heard from defence counsel the reason for scheduling the case conference, I noted in my endorsement that it was my understanding that the plaintiff required leave of the court to proceed with her discontinuance motion, firstly in Toronto, and secondly, because of Wilson J.’s cost and prohibition orders. I emphasized in my endorsement that the plaintiff faced further cost orders if leave was not obtained.[^11]
[33] Despite the above, the plaintiff attended at Motions Scheduling Court in Toronto on January 17, 2012. Low J. refused to schedule the motion and endorsed the record that the attendance was an abuse of process as the action had been transferred to Windsor, and further, because of an unpaid cost order, the plaintiff was precluded from taking further steps. Low J. ordered the plaintiff to pay costs of $2,000 payable in 30 days. The plaintiff had not paid that cost order by the hearing of this motion.
This motion to dismiss action for failure to pay cost orders: Rules 57.03(2) and 60.12
[34] Rule 60.12 is a general rule regarding failure to comply with an interlocutory order. It provides that where a party fails to comply with an interlocutory order, the court may in addition to any other sanction provided by the rules, stay the party’s proceeding, dismiss the party’s proceeding or make such other order as is just.
[35] Rule 57.03 is a more specific rule regarding costs of a motion and failure to pay. Subrule (2) provides that the court may dismiss or stay a party’s proceeding or make any other order as is just where the party fails to pay the costs of a motion.
[36] The following is a list of the costs orders made against the plaintiff throughout this action which total $7,703.09 and remain unpaid:
a) Registrar of the Supreme Court of Canada in the sum of $1,203.09 dated September 8, 2009;
b) Honourable Madam Justice Wilson in the sum of $2,500 dated August 12, 2010 payable within 30 days, including the prohibition order;
c) Divisional Court in the sum of $1,000 dated March 22, 2011;
d) Ontario Court of Appeal in the sum of $1,000 dated August 17, 2011;
e) Honourable Justice Low in the sum of $2,000 dated January 17, 2012, payable within 30 days.
Impecuniosity
[37] The plaintiff’s position is that she is unable to pay the prior cost orders because she is impecunious. Essentially, she asks this court to make a finding on this motion that she is impecunious which would absolve her from having to pay all the prior cost orders. There are several weaknesses in this position including the obvious that this court is being asked to set aside prior orders of not only this level of court, but of the three appeal levels including the Supreme Court of Canada. This court, and particularly the position of a master, does not have the jurisdiction to ignore, or essentially set aside, all prior cost orders and particularly Wilson J.’s cost and prohibition orders, as well as Low J.’s cost order, both of which set deadlines of 30 days for payment. Those deadlines have well passed. Secondly, the plaintiff would have had the opportunity to make submissions on her ability to pay costs at each motion or appeal and at no time did any of those courts make a finding that she was impecunious and unable to pay a costs order.
[38] The following is a summary of the plaintiff’s evidence on the issue of impecuniosity.
[39] She resides and is employed in Toronto. Her evidence provides a history of employment from the time she completed the academic portion of the bar admission course in September 2005. She had a temporary one-year employment contract from October 2005 to September 2006 followed by a month on social assistance then employment insurance until November 2006. Starting in November 2006 she had a ten-month employment contract earning a salary of $28,000. From April to July 2007 she started the articling phase of the bar admission course with one law firm, then went to another firm to complete her articling. However, she was terminated from the second law firm on November 28, 2007 over the issue of her transcripts. She was employed thereafter but, she states, the jobs were not in positions commensurate with her education. She was employed at the time she swore her affidavit on June 25, 2012;[^12] however, she provided no information regarding her current income. She did not file any income tax returns, pay stubs, records of employment or a financial statement regarding her assets and debts.
[40] She was evicted from two apartments for failure to pay rent, the most recent in June 2011. She states that she is barely meeting her monthly basic living expenses such as rent, bills, metropass, food, clothing and medical costs, not including her student loans, other debts and costs associated with this proceeding. Her evidence is outdated regarding her living expenses as she relies on her affidavit sworn January 29, 2007 filed on the venue motion, where she stated that her monthly basic living expenses at that time were approximately $1,700. Her evidence is that she has no assets. However, as stated above, the plaintiff did not file any supporting documents regarding her financial status, other than her student loans, which ought to have been readily available to her.
