CITATION: Francis v. Leo A. Seydel Limited, 2015 ONSC 5507
COURT FILE NO.: 00-CV-195388
DATE HEARD: September 2, 2015
ENDORSEMENT RELEASED: September 29, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIONNE RENEE FRANCIS v. LEO A. SEYDEL LIMITED operating as CANADIAN TIRE STORE #126
BEFORE: Master R. Dash
COUNSEL: Andrew R. Kerr, for the plaintiff Jason H. Goodman, for the defendant
REASONS FOR DECISION
[1] This is a motion to dismiss for delay under rule 24.01(1) and for breach of court orders under rule 60.12.
OVERVIEW
[2] In this action the plaintiff alleges that on August 4, 1999, while shopping in a Canadian Tire store, a heavy box fell from a shelf striking her on the head (the “Canadian Tire Action” or “this action”). She claims for physical, cognitive and psychological damages.
[3] She suffered further injuries and an exacerbation of her psychological symptoms as a result of an alleged assault and false imprisonment by the Peel Police on November 24, 2000 for which a separate action was commenced (the “Police Action”). On the same date as this motion, I heard a motion to dismiss the Police Action for delay. She also suffered further injuries in a motor vehicle accident on October 13, 2002, for which a claim for accident benefits was made and which went to arbitration.
[4] This action was commenced by statement of claim on August 10, 2000, approximately one year after the incident. Despite some difficulties and periods of delay and four changes of lawyer, discoveries were completed and the plaintiff set this action down for trial on January 19, 2007. That is when the action went “off the rails” mainly attributed to issues surrounding defence medical examinations.
[5] The saga began on June 23, 2008 when Master Linton made an order for the plaintiff to attend defence examinations by a psychiatrist and by an orthopaedic surgeon. There have been a number of motions and appeals heard and examinations arranged and cancelled since then. This included a stay of the action between April 2011 and March 2012 pending the plaintiff’s compliance. The plaintiff has yet to have an examination completed by any medical practitioner on behalf of the defendant with respect to her physical injuries, although she was examined by a psychiatrist. The problems initially revolved around the plaintiff’s refusal to be examined by male doctors because of severe anxiety issues, and then when examinations were finally arranged with female doctors, they could never be completed as a result of the behaviour of the plaintiff. A female orthopaedic surgeon and a female physiatrist both refused to complete their examination as a result of the plaintiff’s conduct.
[6] The action became further complicated when the plaintiff’s fourth lawyers obtained an order to be removed from the record in December 2008 that included a term that she sign an undertaking when picking up her file. A contempt motion arising out of her breach of that term was brought by her fourth lawyers and heard in September 2009. The plaintiff was self represented from December 2008 until her current lawyer was retained and filed a notice of appointment of lawyer in October 2012, although she did have some limited and in my view ineffective assistance from a lawyer who never went on the record. During this entire period the plaintiff failed to deliver a notice of intention to act in person although ordered to do so.
[7] During this period the court also heard several motions arising out of the plaintiff’s failure to answer undertakings from her discovery. I am advised that all undertakings have now been answered and the plaintiff has re-attended discovery with respect to answers to her undertakings. An unsuccessful mediation was conducted in January 2014.
[8] As a result of these ongoing problems and a failure to set a pre-trial and trial date, the action was twice struck from the trial list. It was restored once, but no motion has yet been brought to restore it a second time.
[9] I have been hearing all masters’ motions in this action since December 2008 and am very familiar with its history during the periods of greatest difficulty.
[10] It has been 15 years since the action was commenced and 16 years since the incident at the Canadian Tire store. The plaintiff was clearly at substantial risk of having her action dismissed for delay, particularly in light of the prejudice caused to the defendant by its inability to complete defence medical examinations, either contemporaneously or at all.
[11] Nonetheless, given the current status of the action and its readiness for trial once there has been a final defence medical examination, I have determined to exercise my discretion and give the plaintiff one final opportunity to see if she can co-operate in a manner that will allow the examination to be completed. The plaintiff is willing to re-attend but it will be a challenge to craft an order with terms that would have any possibility of allowing the defendant to have an effective medical examination conducted. I would like to try. If the plaintiff fails to comply with the terms, the action will be dismissed barring extraordinary circumstances.
[12] It is appropriate to set out a more detailed chronology of the progress of this action, both before and after it was set down for trial, not only for purposes of this motion, but also to serve as a historical record in the event of any future motions.
[13] During (and before) this period the plaintiff retained four different law firms:
(a) Capp Shupak: August 1999 to October 2000. When lawyer Allan Forgie left the firm, a lack of communication followed and the plaintiff lost confidence in the firm.
(b) Raphael & Partners: October 2000 to September 2002: Represented by Joseph Falconeri until he left the firm in December 2001 and Bert Raphael assumed conduct. Raphael obtained an order removing himself from the record on September 4, 2002.
(c) Plaintiff was self represented September 2002 to January 2003.
(d) Neinstein & Associates: January 2003 to March 2004 represented by Gary Neinstein and Bernadette Brissenden who later told the plaintiff they had a conflict of interest. By July 2003 the firm was effectively not acting for the plaintiff. Although the plaintiff signed a written retainer, the firm never went on record.
(e) Sidney Silverman of the Gerald Sternberg law office: March 2004 to December 2008
[14] The following sets out the chronology of the litigation from its commencement until it was set down for trial:
(a) October 1999 - Plaintiff’s then lawyers, Capp Shupak, received a medical report from the plaintiff’s family doctor, Dr. Veidlinger who had assessed her in August 1999. In July 2000 they received an updated report from Dr. Veidlinger and an MRI report.
(b) August 10, 2000 – The statement of claim was issued (and served August 24, 2000).
(c) December 11, 2000 - Raphael Partners delivered a notice of change of solicitor on behalf of the plaintiff.
(d) February and June 2001 – The plaintiff’s lawyer, Mr. Falconeri, received medical reports from a physiatrist (Dr. Perry Tepperman) and a psychiatrist (Dr. Lorne Switzman). These were independent medical examinations arranged by Mr. Falconeri. Both doctors were male.
(e) February 8, 2002 – Statement of defence was delivered by Bell, Temple and a request was made for the plaintiff’s affidavit of documents.
(f) September 4, 2002 – Order of Master Peterson removing Raphael Partners as lawyers of record over the objection of the plaintiff. (The provisions of rule 15.04(4)(e), (8) and (9) were not at the time part of the Rules and so the order contained no provision requiring the plaintiff to file a notice of intention to act in person or notice of appointment of solicitor within 30 days.)
(g) November 11, 2002 – The defendant served its affidavit of documents.
(h) January 10, 2003 – The defendant served a motion to dismiss for delay while plaintiff was without counsel (First Dismissal Motion).
(i) January 24, 2003 – The plaintiff retained Neinstein & Associates.
(j) January 29, 2003 – Master Sedgwick ordered the action dismissed for delay with costs of $2,400 payable forthwith. No-one attended the motion on behalf of the plaintiff due to an oversight at the Neinstein firm.
(k) February 19, 2003 – Neinstein & Associates advised the defendant that they were retained by the plaintiff (although they never delivered a notice of change of solicitor). Although the Neinstein firm assured the plaintiff that the order of Master Sedgwick would be “taken care of”, they took no steps to set aside the order.
(l) July 2, 2003 – Neinstein & Associates advised the defendant that the plaintiff would be retaining new counsel.
(m) March 9, 2004 - Sidney Silverman of the Gerald Sternberg law office advised the defendant that he would be representing the plaintiff and moving to set aside the order of Master Sedgwick. (It is unclear when Mr. Silverman served his notice of change of solicitor, but it was not filed until January 19, 2007.)
(n) March to May 2004 – Mr. Silverman wrote to defendant’s counsel three times with respect to setting aside the order of Master Sedgwick without response. Finally on May 5, 2004 he served the defendant with a motion to set aside the order. Cross-examinations on affidavits followed.
(o) July 7, 2004 – Master Sedgwick set aside his prior order respecting dismissal of action, but left intact his prior cost order of $2,400. He ordered additional costs of $700 payable in any event of the cause. Subsequent demands to pay the costs were not answered.
(p) August 4, 2004 – The plaintiff served her affidavit of documents.
(q) August 2004 – The defendant was demanding the costs ordered by Master Sedgwick but Mr. Silverman advised that the plaintiff was financially unable to pay. The defendant served a motion to dismiss for non-payment of costs.
(r) October 26, 2004 – Master Clark heard the defendant’s motion to dismiss for failure to pay the costs ordered by Master Sedgwick (Second Dismissal Motion).
(s) November 1, 2004 – Master Clark determined on the evidence that the plaintiff was impecunious and that the dismissal order arose due to the error of her then solicitor. He stayed all attempts to realize on the outstanding costs orders which would now become payable only when the action was disposed of. He ordered costs of the motion before him in the amount of $1,000 also payable when the action was disposed of. The defendant appealed and sought a dismissal of the action.
(t) February 16, 2005 – Justice Siegel heard the defendant’s appeal of Master Clark’s order.
(u) February 28, 2005 – Justice Siegel dismissed the defendant’s appeal and denied the defendant’s requested relief to dismiss the action. He agreed that the plaintiff was impecunious and expressed concern over the plaintiff’s access to justice. He found that the prejudice to the plaintiff from an order to pay the costs ordered by Master Sedgwick to be very much greater than the prejudice to the defendant if its motion to dismiss the action were denied. He ordered that subject to a change in the plaintiff’s financial position, costs awarded to the defendant “under any outstanding cost orders” shall be payable upon final disposition of the action. [It is unclear to me whether “any outstanding cost orders” refers to orders then outstanding, or to future costs of any interlocutory motions.] On September 19, 2005 Justice Siegel ordered each party to bear their own costs of the appeal.
(v) October 27, 2005 and March 9, 2006 – Plaintiff was examined for discovery. Counsel attending the discovery for the defendant apparently indicated that liability should not be an issue and agreed to recommend to his principal that settlement should be considered. It is unclear whether any settlement discussions took place.
(w) January 30, 2006 – The defendant was examined for discovery.
(x) January 19, 2007 – The trial record was filed and the action set down for trial
[15] During this period the plaintiff had been represented by two different lawyers on the record and one providing some unbundled assistance while she was self represented:
(a) Sidney Silverman of the Gerald Sternberg law office who had been representing the plaintiff since March 2004 went off the record in December 2008.
(b) The plaintiff was self represented from December 2008 until October 2012, with some assistance on motions from lawyer Joseph Kary on a limited scope retainer. Mr. Kary never went on record in the action. His assistance was of minimal value to the plaintiff. He failed to comply with a number of orders that directed him personally to take certain steps.
