ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-41616
DATE: 20131025
BETWEEN:
PAUL TEMELINI
Plaintiff/Responding Party
– and –
BETTY J. WRIGHT, JACK KRUGER, MICHAEL BLACK, MURRAY WOOD, LEONARD DEAN, KORNELEI THEODORE KERELUK, THE ATTORNEY GENERAL OF CANADA and ANDREW T. ADAM VON RHEDEY also known as TIBOR ADAM
Defendants /Moving Party
Claudio Martini, for the Plaintiff
Talitha A. Nabbali, for the Defendant, The Attorney General of Canada
HEARD: October 10, 2013
Endorsement
JUSTICE L. RATUSHNY
1The defendant The Attorney General of Canada seeks an order, pursuant to Rules 3.04(4), 30.08(2) and 60.12 of the Rules of Civil Procedure, RRO 1990, Reg 194, dismissing the plaintiff’s action for failure to comply with court orders, court imposed timetables and production obligations.
Background
2This action has a long history.
3The plaintiff commenced his action in 1984 claiming damages for malicious prosecution of him by the RCMP. In 2007 the plaintiff was granted leave to add the Attorney General of Canada as a defendant.
4There were then five consent Orders from Master MacLeod between December 2009 and July 2011 ordering documentary production by the plaintiff.
5On April 13, 2012 the defendant brought an identical motion to the present motion, requesting dismissal of the plaintiff’s action for failure to comply with his documentary production obligations. By an endorsement of the same date, Justice R. Smith ordered the plaintiff to produce medical records and did not grant the requested dismissal.
The Defendant’s Position
6The defendant has characterized this action’s long history as amounting to the plaintiff having had 29 years to make production of his documents and perfect his action and says that instead, the plaintiff has ignored his production obligations and has repeatedly and continuously breached court orders and timetables for documentary production.
7The defendant acknowledges that the court’s decision to dismiss an action is discretionary and should only be granted in the most serious case where the conduct of a party has been so egregious as to warrant such a remedy: Starland Contracting Inc. v. 1581518 Ontario Ltd., (2009) 2009 30449 (ON SCDC), 252 OAC 19 at paras. 24-30.
8It is accepted that a party’s claim is more at risk of dismissal if the default is intentional, flagrant or without reasonable excuse such that it constitutes an abuse of the court’s process: Starland, supra.
9The defendant submits that the motion record including the five consent orders of Master MacLeod is evidence of the plaintiff having engaged in a course of conduct whereby he consents to each order and claims he can comply with it and then fails to abide by it. The defendant says this conduct has amounted to a deliberate manipulation of the court process by the plaintiff so as to gain further extensions of time and that each time his promises to comply have ended in nothing being produced.
10The defendant argues that in this context, the plaintiff’s repeated failures to comply with court orders should be regarded as a flagrant disregard for the court process and an abuse of it that if not sanctioned, undermines the administration of justice.
Analysis
11A review of the record before me reveals the defendant’s characterization of the plaintiff’s conduct in this action’s long history to be an exaggeration.
12It is not an accurate characterization for the defendant to state that the plaintiff has had 29 years to perfect his action, particularly in light of the defendant’s delay continuing into 2008 of production of relevant RCMP documents.
13Nor is it a reasonable inference to conclude from the record that the plaintiff has ignored his production obligations, has repeatedly and continuously breached court orders and timetables for documentary production, or has deliberately manipulated the court process. The plaintiff has neither ignored his production obligations nor can he be said to have abused the court process.
14The record is clear, however, that the plaintiff did fail to comply fully with some production orders and obligations, namely the five orders of Master MacLeod dated December 9, 2009 (the First Order), February 4, 2010 (the Second Order), October 6, 2010 (the Third Order), April 16, 2011 (the Fourth Order), and July 11, 2011 (the Fifth Order).
15However, the plaintiff’s failures do not allow for an inference of intentional disregard for or manipulation of the court process. The record indicates, instead, that there has been ongoing production of documents by the plaintiff.
16The defendant does not dispute the plaintiff’s assertion that between 1992 and November 2010, the plaintiff produced a total of 5271 documents.
17The First Order refers to the “massive undertaking” for the plaintiff in producing affidavits of documents for certain added plaintiffs at that time and to update his own affidavit of documents.
18The Second Order states, “The plaintiff did not comply precisely with the production order made in December [the First Order] but did produce a considerable number of documents in January”.
19The Third Order states, “The plaintiff has still not completed the production contemplated by the last order. He is now apparently contemplating a change in counsel”.
20The Fourth Order refers to Mr. Martini, the plaintiff’s present counsel, taking carriage of the plaintiff’s case and that the “plaintiff is aware of the need to complete production”.