[41] There is evidence of unpaid student loans and employment insurance as of February 2012 of $39,101.33 and it is the plaintiff’s evidence that she has been unable to service her student loans. However, I pause to note an apparent inconsistency in the plaintiff’s evidence regarding her loans. In the Reasons For Judgment of the Divisional Court dated June 7, 2007, on appeal from the order of Wilson J. dated September 16, 2006 granting a change of venue of this action, the court stated at para. 9 the following “. . . that evidence showed that the plaintiff had over $85,000 in outstanding loans, which she was unable to service satisfactorily” (my emphasis). The plaintiff’s evidence on this motion is that her unpaid student loans and employment insurance as of February 2012 was $39,101.33; whereas, the evidence before the court on the venue motion in September 2006 was that she had over $85,000 in outstanding loans. Although all of the material that was filed on the venue motion is not before this court, the plaintiff did file her affidavit sworn January 29, 2007, filed in response to the defendant’s venue motion. In submissions, counsel for the defendants pointed out that there appears to be an overlap in the student loan statements such that the outstanding balance on March 1, 2006 was approximately $44,905 which may not include the outstanding account of the Ministry of Training, Colleges & Universities of $4,059 and the account of the University of Windsor of $570. I agree with the defendants and I therefore find based on the evidence filed on this motion that the plaintiff had outstanding loans of between $44,900 to $49,500 in March 2006 at the time of the venue motion. The balance of those loans of February 2012 was $39,101.33. The plaintiff has not explained whether she paid the account of the Ministry of Training, Colleges & Universities of $4,059 or the University of Windsor.
[42] In support of her contention that she is impecunious, the plaintiff states that the Divisional Court in 2007 determined that she was impecunious. She relies on the Reasons For Judgment dated June 7, 2007 for that contention. (The Divisional Court upheld Wilson J.’s change of venue order and required the defendants to file an undertaking to pay her reasonable expenses to attend in Windsor for steps in this proceeding). The Divisional Court stated:
The university submitted that there was inadequate evidence to support the finding that the plaintiff was impecunious. She was employed, albeit at a low rate of pay not commensurate with her education, and the evidence as to her loans was insufficient. But that evidence showed that the plaintiff had over $85,000 in outstanding loans, which she was unable to service satisfactorily. It appeared that she had recently been evicted for non-payment of rent. There was certainly a foundation in the evidence for the judge’s finding.[^13]
[43] I reject the plaintiff’s argument that the Divisional Court determined her impecuniosity. Both Wilson J. and the panel of the Divisional Court considered, in the context of the change of venue motion, the financial effect on the plaintiff of transferring the action to Windsor from Toronto. On a change of venue motion, the court is required to consider the convenience of the plaintiff (my emphasis) (rule 13.01(2)(b)(v)). Wilson J.’s finding, that the defendants were required to file an undertaking to pay the plaintiff’s reasonable costs of attending in Windsor, was based on the following: “[T]he plaintiff is in financial need, but the condition imposed upon the defendants to pay the reasonable costs of travel and accommodation overcomes this factor”.[^14] I believe that the plaintiff has confused the findings of the court and interpreted them to mean the court found she was impecunious. This is not so. The reference to “financial need” addresses only the issue of convenience to the plaintiff if the action were to be transferred to Windsor.
[44] Therefore, I find that none of the courts that made costs orders made findings that the plaintiff was impecunious. If they had done so, it is reasonable to assume that they would not have made costs orders.