(c) The plaintiff has been represented by lawyer Andrew Kerr since October 2012.
[16] The following sets out the chronology of the litigation from the time it was set down for trial until the present. Much of this time was occupied with issues respecting defence medical examinations:
(a) July 2007 – Mr. Silverman had communications with defendant’s lawyers about the contents of the certification form to obtain a trial date. He completed the plaintiff’s portion and was anticipating that the defendant would return the revised certification form to him to submit to the trial office. It is unclear what happened to that form but since the action was subsequently struck from the list, it appears either that the defendant never returned the revised certification form to the plaintiff or that the plaintiff failed to send the form to the trial office, or if it was sent, no dates for pre-trial and trial were selected.
(b) August 2007 – There was some discussion between counsel as to choice of mediator, but it does not appear that a mediation was ever scheduled, having been overtaken by the defendant’s request for defence medical examinations.
(c) April-May 2008 – The defendant attempted three times (by correspondence to Mr. Silverman) to arrange a defence psychiatric examination with Dr. Richard Hershberg and a defence orthopaedic examination with Dr. Hugh Cameron, but the plaintiff failed to confirm her attendance, resulting in the defendant bringing a motion to compel her attendance. The plaintiff was ill in April 2008 and Mr. Silverman was unable to get in touch with her for a time.
(d) May 5, 2008 – Mr. Silverman finally was able to speak to his client and he advised defendant’s counsel that the plaintiff “is prepared to submit to medical examination. However, she insists that she will only be examined by a female physician. Apparently male physicians make her extremely uncomfortable.” As the appointments were “still some time away”, he requested that the defendant accommodate the plaintiff’s request. The defendant’s lawyer advised that he could choose any examiner he wanted and proceeded to serve and file its motion record on May 28, 2008.
(e) June 23, 2008 – Master Linton heard the motion for defence medical examinations. The plaintiff had argued that she be examined only by female doctors because of her anxiety in being examined by a male. Master Linton found that the plaintiff would experience discomfort being examined by male doctors but not harm. He therefore ordered the plaintiff to attend the defendant’s choice of practitioners, both of whom were male doctors, namely Dr. Hershberg on August 19, 2008 for a defence psychiatric examination and Dr. Cameron on July 23, 2008 for a defence orthopaedic examination. He ordered the plaintiff to pay $1,700 costs payable when the cause has been determined. Finally he ordered that the Canadian Tire Action and the Police Action be tried together or one after the other.
(f) July – August 2008 – The plaintiff failed to attend both examinations. She continued to insist that the thought of an examination by a male doctor caused her great stress and anxiety which in turn resulted in physical symptoms (as discussed later in this endorsement) but that she would attend a female doctor. Cancellation fees were incurred. The defendant brought a motion to dismiss the action for breach of Master Linton’s order, returnable December 4, 2008 (Third Dismissal Motion).
(g) Sometime in 2008 (date not in evidence) – Action was struck from the trial list for failing to set pre-trial and trial dates.
(h) December 4, 2008 – The Third Dismissal Motion was returnable before me. Ms. Francis appeared personally with Mr. Silverman who indicated he was moving on December 10 to be removed from the record. Ms. Francis indicated she would be seeking a new lawyer and required an adjournment. I noted based on the evidence and submissions before me and considering Master Linton’s order: “I have some concerns whether her increased anxiety may in fact amount to harm, but (a) she did not appeal, although she indicates she instructed Mr. Silverman to appeal on June 23 and (b) there is no motion before me today to vary Master Linton’s order.” I granted an adjournment to February 19, 2009 to give the plaintiff an opportunity to retain new counsel and if so instructed to move to extend the time to appeal and/or vary Master Linton’s order. Although not formally transferring the action into Rule 77 case management, I seized myself of all motions within the jurisdiction of a master.
(i) December 10, 2008 – I removed the law firm of Gerald Sternberg as solicitor of record. In accordance with rule 15.04(8), the plaintiff was required to file a notice of intention to act in person or notice of appointment of solicitor within 30 days of service of the order. I ordered the law firm to provide Ms. Francis with her file upon her signing a specific undertaking to protect the lawyer’s accounts.
(j) December 18, 2008 – The plaintiff retrieved her file from a part time legal assistant in Mr. Sternberg’s office without signing the undertaking as ordered. Although there is a dispute as to how that transpired, a judge later determined that the plaintiff removed the file over the objections of the legal assistant and refused to sign the undertaking that had been prepared. The Sternberg firm brought a contempt motion against the plaintiff.
(k) January 30, 2009 – The Sternberg firm filed an affidavit of service on the plaintiff of my order removing them as solicitor of record.
(l) February 19, 2009 – The previously adjourned Third Dismissal Motion (for breach of Master Linton’s order) was heard by me. The plaintiff was self represented. I dismissed the motion, but since there was no motion to vary the order of Master Linton and no affidavit evidence from the plaintiff, I ordered that the plaintiff comply with Master Linton’s order and attend defence medical examinations with Drs. Hershberg and Cameron on 30 days notice. I ordered the plaintiff to pay the cancellation fees of Dr. Cameron ($300) and Dr. Hershberg ($3,150) within 120 days plus costs of the motion fixed at $300 within 60 days.
(m) March 6, 2009 – The plaintiff, acting for herself, served a notice of appeal of my order and a notice of motion to extend the time to appeal the order of Master Linton or to vary the orders of Master Linton and myself, both returnable before a judge on May 14, 2009.
(n) May 12, 2009 – The plaintiff unilaterally cancelled her motion and appeal set for May 14 and rescheduled same for July 23, 2009. (The plaintiff claims she had to cancel the motion since her draft order from February 19 had not been returned.)
(o) July 21, 2009 – The plaintiff again unilaterally rescheduled the motion and appeal to November 12, 2009. (The plaintiff claims she did this because she was not able to get her motion materials completed.)
(p) September 22, 2009 – Justice Pitt heard the contempt motion brought by the Sternberg firm (for failing to sign the undertaking).
(q) October 16, 2009 – Justice Pitt ordered the plaintiff to sign the undertaking as had been ordered by me, failing which she be imprisoned for two days. The undertaking was signed on October 23, 2009 “under duress”. On December 29, 2009, Justice Pitt ordered the plaintiff to pay costs to her former lawyers of $1,500 within 60 days.
(r) November 9, 2009 – Lawyer Joseph Kary advised he would be representing the plaintiff on her appeal and motion to vary the orders of Master Linton and myself respecting the defence medical examinations. Mr. Kary never at any time went on the record.
(s) November 12, 2009 – The motion was confirmed late and was not on a list. Despite dates having been provided by defendant’s lawyer, Mr. Kary failed to reschedule the motion.
(t) November 19, 2009 – Given the delay in hearing the plaintiff’s motion, the defendant rescheduled defence medical examination appointments with Dr. Hershberg (for February 12, 2010) and with Dr. Cameron (for March 25, 2010).
(u) February 9, 2010 – Mr. Kary advised that the plaintiff would not be attending the medical examinations (because they were with male doctors). The appointment with Dr. Cameron was not cancelled.
(v) February 12, 2010 – The plaintiff failed to attend the examination with Dr. Cameron. The appointment with Dr. Hershberg was cancelled to avoid a cancellation fee. The defendant brought a motion to dismiss the action for failure to comply with the orders of Master Linton and myself to attend for defence medical examinations returnable on April 1, 2010 (Fourth Dismissal Motion).
(w) April 1, 2010 – Fourth Dismissal Motion was returned before Master Brott (notwithstanding that I was seized of all masters’ motions). The plaintiff appeared in person, reiterated her position that she was uncomfortable being examined by male doctors and requested an adjournment. Master Brott noted that no date had yet been set for the plaintiff’s appeal and motion to vary the defence medical orders and in fact no materials had ever been served by the plaintiff in support of that motion and appeal. Master Brott fixed the return date of the motion to appeal/vary before a judge for June 17, 2010 with a timetable including plaintiff’s materials by May 21, 2010. She adjourned the dismissal motion to be heard by me on July 16, 2010. Although Mr. Kary was not present, the plaintiff advised Master Brott he would be representing her on all motions respecting the defence medicals.
(x) May 21, 2010 – The plaintiff did not serve her materials as ordered and so the June 17 appeal date was vacated. It was later booked for September 3, 2010.
(y) July 16, 2010 – I adjourned the Fourth Dismissal Motion to September 22, 2010 to allow the appeal to be heard.
(z) September 3, 2010 – Justice Sanderson began hearing the appeal/motion to vary respecting the defence medical examinations, but adjourned for facta. She required a report from counsel by October 1, 2010 if a re-attendance had not been scheduled. (That deadline was not met and Mr. Kary did not request a new date until May 25, 2011.)
(aa) September 22, 2010 – I adjourned the Fourth Dismissal Motion to January 27, 2011 as the hearing of the appeal had not yet been completed.
(bb) October 5, 2010 – The defendant’s lawyer finally relented and agreed to arrange defence medical examinations with female doctors. (This concession by the defendant’s lawyer may have been made as early as September 3 during the hearing before Justice Sanderson.) He scheduled a defence orthopaedic examination with Dr. Erin Boynton for January 6, 2011 and a defence psychiatric examination with Dr. Xenia Kirkpatrick for December 13, 2011 and advised Mr. Kary of those dates. He asked Mr. Kary to confirm the plaintiff’s attendance.
(cc) January 5, 2011 - Mr. Kary failed to confirm that Ms. Francis would attend until the eve of the scheduled date with Dr. Boynton and as a result that examination had been cancelled and a cancellation fee of $1,878 charged. The examination was later rescheduled for March 28, 2011.
(dd) January 27, 2011 – I further adjourned the Fourth Dismissal Motion to April 12, 2012. On the understanding that the variation could now proceed on consent, I ordered Mr. Kary to make best efforts within 10 days to obtain a return date with Justice Sanderson so that an order could be made. (Apparently the parties were having difficulty arranging a date with Justice Sanderson.)