21The Fifth Order indicates, “Mr. Martini has now taken carriage of the case for the plaintiff. He advises he has three bankers boxes and there are a further 20 boxes which he expects to receive shortly”, and that a damage report is expected to be available in September. The damages report has been produced.
22The plaintiff’s counsel delivered a Supplementary Affidavit of Documents on March 20, 2012 containing 4034 documents and he states that the plaintiff’s Affidavit of Documents is complete.
23The identical motion to the present motion was heard by Smith J. on April 13, 2012. The plaintiff’s action was not dismissed as had been requested by the defendant and there was an order for the production of the plaintiff’s medical records.
24I find from the record before me including the Responding Party’s Motion Record at pages 115- 171 and the significant efforts of his counsel to satisfy the defendant’s production requests, that the plaintiff has been diligent in his efforts to comply with the Order of Justice Smith as well as with the defendant’s requests for medical records, and that he has complied with that Order.
25I decline to consider any further that part of the defendant’s claim listing other missing documentation aside from medical records. That claim has already been heard by Justice Smith on the motion before him on April 13, 2012. He simply accepted the plaintiff’s position that thousands of documents had been produced by the plaintiff and a proper affidavit of documents had been produced in March 2012.
Prejudice
26I turn to the issue of prejudice.
27The defendant submits that in considering an application for dismissal of a claim for non-compliance with production obligations including under court orders, the prejudice caused to the defendant by the non-compliance is a relevant factor to be considered. I agree that actual or potential prejudice can be a relevant factor to be considered in the exercise of the court’s discretion in a matter such as this: King v. Belair Direct, [2004] O.J. No. 868 (Ont. Div. Ct.), at para 13.
28The defendant claims, as a result of the delay caused by the pace of the plaintiff’s fulfillment of his production obligations, that it has suffered prejudice by being unable to proceed with examinations for discovery because of the missing documents, by the diminished memories of its witnesses and by the continuing accrual of the alleged damages.
29The plaintiff submits that this claim of prejudice should not be accorded any weight in the exercise of this Court’s discretion on this dismissal application.
30In the context of this action, I agree. The defendant’s claim of prejudice is largely one of potential prejudice to it because of the passage of time. It is a bare claim with little evidence behind it and has not been proved. Neither is there any evidence of actual prejudice. Additionally, the defendant could now be said to have contributed to some of the delay, stemming from its prolonged disagreement over productions and its refusals of the plaintiff’s requests to schedule examinations for discovery even as late in the course of this action as October 2012 (Tab N, Motion Record of the Defendant) and July 2013 (Tab O, Motion Record of the Defendant).
31As a factor to be balanced with the other factors in the circumstances of this case, therefore, the issue of prejudice to the defendant caused by the passage of time to obtain the plaintiff’s productions is one that carries little if any weight.
Conclusions
32I am satisfied that the present motion is without merit on the issue of the plaintiff’s non-compliance with his production obligations. I conclude that this motion ought not to have been brought in light of the obvious diligence exhibited by the plaintiff and his counsel particularly since July 2011 when Mr. Martini became the plaintiff’s new counsel of record, and also in light of the res judicata status of most of the present motion. That the defendant has brought this second motion gives credence to the plaintiff’s assertion that the disagreement over production of documents is more over the form of production according to the Rules rather than a failure to comply with production obligations.
33It is for these reasons that the defendant’s motion is dismissed and costs are awarded to the plaintiff.
34The defendant has refused to schedule discoveries because of missing documents, notwithstanding the plaintiff’s efforts to schedule those discoveries. Given the long history of this action and the extensive documentary production to date, I agree with the plaintiff’s request that discoveries be scheduled pursuant to an order of this Court. I also order that by October 15, 2014 the action is to have been set down for trial.
35I make, therefore, the following Orders:
The defendant’s motion is dismissed;
Costs of this motion are awarded to the plaintiff. If the parties are unable to agree on their quantum, written costs submissions (a maximum of three pages from each party exclusive of attachments) are to be forwarded to me by November 15, 2013;
Examinations for Discovery are to be held up to a maximum of four days for each party and are to be completed by December 20, 2013, unless the parties agree otherwise;
By October 15, 2014 this action is to have been set down for trial.
Ratushny J.
Released: October 25, 2013
COURT FILE NO.: 08-CV-41616
DATE: 20131025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL TEMELINI
Plaintiff/Responding Party
– and –
BETTY J. WRIGHT, JACK KRUGER, MICHAEL BLACK, MURRAY WOOD, LEONARD DEAN, KORNELEI THEODORE KERELUK, THE ATTORNEY GENERAL OF CANADA and ANDREW T. ADAM VON RHEDEY also known as TIBOR ADAM
Defendants /Moving Party
Endorsement
Ratushny J.
Released: October 25, 2013