Case Law
[45] In Baksh v. Sun Media (Toronto) Corp. 2003 64288 (ON SC), [2003] O.J. No. 68 (S.C.J.), the master dismissed the action for failure to pay four costs orders and an order for security for costs despite a number of indulgences and extensions granted. The plaintiff in that action was a lawyer who practiced primarily in criminal law. He commenced the action in May 2001 for defamation based on articles published in Toronto Sun newspaper respecting criminal charges against him. He was represented by counsel until July 2002 and was self-represented thereafter. Examinations for discovery were conducted; however, the plaintiff failed to comply with his undertakings. As a result of several motions, case conferences and an appeal by the plaintiff, costs orders were made against him which provided for short timelines to pay. At an earlier motion to dismiss the action for failure to pay the costs orders, the master gave the plaintiff one further opportunity to pay by ordering that the action was stayed for approximately five months until the costs orders were paid, including the costs of that motion, and further ordered the plaintiff to pay into court security for costs. The master further ordered that the action would be dismissed by motion on notice if he did not comply. The deadline passed and the plaintiff had not complied with the master’s orders. At a subsequent motion to dismiss the action, the plaintiff claimed that he was impecunious. The master noted that the plaintiff did not offer his tax returns or a financial statement to demonstrate his income, assets and debts, nor did he give evidence of any efforts to comply with the court orders. As such the master held that the plaintiff failed to satisfy him with any cogent evidence that he lacked the ability to pay the costs or security for costs orders.
[46] In his decision, the master referenced similarities with the decision of Nordheimer J. in Bottan v. Vroom, [2001] O.J. No. 2737 (S.C.J.), appeal dismissed [2002] O.J. No. 1383 (C.A.). The plaintiffs sought an extension of time to pay a security for costs order until after the hearing of a summary judgment motion. Nordheimer J. had doubts about the legitimacy of the claims of impecuniosity, but determined that even if he were to accept the claim, there was no authority permitting a judge to relieve against another judge’s order that costs be paid forthwith. He stated that to do so would be tantamount to sitting on an appeal of such order. He further found that arguing for payment at a later date would constitute a collateral attack on costs orders previously argued and determined (Baksh, at para. 15).
[47] Nordheimer J. went on to quote with approval from R. v. Briggs (2001), 2001 24042 (ON CA), 53 O.R. (3d) 124 (C.A.), that: “If this court’s rules are to be taken seriously by anybody, they must be enforced,” and from Household Trust Co. v. Golden Horse Farms Inc. (1992), 1992 420 (BC CA), 65 B.C.L.R. (2d) 355 (C.A.): “The court if it fails to act becomes but a paper tiger.” He further held that the rationale for rules 57.03 and 60.12 were:
[P]redicated on the fact that there will be situations where a party’s position ought to be determined for procedural reasons arising from the failure of that party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these [rules]” (Baksh, at para. 16).
[48] In Burrell v. Peel (Regional Municipality) Police Services Board, [2007] O.J. No. 4232, Master Dash made a number of orders that culminated in the dismissal of the action, upheld on appeal. Each appeal court made notable comments and findings regarding a plaintiff’s claim of impecuniosity for the basis of not paying prior costs orders. On the third motion brought by the defendant to dismiss the action for failure to pay two costs orders and after staying the action for six months to permit the plaintiff time to pay the first cost award, Master Dash dismissed the action. Before the third motion was brought, the plaintiff appealed the interlocutory orders of Master Dash. J.E. Kelly J. upheld the master’s orders having found that the master had considered the appellant’s financial circumstances throughout the proceedings and before awarding costs against her. In his reasons, Kelly J. found that: “impecuniosity does not excuse a party from disobeying Court Orders. A dismissal of the action and/or a stay of the action is appropriate where the Court is satisfied that a litigant has consistently failed to behave as a responsible litigant.” (Burrell v. Peel (Regional Municipality) Police Services Board, [2008] O.J. No. 5718, at para. 10 (v. and vi.)).
[49] The plaintiff in Burrell appealed the master’s dismissal order. In upholding the master’s decision, Swinton J. found that the master was conscious throughout the proceedings that the “appellant was a person of very limited means” but that the appellant’s initial breach of the undertakings order was not the result of her impecuniosity. Swinton J. further cited with approval the statement of the court in Christian Jew Foundation v. Christian Jew Outreach, [2007] O.J. No. 2140 (S.C.J.), at para. 69, that “impecuniosity is not a shield where a party has consistently failed to act reasonably.”