(ee) March 28, 2011 – The plaintiff attended for her defence orthopaedic examination with Dr. Boynton. Dr. Boynton was unable to complete her examination of Ms. Francis. Dr. Boynton reported that when she brought Ms. Francis into the examining room, Ms. Francis said the doctor was late. The doctor explained she was reviewing her medical records which “seemed to arouse her suspicions”. She wanted to know which records they were, who had sent them and stated she wanted to see them. The doctor said she was welcome to look at them but she first wanted to explain the assessment process to her. As Dr. Boynton was explaining the process, the plaintiff continued to question her about who sent her the records and where she got them “in a way that made me feel uncomfortable”. Dr. Boynton told Ms. Francis she was required to be objective and had signed a Form 53. The plaintiff then wanted to see and copy the Form 53. Dr. Botnton told the plaintiff that she was not used to patients demanding to see the records immediately upon entering the examining room to which the plaintiff responded she was asking, not demanding. The doctor felt the plaintiff’s “perception of my words was resulting in them potentially being misconstrued. I therefore wanted to get a witness to any further interaction” to which Ms. Francis responded, “If you have a witness, I have a witness.” Dr. Boynton then called defendant’s counsel and it was agreed to postpone the examination. Ms. Francis wanted to know to whom the doctor had spoken and this was answered. Dr. Boynton then said the examination would be rescheduled to a time when witnesses could be available, to which the plaintiff expressed displeasure. Dr. Boynton concluded: “Due to Ms. Francis’ suspicious nature, I did not feel confident in our ability to establish a relationship that would be conducive to obtaining the appropriate information to help resolve the issue dating to 4 August 1999.” A further fee of $1,130 was incurred. (Ms. Francis in her affidavit says she never had a problem with Dr. Boynton or refused to participate. She just wanted to see what documentation had been provided to the doctor to “ensure it was complete”.) Dr. Boynton refused to book a new appointment to examine Ms. Francis.
(ff) April 12, 2011 – On the return of the Fourth Dismissal Motion I stayed the action to give the plaintiff an opportunity to attend defence medical examinations before her action would be permitted to proceed. I indicated to defence counsel that he should attempt to reschedule an appointment with Doctor Boynton, but if Dr. Boynton would not see the plaintiff, he could reschedule with Dr. Cameron and arrange for a female chaperone. The stay was without prejudice to either party moving to lift the stay in order to proceed with the action (if the plaintiff attended her defence medical) or dismiss the action (if she failed to attend) as the case may be. The stay was not to be a bar to the plaintiff continuing with her appeal/motion to vary to a judge. At the motion, the plaintiff served a notice of intention to act in person, but it has never been filed (despite many reminders given to her by the court).
(gg) May 10, 2011 – The defendant had tried to arrange a new appointment with Dr. Boynton, but she refused to see the plaintiff again. The defendant’s lawyer in a subsequent affidavit stated: “We do not have confidence in the opinions of any other female orthopaedic surgeon to provide an opinion on the plaintiff’s physical injuries.” As a result the defendant advised Mr. Kary and the plaintiff that a new date had been arranged for the plaintiff to see Dr. Cameron on September 6, 2011. The defendant arranged for a female chaperone to be present during Dr. Cameron’s examination.
(hh) May 25, 2011 – Mr. Kary finally wrote to Justice Sanderson to request a hearing date for the appeal/motion to vary as the tentative settlement of the issue respecting a female doctor could not “be finalized”.
(ii) August 19, 2011- The defendant sent the plaintiff a copy of undertaking charts with respect to unanswered undertakings from her examinations for discovery in 2005 and 2006.
(jj) September 6, 2011 – The plaintiff failed to attend the appointment with Dr. Cameron and a further $300 cancellation fee was incurred.
(kk) September 23, 2011 – The defendant booked a 2 hour motion to lift the stay, dismiss the action for delay and breach of court orders (Fifth Dismissal Motion), compel attendance at a defence medical examination, compel compliance with undertakings, answer questions refused, produce clinical notes from her treating psychologist, re-attend examination for discovery to answer follow up questions, costs of the prior motion and other relief returnable December 8, 2011. (The “Omnibus Motion”)
(ll) October and November 2011 – The defendant asked Mr. Kary to review the outstanding undertakings and advise if there were any concerns.
(mm) December 8, 2011 – The defendant’s Omnibus Motion was returnable before me. I determined that it would premature to lift the stay before the appeal/motion to vary was heard and determined by Justice Sanderson since if the appeal were successful, an examination ordered before a female orthopaedic specialist and the plaintiff attended there would be no convincing reason to dismiss for delay. The plaintiff also stated that she would attend her appointment with the female psychiatrist Dr. Kirkpatrick on December 11 as had been arranged. I warned the plaintiff that if she failed to attend or failed to answer the doctor’s questions, whether or not she believed they were relevant, that would weigh heavily against her on the dismissal motion. I indicated that if her appeal with respect to Dr. Cameron was unsuccessful, she would have to attend with whatever safeguards were deemed appropriate or her action may be dismissed. I reminded the plaintiff that her action had been struck from the trial list and she needed to move immediately to restore the action to the trial list. I adjourned to a special half day hearing on March 23, 2012.
(nn) December 13, 2011 – It appears that the defence psychiatric examination with Dr. Kirkpatrick proceeded as scheduled. I have no evidence that any problems arose during the examination.
(oo) February 6, 2012 – The plaintiff’s appeal/motion to vary was heard. Justice Sanderson. noted that the parties had agreed that the plaintiff would be examined by two female doctors and recounted some of the problems that occurred during the examination by Dr. Boynton. She noted that the plaintiff was prepared to go back to Dr. Boyton for assessment but that Dr. Boynton would not see the plaintiff again. Justice Sanderson could not understand why Dr. Boynton was taking that position. She stated however, “If Dr. Boynton will not relent, I do not accept the submission of counsel for the defendant that one of the other 14 or 15 qualified female orthopaedic specialists in the GTA could not conduct an independent examination. I accept that it is important for the defendant to have confidence in its independent examiner. If it cannot find a female orthopaedic specialist in the GTA it is free to choose another elsewhere if it is prepared to pay the associated travel costs.” Justice Sanderson added that as soon as the stay is lifted the plaintiff should satisfy her undertakings as soon as possible.
(pp) March 23, 2012 – The defendant’s Omnibus Motion (including the Fifth Dismissal Motion) came on before me for hearing. By this point the defendant had determined to arrange an appointment with a female physiatrist, Dr. Rajka Soric, in lieu of a defence orthopaedic specialist, to assess the plaintiff’s physical injuries. I ordered that the stay be lifted and that the plaintiff attend for examination by Dr. Soric on May 31, 2012. I partially dealt with the undertakings issue by ordering on consent that the plaintiff sign authorizations to permit the defendant’s lawyers to obtain various documents from non-parties. (Until that point the defendant’s counsel refused to permit undertakings to obtain non-party records to be answered by way of providing authorizations since the undertaking by the plaintiff was to “request and provide” the records herself.) The plaintiff resisted providing other non-party records unless they were vetted by her. As a result I ordered Mr. Kary to request those records within 14 days, vet them and then provide copies to the defendant together with a list of documents not provided and the reasons why they were privileged or not relevant. The balance of the motion together with the issues of restoring the action to the trial list and mediation were adjourned to a special appointment on May 4, 2012.
(qq) May 4, 2012 – Mr. Kary had not complied with my order to request non-party records. (The plaintiff also states that Mr. Kary failed to provide her with required documentation and information and that this was not his area of expertise.) I ordered that both lawyers provide copies of letters of request to and responses from non-parties by May 25, 2012, that all rule 30.10 motions be heard by August 27, 2012, that the plaintiff attend for further examination for discovery on her answers to undertakings by October 31, 2012 and further undertakings answered within 30 days. I set a procedure for choosing a mediator and mediation date and payment of mediator’s fees and that the mediation be conducted as early as possible but no later than April 30, 2013. I ordered that the plaintiff serve and file her notice of intention to act in person or notice of appointment of lawyer by May 18, 2012. Finally, I granted leave to the plaintiff to restore the action to the trial list. I ordered no costs of the motion.
(rr) May 23, 2012 – The plaintiff advised she was not feeling well and would not attend the appointment with Dr. Soric on May 31 but she “might” be willing to reschedule.
(ss) July 2012 - The plaintiff attempted to reschedule directly with Dr. Soric, but defendant’s counsel advised that any appointments would be booked only by them, and in any event would not be scheduled until the issue was addressed by the master. A motion to dismiss the action for breach of court orders (Sixth Dismissal Motion) and for other relief was made returnable before me on October 12, 2012.
(tt) October 10, 2012 – After having twice attended the court office to requisition and examine the court file and discovering that the original trial record could not be located in the file, the plaintiff filed a duplicate trial record. Although the plaintiff recalls the court telling her she needed the original record, the duplicate in fact was accepted by the court office for purposes of restoring the action to the trial list. Ms. Francis picked up the certification form (to set pre-trial and trial dates) from the trial office on the same date. The duplicate trial record was then sent to the trial office in order that trial dates be set. Ms. Francis does not deny picking up the certification form but claims it was a blank form. There is no evidence that the customary letter from the trial office setting out the date by which trial dates must be set was included on the blank form.
(uu) October 11, 2012 – Lawyer Andrew Kerr, having been retained by the plaintiff, served a notice of appointment of lawyer and filed it the next day. This was the first document filed to comply with my order of December 10, 2008 removing the Sternberg firm as plaintiff’s lawyer of record and rule 15.04(8). It was filed almost four years past the deadline in the order and the rule. Mr Kerr, however, remains lawyer of record for the plaintiff to the present day.
(vv) October 12, 2012 – The defendant’s Sixth Dismissal Motion came before me. Certain relief was withdrawn on consent including the dismissal of the action for breach of court orders, holding the plaintiff in contempt and relief against Mr. Kary personally. Consent orders were made for production by the plaintiff of relevant documents including invoices and billings to support her loss of income claim and to request within 45 days, vet and produce other documents. On consent I ordered a revised timeline for further discoveries (October 31, 2012) and mediation (by February 28, 2014). I ordered that the plaintiff attend for her examination by defence physiatrist Dr. Soric on January 17, 2013. Pre-judgment interest was suspended from November 25, 2011 until the plaintiff complied with certain terms of the order. The plaintiff was ordered to pay the $400 cancellation fee in the cause and $2,000 costs of the motion to the defendant in any event of the cause without prejudice to her seeking reimbursement from Mr. Kary (as Mr. Kary had failed to comply with production orders directed to him without advising the plaintiff or the defendants).
