SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-451358
DATE: 20140331

RE: Sa Majeste la Reine su Chef de l’Ontario, Demanderesse/Partie Intimee

AND:

Joel Patient Mbiamany N’Tchoreret, alias Joel Mbiamany, alias Joel N’Tchoreret, Defendeur/Auteur de la motion

BEFORE: Pollak J.

COUNSEL:
Joel Patient Mbiamany N’Tchoreret, self-represented Demanderesse/Partie Intimee
Darrell Kloeze, for the Defendeur/Auteur de la motion

HEARD: March 21, 2014

ENDORSEMENT

[1] The Defendant brings this motion to dismiss the action against him pursuant to Rule 3.04(4) of the Rules of Civil Procedure, RRO 1990, Reg 194, for the Plaintiff’s failure to adhere to a timetable ordered on consent of the parties by a Master. The Plaintiff has scheduled a motion before a Master to be heard in the month of June to amend the timetable that was awarded that had been set. The Plaintiff relies on the case of Temelini v. Wright, [2013] O.J. No. 4872, 2013 ONSC 6691, paragraph 7, which held that:

“The defendant acknowledges that the court’s decision to dismiss an action is discretiohary 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 O.A.C. 19 at paras. 24-30.”

[2] I have reviewed the evidence of both parties which shows that the timetable was altered on consent of the parties after it was awarded by the Master several times. The delays and non-adherence to the timetable was agreed to by both parties. Notably, although the Plaintiff delivered its Affidavit of Documents on May 22, 2013, the Defendant has still not delivered his Affidavit of Documents. The delivery of Affidavit of Documents is a step in the timetable prior to the examinations for discovery. The Defendant submits that he has no documents to submit. He still, however, has the obligation to provide an Affidavit of Documents indicating he has no relevant documents. On the basis of the evidence and the submissions of both parties, I do not find that the moving party defendant has met the burden of proof set out in the jurisprudence which I have referred to above. I therefore dismiss the motion.

[3] The successful party, Plaintiff, has not requested costs of this motion.

Pollak J.

Date: March 31, 2014