[50] In Ross v. Charlottetown (City), 2008 PESCAD 6, [2008] P.E.I.J. No. 23 (Appeal Div.), the court of appeal upheld the lower court’s dismissal of the plaintiff’s action because of his repeated failure to pay costs made against him on five unsuccessful interlocutory motions and appeals that totalled $5,150. The action had been commenced over six years since the appeal and no discoveries had been held. One of the interlocutory orders granted the plaintiff six months to pay the costs orders failing which the action would be dismissed. As he paid nothing, the dismissal order was made. The defendant did not dispute the plaintiff’s assertion that he was poor; however, it was held that he provided no proof. Notably, the court described impecuniosity as the “state of poverty, or of being poor or destitute, without funds or resources to meet one’s basic needs. It does not mean: a) a present lack of available funds, or b) one’s expenditures exceed one’s income.”
[51] The court in Ross at para.15, further referenced a similar case of Rasekhi-Nejad v. General Accident of Canada, [2004] O.J. No. 4225 (Ont. S.C.J.), where the master dismissed the action for failure to pay costs but allowed the plaintiff six months to seek a variation of the dismissal order. In stating that a dismissal order is one of last resort and a stay was generally more appropriate, Master Polika decided as follows:
Dismissal of an action is a decision of last resort, a final remedy. A stay of proceedings, depending on the applicable facts, generally is more appropriate. There however is a real consequence, which arises with a stay, that is, for how long should it be in place before the action is dismissed. Underlying any action, which does not move to trial promptly, is the concern that if a sufficient time goes by the trial will be surreal with a verdict based on fiction rather than facts as the evidence will come from witnesses who must recollect events which have long gone by. This is a real concern, as justice is not served by trying actions based on dimmed or faulty recollection.
This action is now five years old . . . [T]he plaintiff is impecunious and . . . there appears to be no prospect of the plaintiff obtaining the funds necessary to pay the outstanding cost orders. A stay of the action will likely prolong the inevitable. In addition it will further delay the trial and increase the prospect of a trial based on evidence from witnesses with dimmed memories and potentially faulty recollection of events long gone by.
[52] Ross provides guidance on the requirement that litigants are to act responsibly when it held that:
[O]ur costs rules do not discriminate against impecunious litigants. The “loser pays” principle works well for impecunious litigants, provided: 1) they only fight and win motions on pre-trial matters they clearly must fight and win in order to succeed on the main action; and 2) they concede all other motions, or better still, attempt to settle pre-trial issues as lawyers do every day. Too many self-represented litigants make the mistake of thinking they should fight every motion against them, as well as bringing their own motions for everything they seek pre-trial, and as a result are hit with expensive costs against them.
Mr. Ross seeks immunity for himself and presumably any other person who claims poverty from the consequences of failing to pay the legal costs awarded against litigants who are unsuccessful in pre-trial proceedings; he seeks the right to continue on to trial no matter how reckless, wrongheaded or ill-conceived his conduct in pre-trial proceedings. Should he ultimately lose the case after trial, his poverty makes him immune to costs orders. Thus, he seeks costs immunity throughout (paras. 27-28).
Motion to Dismiss for Delay: Rule 24.01
[53] Pursuant to rule 24.01 a defendant may move to have the action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings.
[54] The principles to be applied on a motion to dismiss for delay are well established as affirmed by the Divisional Court in Woodheath Developments Ltd. v. Goldman (2003), 2003 46735 (ON SCDC), 66 O.R. (3d) 731, where Then J. upheld the order of Master Dash dismissing the action for delay. The applicable principles are as follows:
The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted, then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice (para. 4).
[55] The grounds for the defendants’ motion are that the action was commenced over seven years ago and has made little progress. The plaintiff has not served an affidavit of documents, scheduled examinations for discovery or failed to set the action down for trial. Further, the named personal defendants have since retired from the University. They contend that the personal defendants will be required to recall details from events and communications that occurred over seven years ago.
[56] The plaintiff submits that she has been diligent in taking proper steps in this action. She further submits that by the time the defendants’ change of venue motion and the appeal process was completed in March 2009, she had filed a new application with the Human Rights Tribunal. She further argues that the defendants contributed to the delay between March 2009 and September 2010 by failing to file the undertaking with the court to pay her reasonable costs to attend court in Windsor. She further submits that she took proper steps by bringing her discontinuance motion including relief to withdraw this action “on terms.” She states that the motion was heard in part only. The plaintiff fails to state that her discontinuance motion was adjourned by Wilson J. pending release of the HRTO’s decision and ordered costs against her payable within 30 days with a prohibition from taking a further step in the action until the costs were paid.
