Avdeeva v. Khankaldiyan 2015 ONSC 4984
Avdeeva v. Khankaldiyan
Court File No.: 05-CV-299825PD 3
Motion Heard: May 8/15 and June 5/15
In attendance: G. Sidlofsky, for defendant 416-364-6579 (f.)
R. Thapar/A. Mann, for plaintiff 905-457-5641 (f.)
By the court:
[1] The defendant seeks an Order dismissing the plaintiff’s claim for failure to satisfy two costs Orders ($2,500.00: January 8/14 and $43,736.57: May 12/14) and for delay. To date, the plaintiff has failed to serve an affidavit of documents or proceed to examinations for discovery in this 2005 action.
[2] The plaintiff has not responded directly to the defendant’s motion. On her behalf, her granddaughter (who now apparently holds her power of attorney) has responded.[^1] I say ‘apparently’ because what purports to be an English translation of a power of attorney in the Russian language has been produced for my review. I do not know who translated the document and cannot know whether the translation is fulsome and/or accurate.
[3] The plaintiff’s granddaughter advises that her grandmother is a senior who suffers from blindness and from a medical condition that “prevents her from travelling to or otherwise deal [sic] with the stress of this litigation”. I assume that this is why the plaintiff’s granddaughter has chosen to swear the affidavits filed in response to the defendant’s motion (but I am only speculating).[^2]
[4] In this regard, while I acknowledge that what purports to be a translation of an “abstract of [a]…medical report”, dated April 23/15, has been produced by the plaintiff’s granddaughter, I do not know who translated the abstract and how reliable the translation is. That notwithstanding, there is nothing in the abstract now before me that addresses how long the plaintiff might be unable to travel and nothing that addresses her ability to advance her claims herein. There is also nothing in the abstract that indicates that she has been or is unable to instruct others to pursue the litigation on her behalf, if she is unable to carry on herself (and I do not know that she is).
[5] The plaintiff’s granddaughter posits that the plaintiff is unable to pay the costs Orders and, to this end, would be unable to service mortgage debt if she were to secure a mortgage on her share of the property at issue in the litigation. She says that the plaintiff’s interest in the property is her only asset. How do I know that what the granddaughter says is accurate? And while the granddaughter indicates that she herself discussed the issue with “a representative of the Royal Bank of Canada” who told her that no such mortgage (if sought) would be approved (paragraph 24 of her May 4/15 affidavit), her evidence is of little-to-no utility. With whom did she speak? When? What did she say? What documents did she share? What, specifically, was she told and by whom? Why did she make inquiries of the Royal Bank of Canada only?
[6] The plaintiff’s granddaughter also says that “[the plaintiff’s] only source of income is Old Age Security pension benefits received from the Government of Canada in the amount of $155.03 per month, which are barely sufficient for her to meet her living expenses”. She indicates that the plaintiff supports herself with financial assistance from friends and family and has had to borrow money from friends and family to fund the litigation.