(ww) January 17, 2013 – The plaintiff attended for her defence medical examination with Dr. Soric. Unfortunately, as with Dr. Boynton, Dr. Soric was unable to complete her examination because of the behaviour of the plaintiff. After complaining that Dr. Soric was 20 minutes late, the plaintiff “questioned me every step of the way and was extremely defensive and insulting. She insisted upon reading the referral letter and reviewing very extensive documentation” sent by defendant’s lawyers although Dr. Soric said that was not an option due to time constraints. The plaintiff modified the consent to include a copy to Mr. Kerr before she would sign it and “insisted upon initialing and dating every single page of the index” for each brief and the referral letter. After commenting on bad experiences with other assessors, Ms. Francis “repeatedly implied that my assessment would be biased and the report would not be in her favour.” The interview was difficult, “interrupted by her inappropriate and frequently offensive comments”. When Dr. Soric said there was now not enough time left to examine her, this infuriated Ms. Francis who indicated that Dr. Soric should allow as much time for the assessment as the individual person required. Although an hour was set aside for the interview and assessment “which is indeed a sufficient amount of time”, in this case over the course of one hour and seventeen minutes Dr. Soric barely had the time to obtain the interview. Although Dr. Soric was able to comment on the plaintiff’s gait and a few observations, she could not “render an opinion regarding her condition”. Dr. Soric concluded as follows: “I would appreciate it if you would refer her to a different physiatrist should you decide that you require a physiatric assessment.”
(xx) May 28, 2013- Laxton, Glass served a notice of change of lawyers to replace Bell, Temple as lawyers for the defendant.
(yy) July 4, 2013 – The defendant continued its examination for discovery of the plaintiff.
(zz) October 2013 – Mr. Kerr’s office began writing for non-party records to satisfy the plaintiff’s undertakings. Undertakings were answered as received.
(aaa) January 6, 2014 – Mediation was conducted but it did not result in a settlement.
(bbb) June 30, 2014 – The action was struck from the trial list for a second time, for failure to set pre-trial and trial dates.
(ccc) March 5, 2015 – The defendant’s lawyers asked Mr. Kerr for a date for this motion to dismiss for delay.
(ddd) March 20, 2015 - Mr. Kerr requested the defendant’s consent to restore the action to the trial list. The only response was on April 29 when defendant’s counsel advised of a date for this dismissal motion. Mr. Kerr has never served a motion to restore to the trial list.
(eee) March to May 2015 – The plaintiff’s lawyers continued to request and provide answers to undertakings including hospital records, clinical notes and records of Dr. Mohammed, her Ontario School Record, her ODSP file, an updated OHIP summary, accident benefits file. (It was later put in evidence at the September 2015 motion that the plaintiff had also produced clinical notes and records from her treating psychologist, Dr. Gloria Fiati and orthopaedic records respecting a knee injury. She had provided tax returns to 2004, but had not filed returns since.
(fff) April 29, 2015 – The defendant served a notice of motion to dismiss the action for delay, or in the alternative for a timetable (the Seventh Dismissal Motion) returnable June 25, 2015. That date was lost when the defendant failed to serve and file a notice of motion within 10 days.
(ggg) July 31, 2015 – The defendant served its motion record returnable before me on September 2, 2015. The notice of motion was amended to seek a dismissal for delay, in the alternative for an order holding the plaintiff in contempt for failing to comply with court orders (for which a master has no jurisdiction) and in the further alternative for a timetable and an order to answer undertakings. (The plaintiff served a responding record on August 27 and the defendant served a supplementary affidavit on September 1. There were no cross-examinations.)
(hhh) September 2, 2015 – I heard the defendant’s Seventh Dismissal Motion. (Separately, but on the same motions list, I heard a motion by the defendants in the Police Action to dismiss the Police Action for delay.) The defendant indicated that it was satisfied that the plaintiff’s undertakings had been answered or best efforts made and was seeking no relief with respect to the undertakings. The decision on both motions was reserved.
BASIS FOR MOTION
[17] A defendant may move to dismiss an action for delay if it can meet one of the gateway criteria in rule 24.01(1). The relevant portions of rule 24.01 for purposes of this motion are as follows:
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(c) to set the action down for trial within six months after the close of pleadings; or
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
[18] The defendant has framed its motion under rule 24.01(1)(c) – failing to set the action down for trial within six months of the close of pleadings. It is strange for the defendant to rely on that rule since the action was set down for trial on January 19, 2007, more than 8 ½ years ago. Nonetheless, pleadings had been closed in February 2002 and the action was set down almost 5 years later and not “within six months”, thus meeting the gateway criterion.
[19] It was also agreed that I could consider the motion as if it had been brought under rule 24.01(1)(e) – failing to move for leave to restore the action to the trial list within 30 days after it was struck. The action was struck from the trial list (for the second time) on June 30, 2014. More than 30 days have passed and no motion has yet been brought to restore it to the trial list, thus meeting the gateway criterion under rule 24.01(1)(e).
THE TEST
[20] The test for dismissal for delay[^1] has been recently restated by the court of appeal in Langenecker v. Sauve as follows:
It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. [^2]
[21] This is usually a “high threshold” for a moving defendant to establish. Courts are reluctant to dismiss actions under rule 24.01 because the timelines which permit a motion to be brought are short, for example not setting an action down within 6 months after the close of pleadings or not moving to restore an action within 30 days.[^3] Of course in the matter before me, despite the short timelines permitted for a motion to dismiss under the rules, it has been 15 years since the action was commenced. It was 5 years after the close of pleadings before the action was set down for trial. It is now over 8½ years since the action was set down and no trial dates have been set. It has been twice struck from the trial list and most recently was struck over a year ago and no motion has been brought to restore it to the trial list.
[22] Langenecker describes the two types of cases which would merit a dismissal for delay – either the delay is intentional and contumelious or alternatively the delay is inordinate and inexcusable resulting in prejudice to the defendant in obtaining a fair trial. The defendant says that in this matter it has satisfied both alternative bases and the court could dismiss the action for delay under either ground.
IS THE DELAY INTENTIONAL AND CONTUMELIOUS?
[23] In the first type of case, the delay must be intentional and contumelious:
The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders.[^4]
Is the Delay Intentional?
[24] The defendant argues that the plaintiff has intentionally delayed the action on multiple occasions. The onus is on the plaintiff to show that the delay was not intentional and in the absence of an explanation from the plaintiff, it is to be presumed that the delay was intentional;[^5] however this applies to contumelious delay and does not require an explanation of every delay that passes in a lawsuit.[^6] The defendant also argues that the plaintiff’s behaviour is contumelious and that she has demonstrated contempt for these court proceedings by her actions, inactions and ignoring multiple orders of the court.
[25] While there has clearly been inordinate delay in this proceeding, the record in the action, and the explanation provided by the plaintiff do not substantiate that the delay was either intentional or contumelious.
[26] As examples of delay, the defendant points to the 15 months that elapsed between the dismissal by Master Sedgwick on January 29, 2003 and the motion to reinstate, however this was during a time when she parted ways with her lawyers and she sought a new lawyer. Once Mr. Silverman was retained the motion was brought promptly.
[27] The defendant points to the delay between service of the notice of appeal on March 6, 2009 of the orders of Master Linton and myself and its ultimate hearing on February 6, 2012. In the interim, the defendant had arranged new defence medical examinations with male doctors in accordance with the orders under appeal and brought a motion to dismiss for failure to comply with the orders on April 2, 2009. The defendant complains that motion had to be adjourned a number of times to permit the plaintiff to bring the appeal on for hearing. Justice Sanderson started the hearing of the appeal on September 3, 2010 (after the plaintiff unilaterally adjourned it several times) but Justice Sanderson adjourned it again and it was not finally disposed of until February 6, 2012.
[28] In my view this delay, while inordinate, was not intentional delay on the part of the plaintiff but rather resulted from the plaintiff being self represented throughout this period, although she had assistance from time to time from Mr. Kary who failed to take the necessary steps to get the matter back on track. The defendant’s lawyers also contributed to this delay by their dogged insistence on compelling the plaintiff’s attendance before male doctors pursuant to their entitlement to have examinations by doctors of their choice despite the plaintiff’s pleas that she be examined by female doctors.
Contumelious Delay and Breach of Court Orders
[29] The defendant asserts that the plaintiff’s breach of court orders was contumelious and deliberate, showing disrespect for the court and a refusal to be bound by its orders. Since the defendant is also seeking a dismissal under rule 60.12 for failing to comply with interlocutory orders of the court, the analysis that follows shall apply to both grounds for relief.
[30] The primary thrust of the defendant’s argument that the plaintiff has failed to comply with court orders and that her behaviour is contumelious centers on court orders to attend defence medical assessments with doctors chosen by the defendant. Those doctors happened to be male doctors.
[31] In particular, on June 23, 2008 Master Linton ordered that the plaintiff attend assessments with Dr. Cameron, a male orthopaedic specialist and Dr. Hershberg, a male psychiatrist. He did not accept that the plaintiff would be harmed by such assessments. She intentionally did not attend for those assessments. On February 19, 2009 (on the defendant’s motion to dismiss for breach of that order) I ordered the plaintiff to comply with Master Linton’s order and attend examinations with Drs. Cameron and Hershberg. Although I had earlier (on December 4, 2008) indicated a concern that the plaintiff may in fact suffer harm and adjourned the motion to permit her to retain counsel and either appeal Master Linton’s order or move to vary it, by the time of the new return date on February 19, there had been no appeal or motion to vary scheduled.
[32] The plaintiff has explained her behaviour in refusing to attend appointments with the male doctors. In her affidavit, the plaintiff states:
I made it clear that I was not comfortable attending appointments with male doctors whom I do not know. Doing so causes me great stress and anxiety. I will not voluntarily put myself in a vulnerable position with a male of any kind, especially one in a position or authority whom I do not know or trust. The issue dates back to the year 2000 when I was assaulted by male police officers. Which has gotten worse over the course of time. Just the thought of being examined by male physicians causes me to experience nausea, diarrhea, sleeplessness from overwhelming anxiety, heart palpitations and nosebleeds. During these periods of intense anxiety, I experience heightened pain in my neck and back as a result of the stress...I was always willing to attend defence medical appointments, however I required female assessors.
My refusal to attend the appointments with male physicians was not precipitated by a desire to obstruct the defendant’ preparation for trial...but to protect myself against physical and emotional harm.
[33] In my view the plaintiff was not being contemptuous of the court orders to attend appointments with male doctors. If she had had proper legal representation at the time Master Linton and I made our orders and if proper affidavit evidence had been proffered then, as now, the result may have been very different. While clearly a source of delay, her refusal to see male doctors was not contemptuous of the court orders, but rather self preservation of her physical and mental health. I am reminded that ultimately the defendant relented and set up appointments with female doctors (although that too had problems to be discussed) and that Justice Sanderson ultimately allowed the appeal and ordered examination with a female doctor.