[57] I reject the plaintiff’s assertion that the defendants contributed to the delay between March 2009 and September 2010. The fact that the defendants did not file the undertaking in a timely fashion did not prevent the plaintiff from bringing her discontinuance motion. In fact, she brought the motion in any event, in Toronto, and the defendants took no issue with the venue of the motion.
[58] The plaintiff further asserts that the defendants caused further delay by refusing to consent to a case conference to establish a timetable, in particular regarding her discontinuance motion. I also reject this submission given Wilson J.’s cost and production orders.
[59] The plaintiff further asserts that the reason for the delay is explained by the fact of the duplicate proceedings and the new issues of discrimination claimed by her with respect to the termination from her articling position which, she alleged, was due to the University displaying her 1999-2000 year on her transcript. I reject this submission for several reasons. Firstly, the plaintiff has a positive duty to prosecute this action diligently and to take all reasonable steps to move it ahead to trial as expeditiously as possible. Secondly, the fact of her application to the HRTO ought not to have delayed this action. One is not contingent on the other. Thirdly, the HRTO ruled that her application was barred as being contrary to s. 34.1 of the Code prohibiting duplicate proceedings. Lastly, the defendants have no obligation to sit and wait until the plaintiff canvasses all avenues that she feels are available to her while at the same time incurring costs to defend unnecessary motions and appeals.
[60] Further, she contends that the defendants have contributed to the delay by refusing to consent to her discontinuance motion which, she states, would have been resolved by now and would have been the fastest and most cost effective resolution of the matter. However, for the reasons stated by Wilson J., the defendants were not prepared to consent to the discontinuance of this action on the plaintiff’s terms while she awaited the decision of the HRTO.
[61] The plaintiff submits that the defendants are in default in this action as the personal defendants have not delivered an affidavit of documents. The defendants argue that the University delivered an affidavit of documents which contains all documents that the defendants believe may be relevant to the claim and that since this action was commenced, all the personal defendants have retired from the University. I will address this issue below.
[62] The plaintiff relies on several cases including Finlayson Enterprise Ltd. v. Mallette, 2006 1325 (ONSC), where the court dismissed the defendant’s motion to dismiss the action for delay. The court concluded that the fault for most of the nine year delay was with the plaintiff’s solicitor; however, the delay was not intentional and the delay did not give rise to a substantial risk that a fair trial of the issue was not possible.
Conclusion
Motion to dismiss: Rule 57.03(2) and 60.12
[63] As stated above, in Ross the court described impecuniosity as the “state of poverty, or of being poor or destitute, without funds or resources to meet one’s basic needs. It does not mean: a) a present lack of available funds, or b) one’s expenditures exceed one’s income.”
[64] I am unable to find that the plaintiff is impecunious based on the evidence. Some of her evidence is outdated. She has not provided evidence of her income for the past several years, income tax returns, notices of assessment, current income, or a financial statement setting out her assets and debts. Undoubtedly, these documents would have been in her possession. Nor is there any evidence of her ability or attempts to borrow the money to pay the cost orders of approximately $7,700. This amount is not exorbitant. It is common knowledge that litigants often find themselves borrowing money to pay for the costs of litigation. The plaintiff’s evidence fails to address this option.
[65] I do not question that the plaintiff struggled financially while she was in law school and likely for some time following the completion of her law degree in 2005. I also do not question that she has unpaid student loans. However, it is the plaintiff’s onus to place adequate and complete evidence before the court on the issue of impecuniosity and she has failed to do so for the above reasons.
[66] I concur with the reasoning of Nordheimer J. in Bottan that even if I were to accept the claim of impecuniosity, there is no authority permitting a master, or a judge, to relieve against another judge’s order that costs be paid within 30 days or the prohibition order. I concur that to do so would be tantamount to sitting on an appeal of such order.
