ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Starka v Greenstone, 2015 ONSC 1170
COURT FILE NO.: CV-12-510
DATE: 2015-02-23
B E T W E E N:
GLEN STARKA
Brendan Hardick agent for Roy Karlstedt for the Plaintiff/Responding Party
Applicant(s)
- and -
THE CORPORATION OF THE MUNICIPALITY OF GREENSTONE, FORMERLY THE TOWN OF GERALDTON
Derek Zulianello agent for Charles Painter, for the moving party/defendant
Respondent(s)
HEARD: February 5, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] This is a motion by the defendant to strike the plaintiff's claim for failure to comply with prior Orders relating to discovery undertakings and costs.
[2] As of the hearing date of this motion, most undertakings were satisfied or were in the process of being satisfied. Costs previously ordered were paid, although not until recently.
[3] The defendant, in response to an undertaking answer that certain physical evidence is no longer available, now asserts, that as result of this loss, there is a substantial risk that a fair trial will not be possible.
Facts
[4] The plaintiff's claim arises from a snowmobile accident which occurred on December 2, 2010. The statement of claim was issued November 29, 2012. The examination for discovery of the plaintiff commenced May 27, 2013. At discovery, the plaintiff undertook to produce additional information including information related to income and employment, medical records and a photograph of the goggles allegedly worn by the plaintiff at the time of the incident.
[5] Despite requests, the plaintiff did nothing to comply with the undertakings. Consequently, the defendant brought the first motion which resulted in a consent Order dated July 17, 2014 that the undertakings be answered within 45 days and that the plaintiff pay costs of $750 within 30 days.
[6] Despite this consent order, the plaintiff did nothing to comply and also failed to pay the costs as ordered. The defendant brought the second motion which also resulted in a consent Order dated October 2, 2014 that the undertakings be answered within 30 days, that the costs previously ordered be paid within seven days and that the plaintiff pay further costs of $750 within seven days.
[7] Unfortunately, it was necessary for the defendants to bring this motion which was originally returnable November 20, 2014. On that date, this motion was adjourned over the objections of the defendant as counsel for the plaintiff had just retained counsel to assist. Costs of that appearance were reserved to the disposing judge. A further adjournment was granted on December 11, 2014 as the plaintiff has "begun, finally, to answer undertakings". The plaintiff was ordered to pay costs of $500 forthwith as a condition of that adjournment. On January 29, 2015 the motion was adjourned again because the plaintiff had late served materials. Costs of $500 were again awarded to the defendant.
[8] The evidence on this motion included the original affidavit of counsel for the defendant sworn November 4, 2014, a responding affidavit by counsel for the plaintiff dated December 10, 2014, a supplementary affidavit by counsel for the defendant dated January 15, 2015, and a supplementary affidavit by counsel for the plaintiff dated January 23, 2015.
[9] It was clear from the affidavits that there had not been any attempt to comply with the undertakings or satisfy the prior cost Orders until the third motion was served. By the time this motion was heard, the undertakings had been complied with or, at least, steps had been taken to fulfill the undertakings. For example, the decoded OHIP summary remains outstanding but was requested in November 2014.
[10] One undertaking was to provide a photograph of the goggles that the plaintiff alleges he was wearing at the time of the incident. The answer given December 10, 2014 was that the goggles "no longer exist". The further explanation given was that counsel for the plaintiff had been advised by the plaintiff that, at the time of discoveries, he believed the goggles would be available. However, the plaintiff subsequently advised that the goggles "disappeared or were stolen during the winter next following discoveries".
[11] In his supplementary affidavit counsel for the defendant deposed that factors affecting vision are extremely important to the defence of this action and that therefore, lost evidence pertaining to driver vision and perception is highly prejudicial. However, the discovery evidence of the plaintiff was that the goggle lens were amber in colour and that the goggles were manufactured by Oakley or Scott.
[12] Counsel for the defendant also deposed that failure to provide contact information for a witness to the incident until December 2014 is prejudicial since "undoubtedly his memory… will have faded." Counsel for the defendant deposed, however, that he had not yet been able to contact this witness.