[34] The defendant also complains that the plaintiff’s behaviour with the two female doctors intentionally delayed the action. Clearly the plaintiff failed to behave as a reasonable litigant during her examinations by Dr. Boynton and Dr. Soric. She made a point of commenting on both doctors being late. She questioned the doctors as to the medical brief sent to them, wanted to know who sent them and wanted to review them during the interview. She questioned Dr. Boynton about the Form 53 and altered Dr. Soric’s consent form. She acted as if she were suspicious of both doctors. When Dr Boynton indicated she wanted a witness because the plaintiff appeared to misconstrue Dr. Boynton’s words, the plaintiff retorted “If you have a witness, I have a witness.’ She questioned Dr. Soric “every step of the way and was extremely defensive and insulting”. She told Dr. Soric her report would be biased. Neither doctor had the time to complete the examination and neither doctor would rebook an appointment with her.
[35] I note however that the appointment with Dr. Boynton was not ordered by the court. The defendant arranged the appointment with Dr. Boynton after the adjournment by Justice Sanderson and the plaintiff attended voluntarily, without court order. Upon the return of the motion, Justice Sanderson ordered that the defendant find another female orthopaedic specialist if Dr. Boynton would not set up another appointment. The defendant’s lawyers took it upon themselves to instead set up an appointment with Dr. Soric, a physiatrist. The plaintiff agreed to attend and on October 12, 2012 I ordered her to attend Dr. Soric on January 17, 2013. Although she gave notice that she could not attend due to illness on that date, she later attended with Dr. Soric.
[36] The plaintiff states that when she attended the examination with Dr. Boynton, “I questioned Dr. Boynton about what was the medical documentation she had in her possession...and requested to see it so I could ensure it was complete”. She says she never had a problem with Dr. Boynton and never refused to participate, adding “I just wanted to see what documentation she had been provided and she was intending to rely on.” There is no evidence from the plaintiff about her interaction with Dr. Soric, but I presume it would have been similar.
[37] Ms. Francis has demonstrated in her appearances before me that she is an intelligent and articulate person and understands the court’s instructions. Her appearances also confirmed to me that she is an overly suspicious person. She has demonstrated on more than one occasion that when she hears something she disagrees with, she becomes argumentative and confrontational. Even when she appeared with Mr. Kary she would often rise and demand to speak directly to the court. This often makes her appear unreasonable. She is however insightful as to her behaviour and has expressed it as follows:
Because of everything that I have been put through in the litigation and life in general, I am suspicious of people’s actions and words. Especially the actions and words of the lawyers from Bell Temple...Also, if I feel challenged, I will stand up for myself, speak for myself...which some may view as being argumentative and/or confrontational.
She believes that the defendant’s former lawyers have taken advantage of situations, abused the litigation process to their advantage and made every effort to dismiss and derail her action. When the trial record could not be found in the court file, she was even suspicious that he defendant’s former lawyers removed it to cause her a hard time.
[38] I totally disagree with the plaintiff’s characterization of the defendant’s former lawyers. In my view, other than maintaining for a long time that the plaintiff be examined by doctors of their choice who happened to be male and refusing to consider female doctors, the lawyers behaved in an exemplary fashion. Although somewhat aggressive, the lawyers were within their rights to bring motions to dismiss as a result of the plaintiff’s non-compliance and resulting delay in the action. I note that almost all of these issues arose while the plaintiff was self represented.
[39] Nonetheless, the plaintiff’s suspicious nature and confrontational style have gotten her into considerable difficulties in this litigation. This does not however make her behaviour contumelious or the delay intentional so as to satisfy the first branch of the test for dismissal for delay.
[40] There has never been an order governing how the defence medical examinations should be conducted or how the plaintiff should deport herself during the examinations. An order should be fashioned that has the best chance of completing an effective defence medical examination of the plaintiff in such manner as medically determined by the examining doctor while allaying the plaintiff’s suspicions, as unreasonable as they may be, and avoiding confrontational behaviour.
[41] The defendant also raises as further examples of contumelious behaviour the plaintiff setting and adjourning dates for her appeal unilaterally without consulting the defendant and her breach of timetables (such as Master Brott’s order of April 1, 2010 to serve materials by May 21, 2010). In my view those breaches of the rules and orders are attributed to her self- representation at the time and are not serious breaches to warrant the extreme remedy of dismissal. I trust that with Mr. Kerr at the helm since October 2012, there will be compliance with procedural rules and orders.
[42] The defendant alleges that the plaintiff was also in breach of various production and other orders, but my review indicates that the referenced breaches were that of Mr. Kary personally, and not the plaintiff. For example, Mr. Kary breached Justice Sanderson’s order of September 3, 2010 that he report to her by October 1, 2010, my order of March 23, 2012 that Mr. Kary request, vet and produce certain non-party records and my order of May 4, 2012 that Mr. Kary provide letters of request to and responses from non-parties by May 25, 2012. It was Mr. Kary who failed to comply with orders directed to him, not the plaintiff. I would add that since Mr. Kerr has taken over in October 12, 2012, the plaintiff has complied with her production obligations and with the consent order made by me on October 12, 2012, she has attended for her continued examination for discovery on July 4, 2013 and has answered her undertakings from that examination. Although a number of undertakings were answered late, by the time this motion was heard the defendant was satisfied that the undertakings had been substantially answered.
[43] The defendant also raises the plaintiff’s failure to comply with court orders and rule 15.04(8) to deliver a notice of intention to act in person or notice of appointment of lawyer. After Master Peterson removed Raphael Partners as her lawyer by order of September 4, 2002 the plaintiff failed to appoint a lawyer or serve a notice of intention to act in person until Mr. Silverman began to represent her in March 2004. As noted however, rule 15.04(8) was not yet part of the rules of civil procedure and there was no requirement to serve a notice of intention to act in person either in the rules or in Master Peterson’s order. More troubling was her failure to deliver a notice of intention to act in person or notice of appointment of lawyer following my order of December 10, 2008 removing the Sternberg firm. By this time rule 15.04(8) was part of the rules and was incorporated into my order requiring compliance within 30 days of service. The order was served in January 2009. The plaintiff failed to comply, despite several reminders from the court and my order of May 4, 2012 requiring compliance in the next 14 days. Although Mr. Kary assisted her on several motions, he never went on record. It was not until Mr. Kerr served a notice of appointment of lawyer on October 11, 2012 that the plaintiff complied with the December 10, 2008 order, almost four years late. The plaintiff has never explained this breach, although in my view she was clearly aware of the requirement. In any event, that requirement has now been satisfied and she is no longer in breach. This should not be a basis for dismissal under either rule 24.01 or 60.12.
[44] The defendant also references the plaintiff’s breach of my order of December 18, 2008 to sign an undertaking to the Sternberg firm before retrieving her file. On October 16, 2009 on a contempt motion, Justice Pitt found that the plaintiff took the file over the objection of the firm’s junior legal assistant without signing the undertaking. Although he did not make a finding of contempt, Justice Pitt ordered that she sign the precisely worded undertaking. Justice Pitt was sharply critical of Ms. Francis, stating: “The respondent’s refusal to comply with the order of the Court strikes at the very heart of the administration of justice...The respondent’s intent was formed once the order was made, and she exploited the opportunities presented to her, partly by the conduct of her former solicitor, to finesse the situation.” He did however recognize the plaintiff “is under some disability” and had bona fide (albeit incorrect) legal advice. While this may be an example of Ms. Francis’s disregard of a court order, I would not consider it as part of the contumelious behaviour of which the defendant complains nor would I dismiss under rule 60.12 because (a) the matter was already fully adjudicated by Justice Pitt who failed to make a finding of contempt and (b) this was a matter between the plaintiff and her former solicitors, not with the defendant, and was unrelated to the delay in the action.
[45] The final breaches relate to outstanding costs awards. Although the $2,400 forthwith cost award by Master Sedgwick on January 29, 2003 was never paid, it was varied by Master Clark on November 1, 2004 to payment “when the action is disposed of” as was Master Clark’s own cost award of $1,000. On the defendant’s appeal on February 28, 2005, Justice Siegel recognized the plaintiff’s impecuniosity and the effect on access to justice of forthwith costs awards and he awarded that unless the plaintiff’s financial circumstances change, costs to the defendant “under any outstanding cost orders” shall be payable upon final disposition of the action. It is unclear to me whether Justice Sigel’s use of the term “outstanding” costs awards related only to past awards then outstanding or also future costs awards. While in my view the word “outstanding” would not normally have prospective application, both lawyers have assumed that it applies to both past and future costs awards.
[46] The treatment of costs has been inconsistent since Justice Siegel’s order. On June 23, 2008 Master Linton ordered costs to the defendant “when the cause has been determined.” On February 19, 2009 I ordered the plaintiff to pay cancellation fees of the missed medical appointments totalling $3,450 within 120 days and $300 costs of the motion within 60 days. (Justice Sanderson did not deal with outstanding costs and cancellation fees when she allowed the appeal on February 6, 2012). On October 16, 2009 Justice Pitt ordered $1,500 costs to the plaintiff’s former solicitors “within 60 days”, but that is of no concern to the defendant or its rule 60.12 motion. On October 12, 2012 I ordered Dr. Soric’s $400 cancellation fee be paid to the defendant in the cause and $2,000 costs of the motion in any event of the cause. There have been no orders to pay the other cancellation fees that had been incurred. No cost awards were made on the other orders in this action.
[47] In the result the only costs that may owing to the defendant and now due and “outstanding” are the $3,450 cancellation fee and $300 costs I ordered on February 19, 2009. There is some question whether those fees are truly owing or may be withheld until after final disposition of the action as a result of the order of Justice Siegel made on February 28, 2005. In my view however I am satisfied, as was Justice Siegel, that the plaintiff is impecunious. The plaintiff’s impecuniosity should not forever shield Ms. Francis for costs arising from unreasonable litigation behaviour, but if a request is made for a forthwith costs award prior to final disposition of this action, there would need to be full argument on the meaning of Justice Siegel’s order.
[48] In my view the delay in this action has been neither intentional nor contumelious. There are no outstanding court orders as between the plaintiff and the defendant that remain in breach by the plaintiff, although clearly there have been breaches over the course of this litigation. In my view it would not be just to dismiss this action as “intentional and contumelious” under rule 24.01 or for breach of court orders under rule 60.12.
IS THE DELAY INORDINATE AND INEXCUSABLE RESULTING IN PREJUDICE TO THE DEFENDANT?
[49] The second type of case described in Langenecker requires three characteristics to justify a dismissal for delay. The delay must be (a) inordinate, (b) inexcusable and (c) result in prejudice to the defendant such that there is a significant risk a fair trial will not be possible due to the delay:
The second type of case that will justify an order dismissing for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.[^7]
Is the Delay Inordinate?
[50] What constitutes an inordinate delay?