[67] Put simply, the plaintiff faces a monumental task by asking this court in 2012 to find that she is impecunious and is unable to pay five cost orders dating back to 2009 based on the sketchy evidence she has placed before this court. In my view, for the above reasons, she has failed to satisfy this court of her impecuniosity.
[68] Furthermore, it is my view that the plaintiff took unnecessary and unreasonable steps by appealing numerous orders of this court with little chance of success and proceeded to do so knowing the risk. As a result, as we can see, numerous costs orders were made against her. I can find no better words to describe the plaintiff’s misguided steps in this action and failure to advance this action in a responsible way than those of Wilson J. in her endorsement of July 22, 2010 when she stated:
This action has been on-going for more than 5 years with virtually no progress—in short, the plaintiff has done nothing to move the action forward. Instead, she has brought motions and exhausted every appeal route available to her with little, if any, success. She admitted that she has not paid cost orders that have been made against her. While she is self-represented, she is in a different situation than other individuals who appear before this Court without legal representation because she has had the benefit of a legal education, having graduated with her Bachelor of Laws degree from the University of Windsor in June 2005. She cannot be viewed as ignorant of the law . . .
I agree with the submissions of counsel for the defendants that this motion is premature and that it ought to have been adjourned on a consent basis pending receipt of the decision from the Tribunal. . . . Unfortunately, the Plaintiff refused to proceed in that fashion and insisted on arguing the motion before me today.
[69] Further, Wilson J. stated the following in a separate endorsement on costs dated August 12, 2010:
The Statement of Claim has been amended twice but virtually no progress has been made in the lawsuit. Examinations for Discovery have not been held. The most significant event that has transpired was a motion launched by the defendants in 2006 to transfer the action from Toronto to Windsor, which was successful. The plaintiff appealed this order to every court in the province and sought leave to appeal it further to the Supreme Court of Canada, which was unsuccessful.
The launching of the Plaintiff’s motion at a time when the decision of the Tribunal was pending was ill conceived . . . .
I reject the plaintiff’s submission that it would be inappropriate and unfair for an award of costs to be made against her. Ms. Visic brought this motion in order to strengthen her case at the Tribunal, although given the timing of the motion it is difficult to conceive of how this motion would have any effect on the outcome of the Tribunal hearing . . . .
I am troubled by the fact that there have been 3 different costs orders made against Ms. Visic totalling in excess of $3,000.00, which she admitted to me remain unpaid. She appears to be of the mistaken belief that she can take whatever steps she wishes to in a lawsuit with impunity, relying on the fact that she does not have the benefit of a lawyer. . . .
. . . Ms. Visic who ignores the costs orders made by the Court. In my opinion this is unfair to the defendants and cannot be condoned by this Court.
If the Plaintiff is serious about pursuing this lawsuit, she must comply with orders of this court and other levels of court in this province.
[70] The rationale for rules 57.03 and 60.12 are, as stated by Nordheimer J. in Bottan:
[P]redicated on the fact that there will be situations where a party’s position ought to be determined for procedural reasons arising from the failure of that party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these [rules] (Baksh, at para. 16).
[71] The plaintiff does not request additional time to pay the cost orders. She simply states that she cannot pay them because she is impecunious. It is questionable then why she persisted in appealing numerous orders with impunity when she knew the risk of being ordered to pay the defendants’ costs if she failed, and knowing that she had no intention of paying a cost order. Following the cost order of the Supreme Court of Canada in September 2009, Wilson J., in August 2010, thought that she had put a stop to the plaintiff’s actions by making the cost and prohibition orders. Sadly, that did not stop her. She appealed Wilson J.’s decisions to two levels of court, with further cost orders against her, and then again another cost order of Low J. in January 2012 on the return of her discontinuance motion, in which he noted that the attendance was an abuse of process.
[72] The plaintiff has not obeyed the court orders, she has flagrantly ignored the rules by failing to take any steps to advance this action to trial and, lastly, she has not been a responsible litigant.
[73] For the above reasons, I would dismiss this action pursuant to rule 60.12(b).
