ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NOs.: 1330/10 and 1331/10
DATE: 2015-07-23
B E T W E E N:
1330/10
Nasser Dahoui and
Crunchy Fried Chicken Inc.
Paul Heath, for the Plaintiffs/Responding Parties
Plaintiffs
(Responding Parties)
- and -
State Farm Fire and Casualty Company
Anthony J. Bedard, for the Defendant/Moving Party
Defendant
(Moving Party)
A N D B E T W E E N:
1331/10
Nadia Okal Dahoui and
Casablanca Lounge Inc.
Plaintiffs
(Responding Parties)
- and –
State Farm Fire and Casualty Company
Defendant
(Moving Party)
Paul Heath, for the Plaintiffs/Responding Parties
Anthony J. Bedard, for the Defendant/Moving Party
HEARD at Welland, Ontario:
July 22, 2015
The Honourable Justice T. Maddalena
ENDORSEMENT ON MOTION
[1] The moving party defendant (“the defendant”) brings a motion in both actions, 1330/10 and 1331/10, requesting an order dismissing both actions of the plaintiffs (collectively referred to as “the plaintiff”) for complete failure to comply with the court order of April 8, 2015.
[2] In the alternative, the defendant requests that the court issue a last chance order with strict terms and conditions.
[3] Both actions have an exceptionally large number of adjournments at the request of the plaintiff.
[4] These actions arise as a result of a fire which occurred August 29, 2008. The cause of the fire was identified as arson.
[5] The statement of claim in both actions was issued on August 25, 2010. The statement of defence for both was served and filed on April 21, 2011. The examinations for discoveries were completed in January 2012.
[6] The defendant/moving party maintains that from there, there were an inordinate amount of adjournments sought by the plaintiff as a result of not pursuing its claims diligently.
[7] The failure of the plaintiff to answer undertakings meant adjournments at various assignment courts on May 14, 2013, August 13, 2013 and September 10, 2013.
[8] On the November 4, 2013 assignment court, the court refused a further adjournment and ordered the matter proceed to a pretrial which the court scheduled for February 4, 2014.
[9] The pretrial of February 4, 2014 did not proceed as the plaintiff’s expert witness, Mr. Rotundo, died on January 21, 2014. As a result, the defendant/moving party consented to the adjournment of the pretrial scheduled for February 4, 2014 to a new pretrial date of April 11, 2014.
[10] The pretrial of April 11, 2014 was again adjourned to July 4, 2014 since the plaintiff still had not retained their expert to replace Mr. Rotundo.
[11] The pretrial of July 4, 2014 was ordered peremptory to the plaintiff.
[12] At the July 4, 2014 pretrial no expert’s report was obtained by the plaintiff.
[13] At the August 12, 2014 assignment court, there was still no expert’s report, but the plaintiff agreed to schedule a trial in the spring of 2015. Accordingly, the trial was scheduled for two weeks to commence April 13, 2015. In December 2014 the defendant/moving party put the plaintiff on notice that their trial preparation would soon commence.
[14] On April 1, 2015 the plaintiff served a motion to request the adjournment of the trial which had been set for two weeks commencing April 13, 2015.
[15] The defendant/moving party opposed the motion. On April 8, 2015 I heard the plaintiff’s motion and I granted leave to the plaintiff to now bring their motion. I granted the plaintiff’s request to adjourn the trial but imposed strict terms as outlined in the order of April 8, 2015. The trial was adjourned and the plaintiff was granted 60 days to serve and file their expert’s report. The matter was set for an assignment court for July 27, 2015 to set new trial dates. This was ordered peremptory to the plaintiff. Further, I assessed costs thrown away in favour of the defendant in the amount of $40,000.00 to be paid forthwith.
[16] I determined that the defendant had been highly prejudiced as a result of the last minute adjournment of the trial, but that this could be compensated by costs thrown away and the imposition of strict terms.
[17] By July 22, 2015, the date of this motion before me, the plaintiff has done nothing to comply with the order of April 8, 2015. The plaintiff has not yet retained their expert witness nor have they paid the defendant costs thrown away which were ordered payable “forthwith”.
[18] Rule 60.12 of the Rules of Civil Procedure provides that if a party fails to comply with a court order, the court may dismiss the party’s action.
[19] The case law on this is clear. Orders that are made by a court must be complied with; otherwise the administration of justice may fall into disarray.
[20] A party simply cannot be permitted to continue his or her action without complying with court orders.
[21] In this case, the plaintiff has had counsel throughout. The plaintiff agreed, in its own submissions, that as part of dealing with the issue of the adjournment of the trial scheduled to start April 13, 2015, the defendant could be compensated by an award of costs thrown away. This was an important consideration in the granting of the adjournment of the trial at the request of the plaintiff.
[22] It is simply not open to the plaintiff to now not comply with that order.
[23] There will be one last chance order for the plaintiff.
[24] The plaintiff shall have 30 days from today (i.e. from July 23, 2015) to fully comply with the order of April 8, 2015, failing which the defendant may return, on notice, its motion for dismissal.
[25] Further, the plaintiff hinted in its submissions on the 22nd of July 2015 that there may be a request to amend its claim. At such a late date this cannot and will not be permitted given the prejudice that would result to the defendant. Further, the assignment court set for July 27, 2015 shall continue as peremptory to the plaintiff and a new trial date shall be set on July 27, 2015.
[26] Further, costs of this motion are fixed at $3,500.00 payable by the plaintiffs to the defendant within 30 days.
Maddalena J.
Released: July 23, 2015
COURT FILE NOs.: 1330/10 and 1331/10
DATE: 2015-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nasser Dahoui and
Crunchy Fried Chicken Inc.
Plaintiffs
(Responding Parties)
- and –
State Farm Fire and Casualty Company
Defendant
(Moving Party)
A N D B E T W E E N:
Nadia Okal Dahoui and
Casablanca Lounge Inc.
Plaintiffs
(Responding Parties)
- and –
State Farm Fire and Casualty Company
Defendant
(Moving Party)
ENDORSEMENT ON MOTION
Maddalena J.
Released: July 23, 2015