The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss. Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case.[^8]
[51] The key dates to consider are the date of commencement of the action (August 10, 2000), the date the action was set down for trial (January 19, 2007) and the date the current motion to dismiss was heard (September 2, 2015). A period of 15 years from commencement of action to motion to dismiss can be considered inordinate by any definition. Even if the end date is the date of service of the notice of motion to dismiss (April 29, 2015) this still amounts to 14 years and 8 months.
[52] The 6½ years from commencement to set down is in itself somewhat inordinate. Under rule 48.14 as it existed prior to amendment on January 1, 2015, a status notice would issue if a party had not set an action down for trial within two years of a first defence and, in the absence of a consent timetable, a party would be required to explain at a status hearing why the action should not be dismissed for delay. As the court of appeal stated: “It is surely not too much to expect a party to either set a matter down for trial within two years of the close of pleadings or be able to offer a reasonable explanation for why that is not possible to do so.”[^9] Stated another way: “Rule 48.14 clearly contemplates that two years following the filing of a statement of defence is viewed as being ample time to complete remaining steps and have a matter set down for trial, absent some satisfactory explanation.” [^10] In this case there was a delay of almost five years from the statement of defence (February 8, 2002) to the set down date (January 19, 2007).
[53] I have considered the increased tolerance for delay demonstrated by the changes to rule 48.14 that came into effect on January 1, 2015.[^11] Actions after that date would not be administratively dismissed for delay by the registrar unless they were not set down for trial within 5 years after they are commenced. In this case it was 6½ years.
[54] What makes the total delay of 15 years from commencement to motion to dismiss particularly inordinate in this case is the delay of almost 8 years and 8 months from the date the action was set down for trial (January 19, 2007) to the date the current motion to dismiss was heard (September 2, 2015). Despite the passage of 8 2/3 years from setting the action down, the plaintiff has yet to obtain a pre-trial or trial date. The action has twice been struck from the trial list and as of the date of this motion, it has not been restored the second time.
Is the Delay Inexcusable?
[55] Since the delay is inordinate I must consider whether the delay is inexcusable. When is a delay inexcusable?
The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. ...[E]xplanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.
In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. [^12]
[56] I find the explanation for the initial period of delay from commencement of the action (August 10, 2000) to the date the action was set down for trial (January 19, 2007) reasonable and cogent and thus excusable. It is unclear why the defendant waited until February 8, 2002 to deliver a defence (notwithstanding service of the statement of claim on August 24, 2000). By the time the defence was delivered the plaintiff had already requested and obtained preliminary medical reports from the family doctor as well as two expert reports from a physiatrist and a psychiatrist. Her lawyer then left his firm and the firm went off the record in September 2002. While self represented the defendant served the First Dismissal Motion. Although the plaintiff retained the Neinstein firm prior to the return of the motion, the firm failed due to oversight to attend on the motion on January 29, 2003 before Master Sedgwick and the action was dismissed. Although the Neinstein firm indicated they would look after the dismissal they failed to do so and by July 2003 indicated they would no longer be acting, never having gone on the record.
[57] There is no explanation why it took the plaintiff until March 2004 to retain Mr. Silverman, but he then promptly moved to set aside the dismissal which was successfully heard by Master Sedgwick on July 7, 2004, however the $2,400 forthwith cost order was not varied. The defendant then moved to dismiss for not paying the $2,400. This was successfully resisted by the plaintiff and on November 1, 2004 Master Clark varied the costs payment date to the end of the action. The defendant appealed Master Clark’s order unsuccessfully. On February 28, 2005 Justice Siegel ordered all outstanding costs payable upon final disposition of the action.
[58] During this flurry of motions by the defendant, the plaintiff was able to serve her affidavit of documents in August 2004. Once the defendant’s motion and appeal were dismissed, discoveries proceeded in the normal course in October 2005 and March 2006 of the plaintiff and January 2006 of the defendant. The plaintiff filed a trial record to set the action down on January 19, 2007.
[59] Other than the two year delay between January 2003 when the plaintiff’s then lawyer failed to attend a motion resulting in a dismissal of the action with costs and the defendant’s unsuccessful motion to dismiss for non-payment of those costs and unsuccessful appeal in February 2005 (part of which time the plaintiff was without a lawyer), the action proceeded at a more or less normal pace.
[60] Almost 5 years passed between the delivery of the statement of defence and setting the action down. I accept however that the two year delay between January 2003 and February 2005 can be attributed primarily to the defendant and to plaintiff’s former counsel. In the remaining three years the plaintiff gathered medical evidence, delivered an affidavit of documents, attended three days of discovery and set the action down.
[61] The explanation for the delay for the first 6½ years of this action is reasonable and the delay is excusable.
[62] The delay of almost 8 years and 8 months from the date the action was set down for trial (January 19, 2007) and the date the current motion to dismiss was heard (September 2, 2015) is more problematic for the plaintiff. Despite setting the action down over 8½ years ago, the plaintiff has yet to obtain a pre-trial or trial date. The action has twice been struck from the trial list. Although restored the first time, no motion has yet been brought to restore it the second time.
[63] What is the explanation for this delay?
[64] The plaintiff started off on the right foot. In July 2007 Mr. Silverman completed the plaintiff’s portion of the certification form for obtaining a trial date and sent it to the defendant for their input. It is not clear what happened to the form after that, but clearly it was either not submitted to the trial office or was incomplete as the action was later struck from the trial list. In August 2007 Mr. Silverman engaged in communication with the defendant about mediation but that broke down when the defendant determined by April 2008 to arrange defence medical examinations.
[65] The action then went off the rails primarily over the defence medical issue and to a lesser extent by the striking from the trial list and the completion of the plaintiff’s undertakings. The plaintiff was also effectively without counsel of record from December 2008 to October 2012.
[66] For almost five years, from April 2008 until January 2013 the parties and the court were concerned with issues respecting the defence medical examinations. For the first 2½ years of that period, to October 2010 as well as an additional 9 months between May 2011 and February 2012, the delay resulted from what I have described as the dogged insistence of the defendant’s lawyers that the plaintiff be examined by male doctors, because they were entitled to have the plaintiff assessed by doctors of their choice that they had confidence in (which is a correct statement of the law), and those doctors happened to be Dr. Cameron and Dr. Hershberg, both of whom were male. The plaintiff’s pleas started in May 2008 when Mr. Silverman indicated that the plaintiff would attend defence medical examinations but insisted that they be female physicians and he explained why being examined by strange male doctors caused the plaintiff anxiety. I have earlier in these reasons dealing with contumelious delay described the plaintiff’s anxiety in greater detail and need not repeat it here.
[67] The defendant’s demand that the plaintiff see the male doctors of their choice extended over a motion to compel attendance heard by Master Linton on June 23, 2008, a motion heard by me on February 19, 2009 to dismiss for breach of Master Linton’s order and then an appeal and motion to vary commenced by the plaintiff on March 6, 2009 but delayed several times because her materials were not ready. The defendant concurrently brought a further motion in April 2010 to dismiss for breach of both orders to attend, Given the delay in getting the appeal ready to proceed, the defendant’s lawyers again booked appointments with the two male doctors and of course the plaintiff advised she would not attend. The matter finally came before Justice Sanderson on September 3, 2010 (and she adjourned for continuation).
[68] Finally in October 2010 the defendant agreed to have the plaintiff examined by a female psychiatrist (Dr. Kirkpatrick) and orthopaedic specialist (Dr. Boynton). Following the incomplete examination by Dr. Boynton on March 28, 2011 as described earlier in these reasons and Dr. Boynton’s indication she would not rebook with the plaintiff, I stayed the action on April 12, 2011 to give the plaintiff an opportunity to see a defence doctor. Since Dr. Boynton would not see the plaintiff, the defendant’s lawyers reverted to their original plan to have the plaintiff seen by Dr. Cameron (with a female chaperone as the court had suggested) and in May 2011 arranged an appointment for August. As could be expected, the plaintiff failed to attend. This of course resulted in another motion by the defendant to dismiss and also prompted the plaintiff to finally get the appeal back on before Justice Sanderson. On February 6, 2012 Justice Sanderson ordered the defendant’s lawyers to find another female orthopaedic specialist if Dr. Boynton would not rebook. She was critical of the pleas of the defendant’s lawyers that it could not find another female orthopaedic specialist they had confidence in.
[69] As noted, the defendant then arranged for the plaintiff to see Dr. Soric, a female physiatrist, in lieu of an orthopaedic specialist. She saw Dr. Soric on January 17, 2013 (having cancelled a May 2012 appointment because the plaintiff was not well). As described in greater detail in that part of the reasons dealing with contumelious behaviour, the appointment with Dr. Soric also went poorly. The plaintiff saw the defence female psychiatrist, Dr. Kirkpatrick, on December 13, 2011, apparently without incident.
[70] After the episodes with Drs. Boynton and Soric, the defendant’s lawyers chose not to seek another female doctor to assess the plaintiff’s physical injuries and instead brought the motion to dismiss for delay now before me.
[71] The other aspect of the delay during this period was the failure to set trial dates resulting in being twice struck from the trial list. As indicated, in July 2007 Mr. Silverman completed the plaintiff’s portion of the certification form for obtaining a trial date and sent it to the defendant for their input, however the form was either not completed or not sent to the trial office and the action was struck from the trial list in 2008. Although the plaintiff took no steps to restore the action to the trial list for a number of years, that did not stop the defendant from continuing its quest for defence medical examinations from April 2008 through January 2013 or from pursuing a motion for productions, undertakings and further examination for discovery (in addition to dismissal for delay). I granted leave to restore the action to the trial list on May 4, 2012 and on October 10, 2012 the action was restored when the plaintiff filed a duplicate trial record, the original not having been located in the court file.
[72] Although the plaintiff picked up a blank certification form on October 10, 2012 she did not complete it and the action was again struck from the trial list on June 30, 2014. Her explanation was that she thought she had failed to restore the action to the trial list because she did not have the original trial record. In any event there is no evidence that the “blank form” contained the usual instructions by the trial office about a deadline for obtaining trial dates.
[73] In my view, the problems surrounding the striking from the trial list did not contribute to the delay of this action since defence medical and production issues continued throughout that period. Once Mr. Kerr went on the record on October 11, 2012 matters proceeded in a more normal fashion and consent production orders were made by me on October 12, 2012 together with a timetable for further discoveries and mediation, as well as the examination by Dr. Soric.
