2013 ONSC 5063

In the matter of Przysuski v. City Optical Holdings, et al. (CV-08-358687) and Carenza v. City Optical Holdings, et al. (CV-08-358583)

Parallel motions brought by the applicant and by the plaintiff

Motion heard: July 30/13

In attendance: C. Wagman 416-465-3941 (f.)

A. Flesias 905-850-9998 (f.)

Endorsement of Master Abrams:

[1] I accept, as Mr. Wagman has argued, that there has been a pattern of delay and begrudging compliance with court Orders and self-imposed commitments on the part of the defendants/respondents in these proceedings. An Order was made by Roberts, J. as to fulfillment of undertakings. That Order was breached. An agreement was struck among the parties for fulfillment of undertakings/production of documents. The terms of the agreement were not met by the defendants/respondents. An Order was made by Master Hawkins compelling Mr. Parr to attend to be cross-examined and ordering him to fulfill undertakings. Mr. Parr failed to attend on a number of occasions before he complied with Master Hawkins’ Order. While health issues are cited by Mr. Parr, no doctor’s note has been proffered. Kelly, J. ordered that Mr. Parr attend to be cross-examined with Minute Books and Share Certificates in hand. No Minute Books or Share Certificates were brought by Mr. Parr to his cross-examination. Undertakings that I ordered answered by July 31/12 have not been answered. Some Minute Books ordered produced, by me, have not been produced—ostensibly because Mr. Parr does not have them. Why he does not have them and where they were (and are no longer) has not been disclosed by him. Then too, $2,886.23 in costs that I ordered paid by February 28/13 have not been paid.

[2] Deadlines have been fixed that have not been met. Mr. Parr acknowledges my undertakings and costs Order and, though he admits to being in breach thereof, gives no explanation as to why. If he required more time to fulfill undertakings (or, indeed, any of the Orders that he breached), he could have sought an extension of time from the court. Likewise, if he required more time to pay costs, he could have asked for more time before the deadline imposed by me passed. Mr. Parr is silent in his affidavit as to when he intends to fulfill outstanding undertakings; and, though no request to have me offset outstanding photocopying costs was made when I entertained submissions with respect to the $2,886.23 costs award, Mr. Parr now seeks, of his own volition, to add a qualification of his own making to my Order.

[3] The delays and breaches herein, notwithstanding, there has been some forward movement on the part of the defendants/respondents—albeit halting and, in some cases, after court-imposed deadlines. The undertakings ordered answered by Roberts, J. have been answered. Mr. Parr has been cross-examined. Some of his undertakings have been fulfilled. Some documents have been produced (400 bankers’ boxes have been made available for inspection, with 14 bankers’ boxes--i.e. those documents deemed relevant--produced). Some of the Minute Books ordered produced have been produced. Some costs Orders have been paid.

[4] Ought I now, as requested, to strike the defendants’ statement of defence and the respondents’ responding material (the affidavit of Mr. Parr) for failure to comply with court Orders/fulfill undertakings? I agree with Master Dash when he said in Eloro Resources Ltd. v. Sovereign Capital Group (Ont.) Ltd., 2004 14047 (ON SC), 2004 CarswellOnt 544 (S.C.J.) that striking a defence/respondents’ affidavit is “…an extreme remedy and a last resort. It should only be ordered when…the defendant by its failure or refusal to be bound by the rules and orders of the court effectively abandoned its right to participate in the court process or when the breaches have become contumelious….”. The failings of the defendants/respondents in these proceedings are many but they are not yet quite so egregious as to merit the relief now sought by the plaintiff/applicant.

[5] That said, I note that Mr. Przysuski is ill. It is important that he be permitted to advance his claims, without his efforts being thwarted by delay after delay. While I am not prepared today to grant the plaintiff and applicant the relief that they seek, with the defendants/respondents having taken imperfect steps, but steps nonetheless, to address some of their defaults, I am prepared to make a last chance Order—to be construed, going forward, as a last chance Order (in respect of the defendants’/respondents’ outstanding obligations). By August 23/13, all of the undertakings ordered answered by me, to the extent that they have not been answered, are to be answered. By August 9/13, the outstanding costs Order is to be paid—in full. And, in the supplementary affidavit of documents ordered served after the motion to convert the application into an action is heard, the missing Minute Books are to be listed in Schedule “C”.

[6] The defendants/respondents are reminded that they must heed the Orders of the court if they wish to have standing to address the claims made against them. And, they must respect court process, going forward, if they wish the court to give them an audience.

[7] Failing agreement as to the costs of the two motions, I may be spoken to.

July 30/13 ________________________________