Analysis
[13] The discretion to strike a claim for failing to comply with Orders should be exercised as a last resort where warranted in order to protect the integrity of the justice system from abuse by a recalcitrant litigant. See for example Starland Contracting Inc. v. 1581518 Ontario Ltd. , [2009] O.J. No. 2480 at paragraph 27.
[14] With respect to prejudice, the defendant relies upon Jack v. Gowling, Strathy & Henderson 2011 ONSC 1363, [2011] O. J. No. 997.[^1] At paragraph 34 Lauwers J. stated:
“The relevant elements of prejudice are described by Borins J. in Belanger v. Southwestern Insulation Contractors Ltd. (1993), 1993 CanLII 5503 (ON SC), 16 O.R. (3d) 457[1993] O.J. No. 3095(Gen. Div.) at para.28:
… In order to succeed on a motion to dismiss a plantiff’s claim for delay the defendant must establish that the delay has been unreasonable in the sense that it is inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible for the defendant at the time the action is tried if it is allowed to continue.” (emphasis added)
[15] Further, he stated at paragraph 67:
“I give no weight to the argument of the moving parties that “inordinate delays since the cause of action arose will give rise to a presumption of prejudice”: Woodheath Developments Ltd. v. Goldman (2001), 2001 CanLII 28019 (ON SC), 56 O.R. (3d) 658 (S.C.) per Master Dash at para. 29, aff’d (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731(Div. Ct.); Persaud v. Scarborough Shopping Centre, [2007] O.J. No. 2545 (S.C.) per Master Sproat at para. 68. Given the Draconian result being sought, it seems to me that potential or actual prejudice must be shown.” (emphasis added)
[16] Lauwers J. found that the loss of medical records relating to the plaintiff’s medical history prejudiced the defence and struck the claim.
[17] The court must balance the plaintiff’s right to proceed to trial with the defendant' s right to a fair trial.
[18] No excuse is offered for the failure to comply promptly with the undertakings. Indeed, on the face of it, the failure to comply promptly, and, particularly in the face of two consent Orders, is inexcusable. Nevertheless, I am unable to conclude that delay alone amounts to prejudice. It is open to the defendant to argue at trial that prejudgment interest should be suspended during any period of unexplained delay.
[19] Similarly, on the evidence before me, I am not satisfied that there is a substantial risk that a fair trial will not be possible either on the basis of the lost goggles or on the failure to provide earlier the contact information of the witness. The plaintiff can provide a further description of the goggles allegedly worn at the time of the incident if necessary. Although it would have been preferable to have the photograph as requested, the lost opportunity for a photograph does not equate to a substantial risk that a fair trial will not be possible. With respect to potential recall issues of the witness, the prejudice is speculative.
Conclusion
[20] For the reasons given, the defendant' s motion to strike the claim is dismissed.
[21] Although unsuccessful, it is clear that this third motion was necessary to prod the plaintiff into action. The agent for the defendant submitted a bill of costs seeking $2,913.02 on a partial indemnity basis including HST and disbursements. A review of the bill of costs confirms that the costs for the July 17 and October 2, 2014 are not included in this bill of costs. However, the costs of $500 ordered December 11, 2014 and costs of $500 ordered January 29, 2015 would be included. The costs of the November 20, 2014 adjournment are in my discretion.
[22] The plaintiff served an offer to settle this motion which, in essence, offered to pay $750 for costs.
[23] In the circumstances, I order that the plaintiff pay to the defendant the sum of $1,250 inclusive of HST and disbursements within 60 days.
___”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: February 23, 2015
CITATION: Starka v Greenstone, 2015 ONSC 1170
COURT FILE NO.: CV-12-510
DATE: 2015-02-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GLEN STARKA
Applicant(s)
- and -
THE CORPORATION OF THE MUNICIPALITY OF GREENSTONE, FORMERLY THE TOWN OF GERALDTON
Respondent(s)
DECISION ON MOTION
Newton J.
Released: February 23, 2015
/cs
[^1]: Jack v. Gowling, Strathy & Henderson, 2011 ONCA 736 Overturned on Appeal because no evidence of actual or potential prejudice.