[7] A few questions follow from my review of the plaintiff’s granddaughter’s evidence as to the plaintiff’s financial circumstances. How is the plaintiff supporting herself in Russia, where she now is said to be? Where is the plaintiff living in Russia? Does she own the home in which she is residing? If not, is she paying rent? How can she afford rent, if she is paying it? She is described in the abstract of the medical report as a “pensioner”. Does she receive a Russian pension? If friends and family support her and have helped to defray the plaintiff’s expenses, why can they not help her to satisfy her costs obligations herein? Has she asked for their assistance? And while the plaintiff’s granddaughter says that the plaintiff’s only asset is the home in Canada that underlies the dispute, why can her granddaughter (who has admitted to residing in that home) not pay rent to the plaintiff--which rent could be used to at least pay down the amount of costs owing?[^3]
[8] Four days after the defendant received the plaintiff’s motion materials, but after the hearing of the motion (with a return before me, to continue argument in respect of a question that I had regarding the plaintiff’s motion material, anticipated), the defendant filed with me documentation that reveals that, in 2012, the plaintiff transferred to her daughter (who is said to be caring for her and who is the mother of the person upon whose evidence I am being asked to rely) two properties in Toronto—this for $2.00 each. The value of the properties at the time of purchase (2004 and 2007, respectively) totalled more than $400,000.00. If the plaintiff is in dire financial straits (as is suggested), why did she transfer two properties to her daughter for $4.00? If her only income is her old age pension from Canada, how was she able to afford the homes? She was already a pensioner in 2007. While her granddaughter says that the properties were transferred to eliminate the payment of probate fees upon the plaintiff’s death and because the plaintiff could not afford to pay expenses on the two properties, why can the plaintiff not look to her daughter (who received the properties and was acting as her attorney when the costs Orders were made) for a loan, as against the equity in the properties, to fulfill her court-ordered obligations? Estate planning seems to have trumped compliance with court Orders. And while the transfers were made in 2012--before the costs Orders issued--they were made while the litigation was pending and with the anticipation of the motion that was ultimately heard by Myers, J. (Mr. Sidlofsky having just come on the record for the defendant).
[9] As for the manner in which the action has been prosecuted, the plaintiff’s granddaughter contends that, after the death of the plaintiff’s husband and son (which I accept reasonably might have slowed the progress of the action) and after the attendance before Belobaba, J. in March 2009, the plaintiff “had every intention to move the action forward, but was obstructed from doing so due to her medical condition which began to decline and deteriorate significantly”. There is not a scintilla of evidence before me to substantiate her contention. Even if I were to accept that the abstract of medical records filed has been accurately translated, there is nothing before me to support the contention that from 2009-April 23/15, the plaintiff was too ill to advance her claims. It is noteworthy that, to the extent that she did advance her claims from 2005-2009, she was found to have done so after engaging in “a pattern of inappropriate delays and processes…” (see: https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2931/2014onsc2931.html, at para. https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2931/2014onsc2931.html#par8). Even when offered a “speedy, narrow trial limited only to the [p]roperty [at issue in the litigation]” (see: 2014 ONSC 2931, at para. 12), the plaintiff declined to move forward. The plaintiff’s granddaughter now suggests that the plaintiff did not know that the offer of a speedy trial had been made by Myers, J. Yet, by November 28/14 the plaintiff’s daughter (who held her power of attorney at the time) acknowledged having Myers, J.’s March/14 Order (email to Mr. Apel dated November 28/14, 4:47:32 p.m., filed). Why was there no follow up on the speedy trial issue, by the plaintiff or her agents, even as at then?
[10] The plaintiff suggests that she has been poorly served by her former lawyer and lays the blame for much of the delay at his feet. Yet, she has done nothing to give the court assurance that she is ready and willing to prosecute her claims, even as at now. Her granddaughter has deposed that the plaintiff cannot deal with the stress of litigation. If that is so, how does she propose to proceed? And, if she is unhappy with the manner in which her former lawyer represented her interests, there is no reason that she cannot address the issue of his representation of her outside of the four corners of this litigation. There is nothing before me to suggest that she has done so or is doing so. And, there is nothing before me as to Mr. Apel’s view of the plaintiff’s allegations as they relate to him.
[11] The plaintiff’s granddaughter further says that she is advised by the plaintiff that “the evidence…is primarily documentary in nature which is available to her and that there has been no loss of documents or key witnesses that would prejudice the [d]efendant due to the delay in moving the action forward” (affidavit sworn May 8/15, at para. 17). How do I know that this is true? What documents are available? Are the documents in Russia or Canada? Where is the plaintiff’s affidavit of documents? Why have the documents not been produced? Who are the witnesses herein? Where are the witnesses? What, if anything, do they recall? The granddaughter’s evidence is bald and unsubstantiated.