[74] Once the defendant retained new counsel in May 2013, the defendant continued its examination for discovery of the plaintiff on July 4, 2013 and attended a mediation on January 6, 2014. Mr. Kerr began writing for non-party records and answering undertakings in October 2013 and continued to answer undertakings between March and May 2015, such that by the date of the motion on September 2, 2015 the defendant conceded that the undertakings were substantially complete and sought no relief in that regard. The plaintiff has recently completed a fresh affidavit of documents that is 23 pages in length with 350 tabs and 10,000 scanned pages.
[75] The defendant has brought to my attention that the plaintiff acted for herself with respect to her accident benefit application and attended on numerous occasions for FSCO hearings, appeals to the Director and even judicial reviews to the Divisional Court during the time this action was extant. Many of the attendances were between October 2005 and November 2007 while she was represented by Mr. Silverman and she does not allege that she was unable to attend to this lawsuit. Other attendances were during the period between July 2008 and July 2010 and a Divisional Court hearing in November 2011. This was the period when the defendant was attempting to compel to compel defence examinations with male doctors and then the attendance with Dr. Boynton, which failed not because the plaintiff failed to attend but because of her conduct during the examination. The defendant also points me to media articles and video clips of the plaintiff as a mayoralty candidate in the period August to September 2014, a period of litigation inactivity. During this time however, the plaintiff was represented by Mr. Kerr and in any event only occupied the plaintiff’s time for two months. In my view the plaintiff’s participation in the accident benefits proceeding and the mayoralty race played little if any role in the delay in this action.
[76] In the plaintiff’s responding materials to this motion, she requested an order to restore the action to the trial list, but there was no formal motion or cross-motion in that regard. That issue will be dealt with near the end of these reasons.
[77] In all the circumstances, I am satisfied that the additional delay of almost 8 years and 8 months since the action was set down has been reasonably explained. In my view much of that delay deals with the defence medical examination issue. The delay is to a large extent attributed to the defendant’s insistence on male doctors and to the plaintiff’s suspicions and aggressive nature during two examinations once they were arranged with female doctors.
[78] The plaintiff says in her affidavit that she is “ready to proceed to pre-trial and trial in this action and request that dates be set.” Two things need to be done before this matter can go to trial. One is an order restoring to the trial list, which hopefully will be done on consent and completion of the certification form with co-operation of both parties.
[79] The second matter is to require the plaintiff to attend another defence medical examination with a female orthopaedic specialist or physiatrist, if the defendant chooses to request one, with appropriate terms respecting the conduct of the examination, which if breached will result in this action being dismissed.
[80] In summary I am satisfied that the inordinate delay in this action from commencement of the action to the current motion, although inordinate, has been reasonably explained and is excusable.
Has the Defendant Been Prejudiced by the Delay?
[81] If I am wrong and if the inordinate delay is inexcusable, I must consider whether as a result of that delay, the defendant is prejudiced in the presentation and determination of its defence on the merits since there are three parts to the test. The action would be dismissed for delay only if an inordinate and inexcusable delay “gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.”[^13]
[82] The test for this factor is described as follows:
The third requirement is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay…
In addition to the prejudice inherent in lengthy delays, a long delay can cause case-specific prejudice.[^14]
[83] A presumption of prejudice may arise if there has been “an inordinate delay after the cause of action arose or after the passage of limitation period”. [^15] I also note that “while the presumption of prejudice will speak as a barely audible caution immediately after a limitation period expires, it may command with increasing imperativeness on the passage of a substantial time, depending on the cause of action.”[^16] If the plaintiff rebuts any such presumption of prejudice, the onus is on the defendant to adduce “convincing evidence” of actual case specific prejudice resulting from the delay.[^17]
[84] One method of rebutting the presumption of prejudice is for the plaintiff to provide evidence that all relevant documents have been preserved, key witnesses are available, certain elements of the claim may not be in issue and, in the case of personal injury, that medical evidence of the progress of the injuries is available.[^18] On the other hand, if the case turns largely on documents or expert evidence, the availability and evidence of key witnesses may be unimportant.[^19]
[85] It is however not always necessary for the plaintiff to lead affirmative evidence such as the documents being preserved and witnesses being available in order to rebut the presumption of prejudice. Rather, in evaluating the strength of the presumption, the court must consider all of the circumstances including the defendant’s conduct in the litigation and whether the defendant’s actions are inconsistent with a presumption of prejudice or with any alleged actual prejudice arising from the delay in prosecuting the action.[^20]
[86] A defendant’s “lack of display of any sense of urgency”, or a defendant’s continuing to participate in an action notwithstanding delay undercuts a claim that the defendants would be prejudiced in defending the claim at trial.[^21]
[87] In my view the plaintiff has rebutted the presumption of prejudice by affirmative evidence. I am satisfied that medical documentation has been preserved tracing the history of her medical condition. As early as October 1999, two months after the accident, plaintiff’s lawyers had obtained a report from the family doctor. By early 2001, the plaintiff has been assessed by a physiatrist and a psychiatrist at the request of counsel and expert reports were generated. She has provided an affidavit of documents consisting of 23 pages, 350 tabs and 10,000 scanned pages. The plaintiff attended for examination for discovery on three occasions on October 27, 2005, March 9, 2006 and most recently by way of follow up on July 14, 2013. The defendant concedes that the plaintiff has substantially answered her undertakings. These included medical records, an OHIP summary, school records, some employment records and tax returns to her last year of filing. The plaintiff says “all available records have been obtained and provided”. The defendant does not suggest that any records have disappeared with the passage of time.
[88] In terms of witnesses, the plaintiff says that liability is not seriously in issue. The plaintiff was shopping in a Canadian Tire store and a box fell from an upper shelf hitting her on her head. Although liability has not been admitted, the defendant provides no evidence to counter that suggestion. The defendant has not suggested that it requires the evidence of any of the store employees or that they cannot be located:
The plaintiffs of course cannot be called upon to speculate as to what documents or witnesses the defendant may be unable to locate. That is uniquely within the knowledge of the defendant.[^22]
The real issues in this action are the extent of the plaintiff’s damages and whether her ongoing physical and psychological symptoms were caused by the Canadian Tire incident or were pre-existing and/or were caused by the subsequent police incident and the motor vehicle accident.
[89] Since the plaintiff has rebutted the presumption of prejudice by affirmative evidence, it is unnecessary to consider if the defendant’s behaviour is inconsistent with a presumption of prejudice. To the contrary, the defendant has brought seven motions to dismiss over the course of this litigation, either for delay or breach of court orders. On the other hand, notwithstanding the delay and the failure of the defence medical examinations with Drs. Boynton and Soric, the defendant, after changing lawyers, proceeded with a further examination for discovery, mediation and request for answers to undertakings. It is not necessary that I make a finding that the defendant’s recent behaviour can be used to rebut the presumption of prejudice.
[90] The plaintiff having rebutted the presumption of prejudice, the onus moves to the defendant to demonstrate actual prejudice. The defendant’s sole argument as to prejudice is that as a result of the delay and the plaintiff’s behaviour, it has lost the ability to obtain a meaningful defence medical assessment and in particular a contemporaneous assessment.
[91] In terms of a contemporaneous assessment, I note that the statement of claim was served in August 2000, the plaintiff’s initial examination for discovery was in October 2005 and yet the defendant waited until April 2008, 8½ years after the accident, to first request defence medical examinations (with male doctors), and until January 2011, 11½ years after the accident, to first arrange a defence assessment with a female doctor.[^23] The plaintiff had been saying for almost three years that she would attend assessments as long as they were conducted by female doctors. By the time the defendant first got around to arranging arrange defence medical assessments, and then assessments with female doctors, the ship of contemporaneity had long sailed. Quite simply, there was no contemporaneous examination because one had not been requested and then when it was requested, pleas for a female doctor were ignored for almost three years. If the defendant wanted a contemporaneous examination they would have arranged it not in 2008, but many years earlier, and then when it was clear there would be no examination by a male assessor, another three years went by before an appropriate examination was arranged.
[92] In my view the defendant has not been prejudiced by the delays in this litigation.
CONCLUSION: DEFENCE MEDICAL EXAMINATION
[93] Although I have determined that the defendant has not been prejudiced by the delays in this action, it will certainly be prejudiced if it is unable to conduct a defence medical examination of the plaintiff’s physical condition before trial. Without an assessment by a specialist on behalf of the defendant and only from the plaintiff’s doctors, the playing field would not be level and a fair trial would not be possible.
[94] In terms of whether the defendant can obtain a defence medical assessment before trial, even one that is not contemporaneous, I note that the defendant has had a defence psychiatric examination in December 2011 and I have no evidence that the assessment was not completed in an appropriate fashion. In terms of a defence assessment of her physical symptoms, the plaintiff has severe aspects to her personality, in particular her deep rooted suspicion of people’s actions and words and her confrontational and argumentative style if she believes she is being challenged, which has prevented a proper assessment being completed by two separate (female) doctors, particularly in the one hour time allotted.
[95] As I noted earlier, there has never been an order governing how the defence medical examinations should be conducted or how the plaintiff should deport herself during the examinations. An order should be fashioned that has the best chance of completing an effective defence medical examination of the plaintiff in such manner as medically determined by the examining doctor while allaying the plaintiff’s suspicions, as unreasonable as they may be, and avoiding confrontational behaviour.
[96] Section 105 of the Courts of Justice Act[^24] and Rule 33 are silent on the imposition of terms of an examination. However, as stated by the court of appeal in Bellamy v. Johnson (there dealing with the right to order the taping of a medical examination):
But the section and the rules are silent as to how the examination will be conducted. I think it is contemplated that the examination will be carried out in the fashion that, in the judgment of the doctor, best facilitates the examination. However, it must be kept in mind that the quality of the examination contemplated by the rules is not dependent upon the confidence which is the basis of a doctor/patient relationship. It is, rather, dependent on the skill and integrity of the doctor in conducting the examination in a manner that will best facilitate discovery in the adversarial process. The plaintiff has no right to determine how the examination is to be conducted or whether it is to be recorded. However, the judgment of the doctor as to how the examination is to be conducted is not final, and the court has jurisdiction to set terms and conditions relating to the examination including a condition relating to the recording of the examination.[^25] [emphasis added]
[97] The court in Bellamy was not prepared to grant carte blanche approval to the recording of medical examinations and each case would depend on its own facts, but a concern over the reliability of the doctor’s or the plaintiff’s account of the examination could on its facts amount to grounds in support of an audio recording:
Each application to permit tape-recording during the examination will depend on its own facts. If the moving party demonstrates the potential for a bona fide concern as to the reliability of the doctor's or plaintiff's account of any statements made during the examination, and if the moving party proposes a method and terms of recording the examination which would provide both parties with a full and accurate record of those statements in a timely fashion, then an order permitting the recording would be appropriate.[^26]
[98] The court in Bellamy confirmed that a master has jurisdiction to set terms of and conditions relating to the examination, including the audio recording of the examination.[^27]
[99] A five judge panel of the court of appeal in Adam v. Cook[^28] was asked to consider whether the taping of defence medical examination should become routine when requested, although in that case the concern was over the alleged systemic bias of defence medical examiners. The majority refused to broaden the grounds for tape recording on the evidentiary record then before it and deferred to the fact specific analysis in Bellamy.
