COURT FILE NO.: 10-49776

DATE: 23/09/2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EVERT JAN STEEN, Plaintiff

AND:

3902641 CANADA INC. carrying on business as N-VisionIT INTERACTIVE, Defendant

BEFORE: MASTER MACLEOD

COUNSEL: T. Kirk Boyd, for the Defendant, moving party

Evert Jan Steen, Plaintiff, responding party (by telephone)

HEARD: September 20th, 2013

ENDORSEMENT

[1] The defendant moves to strike the statement of claim and dismiss the action commenced by Mr. Steen in 2010. The basis for that is failure by Mr. Steen to comply with an order made by Master Roger on May 8th, 2013. That order provided that if the plaintiff failed to answer the list of undertakings referred to in that order by May 10th, 2013 then the action was to be dismissed with costs.

[2] As I will describe in a moment, the order of May 8th was a consent order made after a series of previous orders. At that time Mr. Steen, who resides in British Columbia, was represented by counsel. It is clear that Mr. Steen has willfully refused to comply with the order and that the dismissal of his action is the appropriate remedy. I am therefore granting the requested relief.

Background

[3] This action is a breach of contract action in relation to a web site development agreement signed in April of 2008. Mr. Steen seeks a refund of money paid to the defendants, the cost of replacing his web site and consequential damages. The action was commenced in October of 2010 although I understand from Mr. Steen that he had earlier attempted to bring it in British Columbia but the Supreme Court of B.C. declined jurisdiction. The action was defended in January of 2011. There is a counterclaim for defamation.

[4] Both parties represented themselves for some time and in January of 2012 the action was made subject to case management under Rule 77. It had been agreed between the parties that rather than oral discovery, they would proceed by written interrogatories. At a case conference in May of 2012 Master Roger ordered that both parties were to answer all relevant questions as fully as possible by June 29th, 2012.

[5] At a further case conference on July 18th, 2012 Master Roger ordered Mr. Steen to answer a number of unanswered questions unless he was specifically refusing to do so and he also scheduled the defendant’s motion to compel those answers. Subsequently the time for answering was extended to August 31, 2012 and the parties were required to set out all refusals and undertakings that were in dispute in a refusals and undertakings chart.

[6] A full day motion was argued on December 6th, 2012 during which the Master carefully reviewed the relevance and sufficiency of the outstanding questions, follow up questions and refusals. The plaintiff was specifically ordered to answer questions and undertakings and ordered to pay costs. Subsequently Mr. Steen appointed counsel. At a case conference on February 27th, 2013 with his counsel in attendance I ordered him to answer his outstanding undertakings by March 8th, 2013 and to pay the outstanding costs. Mr. Boyd confirms that some answers were provided in response but there were still answers missing and many of those that were provided were considered to be unresponsive or inadequate.

[7] On May 8th, 2013 there was a further motion in which the defendant sought answers to undertakings that were still outstanding or better answers or to undertakings that were considered unresponsive as well as answers to refusals. By that time the defendant had also appointed counsel, Ms. Alexander and Mr. Steen still had counsel, Mr. Griffiths.

[8] The motion was resolved by agreement between counsel. It provided yet another deadline to answer the remaining undertakings and contained the provision that if the undertakings were not answered the action would be dismissed. This was the third order requiring the plaintiff to provide many of the same answers. A motion date was also set to deal with incomplete or disputed answers in the event that was required.

[9] In compliance with the May 8th order, the plaintiff was to be provided with a list of outstanding undertakings. The list was provided. Mr. Steen does not dispute the fact that he has still not answered those questions nor does he dispute that he clearly understood what it was he was supposed to do.

The issue of disability

[10] On June 8th, 2013 Mr. Steen filed a notice of intention to act in person. Subsequently Ms. Alexander, lawyer for the defendant, received an e-mail and then a voice message from someone identifying himself as a lawyer named Noel Daley. Mr. Daley states that he was an investor with Mr. Steen and that it was his $45,000.00 paid to the defendant for the web site design so he “has a big dog in the hunt”. In the voice mail he then questions whether Mr. Steen might not now be suffering from some sort of dementia and advises Ms. Alexander to bring this to the attention of the court. Mr. Daley did not purport to be retained nor to be taking any action to be appointed as litigation guardian.

[11] On July 2nd, 2013 Mr. Steen sent an e-mail to the court office in which he advised he is aware of both the e-mail and the voice mail. He stated that he “would endorse a court order to undergo a full psychiatric assessment that could well lead to the Court’s appointment of an official litigation guardian, or amicus curiae on behalf of plaintiff Steen”.

[12] I refer to this simply to illustrate that I am aware of it. Ms. Alexander has quite properly drawn it to the attention of the court by referring to it in her affidavit. Other than the suggestion by Mr. Daley in his communication with Ms. Alexander, there is nothing formally before the court to suggest that Mr. Steen is under a disability. His own response may be regarded as opportunistic and if anything suggests the contrary since it appears he appreciates the nature of the proceeding he is involved in and the consequences of being found to be incompetent. Nothing has been done by Mr. Steen or Mr. Daley to appoint a litigation guardian. Mr. Griffiths who represented Mr. Steen between March 26th, 2013 and June 18th, 2013 apparently took instructions without indicating any concern that his client was not competent to instruct him.

[13] On the telephone during the argument of the motion, Mr. Steen appeared to fully comprehend the nature of the motion and the consequences of dismissal of the action. He filed a cross motion in which he asked me to set aside the order of Master Roger and he was able to clearly articulate his objection to answering the questions because he believed them to be irrelevant and abusive. I do not accept that there is any reason to believe that Mr. Steen is a person under a legal disability.

Analysis and disposition

[14] Mr. Steen made it abundantly clear during the motion that he has made no attempt to answer the remaining undertakings because he does not agree he should have to. He states that they are not relevant and are too much work. When I asked him if he would comply with the order if I gave him a further 30 days he advised me he would only do so if the court could guarantee he would not then be asked more questions.

[15] Under the circumstances I have no option but to conclude that the failure to answer the undertakings constitutes willful and intentional disregard of a court order. As stated by Ferrier J. in 1066087 Ontario Inc. v. Church of the First Born Apostolic Inc. et. al. cited by counsel for the defendant, where a plaintiff has shown utter disregard for the orders of the court, it is unfair to require the defendant to continue to incur costs defending the action. A similar conclusion was reached by the Divisional Court in Vacca v. Banks (2005) 6 C.P.C. 22. In any event, Master Roger has already ordered that the action be dismissed if there was failure to comply and that order was not appealed.

[16] Accordingly the action of the plaintiff is dismissed with costs of the motion. The costs are fixed at $2,800.00 on a partial indemnity scale.

[17] I note that the counterclaim continues although I was advised that counsel would seek instructions in this regard. If the counterclaim is continuing then it would be inappropriate to award the defendant costs of the action at this time. In the event the counterclaim is discontinued then I may be spoken to with respect to a final disposition of costs.

Master MacLeod