Motion to dismiss for delay: Rule 24.01
[74] The plaintiff issued the statement of claim on July 8, 2005, more than seven years ago. It is alleged that the cause of action arose from the plaintiff being terminated from her articling position in late 2007. The statement of claim has been amended twice. The amended statement of defence is dated January 27, 2006. Importantly, the facts that form the basis of this action date back to 1999-2000, more than 13 years ago. There is no issue that the action was commenced within the two-year limitation period under the Limitations Act, 2002, R.S.O., 1990, c. L.15.
[75] The defendants move for an order to have the action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings on or about February 2006.
[76] No steps have been taken beyond the pleadings stage. The plaintiff has not delivered an affidavit of documents or made any documentary production. Discoveries have not been held. The plaintiff did not participate in mediation as evidenced by the Certificate of Non-Compliance filed by the assigned mediator and she did not reschedule the mediation session. Although the plaintiff requested a case conference, the request followed Wilson J.’s cost and prohibition orders. As such, the plaintiff was prohibited from requesting the case conference.
[77] The University’s evidence is that it delivered an affidavit of documents and made production of all relevant documents. In late 2006 the defendants brought and were successful with its motion to transfer the action from Toronto to Windsor.
[78] The plaintiff has brought two motions and launched countless appeals at each level of court in Ontario and Canada. There are five cost orders against her that total $7,703.09 dating from 2009 through 2012. Further, the plaintiff took steps regardless of Wilson J.’s cost and prohibition orders, including the return of her discontinuance order and a request for a case conference.
[79] In my view, I do not consider the motions and appeals made by the plaintiff in this action as steps that would move it to trial. Nor do I consider her application to the HRTO as a step that would move this action to trial. The plaintiff appears to be of the mistaken belief that the court should consider with favour the fact that she explored other avenues to resolve her disputes. Clearly, the HRTO has ruled that her application was barred due to the legislative prohibition against duplicate proceedings. Moreover, the fact that she explored other avenues is not an excuse to delay this action. The defendants have incurred significant costs to defend this action and her motions and appeals without payment of her failed attempts.
[80] I reject the plaintiff’s contention that the defendants have delayed this action. Notwithstanding that only the defendant, University, delivered an affidavit of documents, the defendants made documentary production of all relevant documents. Given the employer-employee relationship between the University and the personal defendants, and considering the evidence that the personal defendants have all retired from the University since this action was commenced, such a rigid application of the rules as suggested by the plaintiff, is not envisioned by rules 1.04(1), (1.1) and 2.01. Furthermore, the defendants were ready to mediate this action and they have been forced to defend every motion and appeals launched by the plaintiff.
[81] It cannot be said that the defendants herein either delayed this action or sat idly waiting for time to pass and did nothing to move the action on to completion. Most importantly, the action was effectively stayed by Wilson J’s prohibition order in August 2010. The defendants cannot be faulted for failing to take steps in this action after that time.
[82] In the end, it is my view that the plaintiff is the master of her own fate. Despite her legal training, she misguidedly commenced the HRTO application after she commenced this action, contrary to s. 34(11) of the Code which prohibits concurrent proceedings for essentially the same relief. While launching appeals of the Tribunal’s decisions, she tried desperately to keep this action alive. She wanted to keep all options open to her. That was the basis for her discontinuance motion and the defendants would not agree to discontinue on her terms, as noted by Wilson J.
[83] For the above reasons, I find that the delay in this action was intentional on the part of the plaintiff.
[84] The dictionary definition of “contumelious” means insolently abusive and humiliating. In my view, the steps taken by the plaintiff, in particular, following the cost and prohibition orders of Wilson, J. in 2010, were disrespectful and brazen.
[85] The plaintiff gave no evidence why she could not have taken steps to advance this action to trial. It is not an acceptable explanation to delay this action because she was awaiting the decision of the HRTO. As such, I find that the delay was inexcusable.