[12] Relying on Talisman v. Stryjak, https://www.canlii.org/en/on/onsc/doc/2015/2015onsc549/2015onsc549.html, at para. https://www.canlii.org/en/on/onsc/doc/2015/2015onsc549/2015onsc549.html#par21, Mr. Thapar says that “a motion to strike ‘is a most drastic remedy’ and should be resorted to only as a ‘last resort’...It is only after all else has failed that an Order to strike pleadings be made; usually it is done only after allowing the defaulting party every opportunity to remedy the defaults in question”. I agree. I also agree with Mr. Thapar when he submits that “the adversarial structure of a proceeding should be maintained whenever possible” (Purcaru v. Purcaru, https://www.canlii.org/en/on/onca/doc/2010/2010onca92/2010onca92.html, at para. https://www.canlii.org/en/on/onca/doc/2010/2010onca92/2010onca92.html#par49).
[13] Is it appropriate on the facts and in the circumstances now before me that the plaintiff be denied the ability to advance her claims? Are the circumstances so exceptional that the plaintiff’s claim ought to be struck, such that no other remedy would suffice (Purcaru v. Purcaru, supra, at para. https://www.canlii.org/en/on/onca/doc/2010/2010onca92/2010onca92.html#par47)? My answer is: almost, but not quite. That said, and while I am not now dismissing the plaintiff’s claims, I do note that the plaintiff is perilously skirting the edge.
[14] Why do I say this? On the motion before me, I have a plaintiff who has shielded herself from view. She has provided no information as to her whereabouts, save Russia (having redacted her address from the documents filed). She has shielded her daughter, who was acting as her attorney when the costs Orders were made, from view (or her daughter has shielded herself from view), with her granddaughter now apparently acting as her attorney. Purporting to be impecunious, she transferred (for $2 each) two properties to her daughter—this after the motion (upon which the costs Order for $43,736.57 was based) was at least threatened. She has adduced no evidence as to how, if she is indigent, she could afford the two properties; and she has provided the court with no support for her contention that she is unable to borrow funds from any institutional lender to satisfy her costs obligations. Further, she has adduced no evidence as to any effort made to borrow funds from friends and family, including from the very daughter to whom the two properties were transferred (this daughter having held her power of attorney when the costs Orders were made and being the person who is said to be caring for the plaintiff).
[15] The plaintiff’s granddaughter indicates that the plaintiff is unable to travel and suggests that she not be required to suffer the stresses of litigation and, yet, she requests (without taking any steps to advance her claims and to substantiate her ability to do so) that a “quick case managed trial” be ordered (affidavit of Stefanie Klevtsova, sworn May 8/15).
[16] The evidence before me is weak, replete with contradictions and bald. And in all, it derives, largely, from someone who was found by Myers, J., to have taken “calculated and intentional” steps “to deceive” a judge of this court in respect of this litigation (https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2931/2014onsc2931.html, at para. https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2931/2014onsc2931.html#par12). That is the context within which this motion is being considered.
[17] In all, the plaintiff and her granddaughter and daughter have failed to persuade me that the plaintiff is indeed unable to satisfy her costs obligations and is (or has been) too ill and distressed to take steps to advance the litigation. The evidence adduced suggests that it is more likely than not that the pattern and pace of this litigation have been matters of choice.
[18] All this being so, I am giving the plaintiff one last chance to do what she ought to have done before now--failing which she risks having her claims dismissed, with costs. Specifically: the plaintiff shall have until September 21/15 to cure her default and pay the costs owing and/or make arrangements to attend to be examined in aid of execution by counsel for the defendant. If she is unable to travel for such examination, the examination can take place by videoconference—with the facility rental cost and costs of videoconferencing to be borne by the plaintiff. The examination in aid of execution, if required, is to take place on a day and at a time to be agreed upon by the parties and is to take place no later than October 23/15. These timelines can be varied by the parties, on consent.
[19] Only if the whole of the amount now outstanding is paid by September 21/15 (or such other outside date as the parties may agree is appropriate) will the plaintiff be excused from submitting to an examination in aid of execution. Any notice in respect of such examination in aid of execution may be served on plaintiff’s counsel or, if Mr. Thapar is not acting for the plaintiff at the time, on the plaintiff’s granddaughter, by courier and mail, at the granddaughter’s last known address (being the address at which she resided at the time this motion was heard or such other address as the granddaughter may advise). Also by September 21/15, the plaintiff is to serve an affidavit of documents and copies of her Schedule “A” documents.
[20] If the plaintiff fails to comply, fully and in all respects, with my Order, her action may be dismissed with costs. The defendant will be at liberty to move before me again, on notice, for a dismissal Order—this time relying on any new (additional) defaults.
[21] There are two issues that I need to address as a postscript. The first issue is the manner in which the defendant himself has advanced the litigation. While it is true, as Mr. Thapar points out, that the defendant has yet to and is to serve an affidavit of documents and Schedule “A” documents, I accept that it wasn’t until fairly recently, when Mr. Sidlofsky came on the record for him, that the defendant knew that he needed to move forward with the action. Active steps were taken by him to set aside an improperly obtained Order (obtained on a without-notice basis) and to collect the substantial costs awarded him. With the plaintiff having failed to serve an affidavit of documents and schedule discoveries, with the action having been dismissed on July 3/09 (and later reinstated), and with the plaintiff owing the defendant more than $45,000.00 in costs, I do not accept that the defendant’s failure to serve an affidavit of documents serves as a bar to his bringing his motion and my making a last chance Order (particularly given the defendant’s reliance on RR. 60.12 and 60.18 in his notice of motion).
[22] The second issue is my consideration of the evidence adduced by the defendant after the first return date for this motion, as to the transfers of property by the plaintiff in 2012. At the time it was adduced, I had not yet rendered my decision--with the hearing of the motion scheduled to be continued given that I had questions about some redacted documents filed on behalf of the plaintiff. The defendant’s fresh evidence was proffered on the Monday following the Friday May 8/15 hearing. I accept, as reasonable, that the defendant would not have known that the plaintiff would have been alleging impecuniosity at the time that his motion materials were filed. I note that the plaintiff’s original responding motion materials (in which impecuniosity is claimed) were not served until May 4/15. With the information and documentation that formed part of Mr. Pearl’s May 11/15 affidavit having been secured and disclosed by the defendant within only 5 business days after his receipt of the plaintiff’s first responding record and 1 business day after argument was commenced (and was to be continued), with the information and documentation being relevant and credible and directly responsive to issues raised by the plaintiff in her materials and in argument, and with the plaintiff having been given a fulsome opportunity to respond, I thought it appropriate to receive and rely on the defendant’s May 11/15 affidavit and I did so.
[23] Failing agreement as to the costs of this motion (including the costs of the steps taken to enforce outstanding costs Orders: para. 4 of the notice of motion), I may be spoken to.
August 6/15 ________________________
Master Abrams
[^1]: She has sworn the affidavits filed in response to the defendant’s motion.
[^2]: I note, though, that the plaintiff was well enough and able to instruct her granddaughter and inform her evidence. I note too that, in her affidavit sworn May 8/15, the plaintiff’s granddaughter says that her mother, the plaintiff’s former attorney, was unable to swear an affidavit because she is in Russia caring for her ailing mother. There is no independent evidence before me that this is so but, in any event, there is no reason that she could not have sworn an affidavit, even if she is in Russia, particularly when she too was available and able to instruct the plaintiff’s granddaughter as to the evidence to be given.
[^3]: Then too, and parenthetically, the plaintiff’s statement of expenses for 2014 and 2015 is not reliable. If the plaintiff has been in Russia since July 24/14 and is not expected to be able to fly back to Canada any time soon, how and why will she be required to pay for food, cable, medical expenses and telephone in 2015? Was the unsubstantiated list of expenses for 2014 for 6 months only? And if not, why would the plaintiff have paid for food, cable and telephone in Canada when she is said to have been in Russia during the second half of 2014?