[86] On the issue of prejudice, I accept that the delay has caused prejudice to the defendants given the passage of time since the facts arose that gave rise to this action; namely, 1999-2000, some 13 years ago, and over seven years since the action was commenced. Upon review of the pleadings, the evidence at trial will include not only relevant documents, but testimony from the individual defendants, as well as witnesses from the University, based on their memories of meetings and communications. This, in my view, gives rise to a substantial risk that a fair trial may not now be possible. The plaintiff, on the other hand, submits that this action ought to be stayed pending the outcome of the HRTO proceeding and especially because the defendants sought a stay in the statement of defence. Although a stay was sought by the defendants, they have not taken any step by way of an interlocutory motion to seek this relief. There is no obligation on the defendants to sit back and wait for an indefinite period of time for the plaintiff to take whatever steps she chooses to have her complaint adjudicated in this action, or otherwise. In this action, the parties are required to follow the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, I find that the plaintiff has not rebutted the presumption of prejudice.
[87] I am cognizant that if this action is dismissed, and the Divisional Court upholds the Tribunal’s decision dismissing her complaint based on s. 34(11) of the Code prohibiting concurrent proceedings, neither the plaintiff’s claim in this action nor her complaint to HRTO will be determined on the merits. However, the harsh reality is that only the plaintiff can be blamed for the inordinate delay in this action and the flagrant disregard of court orders.
[88] In my view, and as stated by Nordheimer J. in Bottan, the history of this action is the epitome of a situation where the plaintiff’s position must be determined for procedural reasons that arise from her failure to abide by orders made by the court and her failure to behave as a responsible litigant. The prohibition order made by Wilson J. was made in August 2010 and remains in effect. I see no reason to stay this action to give the plaintiff more time to pay all of the costs orders. On the evidence, she has no intention of doing so and has not requested more time to do so.
[89] In conclusion, I find that the defendants have met their onus on the motion to dismiss for delay. Although the defendants are required to prove only one branch of the relevant principles on a motion to dismiss for delay, I am satisfied on both parts.
[90] In summary, I find that the plaintiff intentionally defaulted in taking steps to advance this action to trial, her actions were contumelious, and the delay was inexcusable which has given rise to a substantial risk that a fair trial may not be possible.
[91] Therefore, the defendants’ motion is granted and this action is hereby dismissed.
Costs
[92] The defendants are entitled to their costs of this motion and of the action. The defendants shall have 14 days from the date of this decision to serve and file with the trial coordinator’s office separate cost outlines of the action and the motion, as well as short submissions on costs of no more than two pages double spaced. The plaintiff shall have 14 days from the date of service of the defendants’ material to serve and file a response with the trial coordinator’s office of no more than two pages double spaced.
Original signed “Master Pope”
Master Lou Ann M. Pope
Date: April 10, 2013
[^1]: Endorsement of Herman J. dated May 31, 2006, paras. 28-29, at Exhibit “Q” to the Affidavit of Anica Visic sworn June 25, 2012.
[^2]: Appeal Book Endorsement of the Court of Appeal of Ontario dated October 23, 2008, para. 2, at Exhibit “G” to the Affidavit of Garth M. Kidd sworn May 18, 2012.
[^3]: Endorsement of Madam Justice Darla A. Wilson, July 22, 2010 at paras. 6-7, at Exhibit “BB” to the Affidavit of Anica Visic sworn June 25, 2012.
[^4]: Ibid. at para. 17.
[^5]: Ibid. at paras. 10-11.
[^6]: Ibid. at paras. 12-16.
[^7]: Order of the Honourable Justice D.A. Wilson dated August 12, 2010, and Endorsement on Costs of Madam Justice Darla A. Wilson dated August 12, 2010, at Exhibits “J” and “K” to the Affidavit of Garth M. Kidd sworn May 18, 2012 at paras. 4-8.
[^8]: Ibid. at paras. 12 and 14.
[^9]: Ibid. at para. 15.
[^10]: Exhibit “CC” to the Affidavit of Anica Visic sworn June 25, 2012.
[^11]: Case Conference Endorsement of Master Lou Ann M. Pope, January 13, 2012, at Exhibit “P” of the Affidavit of Garth M. Kidd sworn May 18, 2012.
[^12]: Supra note 1 at para. 90.
[^13]: Reasons for Judgment of the Divisional Court dated June 7, 2007, at para 9 of Exhibit “T” to the Affidavit of Anica Visic sworn June 25, 2012.
[^14]: Endorsement of Wilson J. dated Sept. 19, 2006, at para. 10 of Exhibit “S” to the Affidavit of Anica Visic sworn June 25, 2012.