[100] This is clearly a case where the bona fides of both the doctors’ account and the plaintiff’s account of statements made during the examination has been called into question by the adverse parties. Audio recording in this case would promote transparency and enable both counsel and the motions judge or master to have an accurate picture of what went on during the examination should an issue arise over compliance with my order. It would also assist the trial court to be fully informed concerning the conduct of the examination in assessing the reliability of statements made in the examination in the unique circumstances of this case.
[101] The evidence on this motion clearly indicates that the unique circumstances and history of this case make it an appropriate one for audio recording.
[102] I am prepared to give the plaintiff one final opportunity to see if she can co-operate in a manner that will allow a meaningful assessment to be completed. It has been a challenge crafting appropriate terms and I am not altogether sanguine that the plaintiff is able or willing to control her impulsive behaviour to allow for a proper examination. The plaintiff must be made aware that I am throwing her a lifeline. This is her last chance. If she fails to comply with the terms of this order, the action will almost certainly be dismissed for delay and for breach of this order barring the most extraordinary of circumstances. While Ms. Francis may not be able to control her suspicious nature or her impulses to challenge statements she disagrees with, she will simply have to control her actions resulting from her nature and impulses if she wants the court to allow her action to go to trial.
[103] The reason for dismissal in the event of further breach has been made clear in many decisions of this court. For example: “If this court’s rules are to be taken seriously by anybody, they must be enforced” and there will come a time when an action ought to be determined not on the merits, but for breach of procedural orders.[^29] When a plaintiff “repeatedly fails to comply with orders of the court whether or not there has been prejudice to the defendants” the time will come when dismissal is the only just option in order for the court is to meet its responsibility for the effective administration of justice.[^30] Finally, “if court orders are made and parties are continuously permitted to breach them without consequences, the orders become meaningless.”[^31]
[104] We are not yet at the point where I can conclude that the defendant will be unable to obtain an effective defence assessment of the plaintiff’s physical condition. If the plaintiff fails to comply with the terms of this order, however, we may well reach that point.
[105] In order to determine whether the plaintiff complies, and in anticipation of almost certain contradictory evidence, there should be an audio record of the examination.
[106] To some extent, I hope to allay some of the plaintiff’s suspicions and concerns with terms that permit her to see, in advance, the medical brief sent to the examining doctors and a copy of any consent she will be asked to sign.
[107] Because of past experience and the plaintiff’s personality in my view there should be more time set aside for the examination than one hour.
[108] The challenge to the defendant of course is to find a doctor that is willing to conduct the examination under these terms. To echo by analogy the views of Justice Sanderson: of the 14 or 15 qualified female orthopaedic specialists in the GTA and whatever number of female physiatrists in the GTA surely the defendant can find one who is prepared to conduct an examination of the plaintiff that is audio recorded and who will set aside two hours for the examination.
“ENOUGH IS ENOUGH”
[109] The defendant also argues that “enough is enough” and that I should dismiss the action even if I did not accept that the defendant was prejudiced by the delay. Pursuant to the court’s inherent jurisdiction to control its own processes, a court may dismiss an action for delay even when the rules of civil procedure do not specifically mandate a dismissal order:
There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it.[^32]
[110] This power has been described as follows:
Rule 24.01 allows a party to move to dismiss an action for delay where the plaintiff has failed to prosecute the action in a timely fashion in accordance with the rules. Moreover, courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which "includes the discretionary power to dismiss an action for delay”... "The power of a superior court to strike a matter for want of prosecution does not hinge on the niceties of the wording of the rules, but rather flows from the inherent power of the court to prevent an abuse of its own process”... "Even if the action could not be dismissed under r. 24.01(1), given all of the circumstances, it could properly be dismissed as an abuse of the court's process".[^33]
[111] It is not necessary for me to determine whether I, as a master, have such jurisdiction[^34] since in my view this is not an appropriate case to exercise that jurisdiction. I have accepted the plaintiff’s explanation for the clearly inordinate delay in this action. However, should the plaintiff fail to comply with the terms of this order, particularly with respect to the defence medical examination, I may well come to the conclusion that “enough is enough” and dismiss the action on that basis as well.
[112] In a similar vein, I take into account what the court of appeal has stated in the context of motions to set aside administrative dismissals for delay, that in exercising discretion on such motions, “two principles of our civil justice system come into play...The first...is that civil actions should be decided on their merits...The second principle is that civil actions should be resolved within a reasonable timeframe...Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it. On motions to set aside an order dismissing an action for delay, inevitably there is a tension between those two principles.”[^35] The amount of weight to be assigned to each consideration “will vary from case to case. The court’s overriding objective is to achieve a just result – a result that balances the interests of the parties and takes into account the public’s interest in the timely resolution of disputes.”[^36] Should the plaintiff fail to comply with the terms of this order, she may find that the pendulum has swung against the granting of any further indulgences.
RESTORATION TO THE TRIAL LIST
[113] In the plaintiff’s responding materials to this motion, she requested an order to restore the action to the trial list, but there was no formal motion or cross-motion for that relief. A motion for leave must be sought under rule 48.11(b). I asked defendant’s counsel if he would consent to the action being restored to the trial list if I did not dismiss the action for delay since explanation of delay and prejudice are the two main criteria for both motions,[^37] with some subtle differences. He indicated he required instructions. I therefore make no order to restore today since the defendant has not had an opportunity to make submissions if it chooses to do so. I have in the operative terms of this order set a deadline for the defendant to indicate whether such motion would be opposed and a timetable for the bringing of the motion.
CASE MANAGEMENT
[114] Although on December 4, 2008 I seized myself of all motions within the jurisdiction of a master, I did not make an order formally transferring the action to Rule 77 case management. It is time to do that. Pursuant to rule 77.05(2)(a) a case management master may assign an action to case management on his own initiative. Case management will help ensure this action gets to trial with as few bumps along the way as possible. This would include assisting the parties in overcoming any obstacles in completing the certification form if the action is restored to the trial list and dealing with any problems that may arise in the interpretation or application of the terms set out for a defence medical examination. It will permit ready access to the courts through the utilization of case conferences under rule 77.04(2) or 77.08 to deal with procedural matters and non-compliance issues. It will clothe me with the wide case management powers under rule 77.04(1)(e) to “make orders, impose terms, give directions and award costs as necessary to carry out the purposes” of Rule 77. It will also mean ready access to a motion to dismiss the action for breach of the terms of the order made today, should that become necessary.
COSTS OF MOTION
[115] Although I did not dismiss the action, the defendant should have its costs. Although the defendant must to some extent share part of the blame for the delay in this action, the motion before me was necessary because of the plaintiff’s behaviour at examination by the two female doctors and her failure to take steps to restore the action to the trial list and fix a trial date. The defendant did not provide a cost outline and so the cost award will be modest. Further I accept that any forthwith costs order will bring this action to a halt, so they will be paid after final disposition of the action. The plaintiff cannot expect the same indulgence if a bona fide motion comes back before me arising out of breach of the order I make today.
ORDER
[116] I hereby order as follows:
(1) The motion by the defendant to dismiss the action for delay and for breach of court orders is dismissed without prejudice to moving again if the plaintiff is in breach of the terms of this order.
(2) This action is assigned to case management under Rule 77, to be managed by Master Dash.
(3) Within 14 days the defendant shall advise the plaintiff whether it opposes, does not oppose or consents to the action being restored to the trial list. Within 30 days after receipt of the defendant’s position the plaintiff shall deliver a motion for leave to restore the action to the trial list, in writing to my attention if the motion is unopposed or on consent, or returnable in my motions court if opposed.
(4) If the defendant requests that the plaintiff attend with an orthopaedic specialist, physiatrist or some other medical specialist appropriate to the assessment of the plaintiff’s physical injuries, it shall within 90 days arrange a date for such examination at the earliest time available to the specialist on the following terms:
(a) The examining specialist shall be female.
(b) The examination shall be booked for not less than two hours.
(c) The plaintiff shall be given at least 30 days notice of the examination. If within 10 days after receiving such notice the plaintiff advises she is unable to attend on that date because of a conflicting engagement, the parties shall co-operate in arranging a new date convenient to the plaintiff and the doctor.
(d) At least 14 days before the examination, the plaintiff’s lawyer shall be provided an exact copy of the index and brief of documents that is provide to the examining doctor, together with any form of consent that the doctor wishes executed by the plaintiff. The plaintiff shall then have five days to advise defendant’s counsel if she believes any relevant medical documents are missing. The defendant shall co-operate in providing a supplemental brief of relevant additional documents outlined by the plaintiff. If there is a disagreement on what additional documents are to be submitted, if any, I may be contacted for an emergency case conference to resolve the issue.
(e) The plaintiff will execute any consent required by the doctor and bring the signed copy to the examination. She shall make no alterations to the consent form without the express consent of the defendant or order of the court. If she does not bring the consent to the examination, she shall sign the consent at the doctor’s office without alteration of any kind.
(f) Either during the examination or in the waiting room before the examination (at the option of the doctor), the plaintiff will be entitled to review the doctor’s index to the brief of documents for no longer than 10 minutes to compare to her own copy of the index, but she shall not be permitted to review the documents themselves that have been sent to the doctor. She shall not be entitled during the examination to examine or ask about any other form or certificate that the doctor may have in her possession or may be signing. She shall not be entitled to review or ask to review the referral letter from the defendant’s lawyer to the doctor.
(g) The plaintiff will fully co-operate with requests made by the examining doctor and shall answer all questions asked of her by the doctor during the examination. The plaintiff is not entitled to ask any questions of the doctor with respect to the examination, except to ask the doctor to clarify the meaning of any questions that, acting reasonably, she does not understand. She may not ask the doctor the purpose of any such questions.
(h) The plaintiff shall not make any comments to the doctor concerning the nature of the examination or about any suspicions that the plaintiff may have about what the doctor will report or whether she believes the doctor is or will be biased. The plaintiff will not comment if the examination starts later than the scheduled time.
(i) The examination will be audio recorded to be arranged by and at the expense of the defendant. The audio recording shall be done by a person independent of the parties, their lawyers and the doctor. Such person shall set up the equipment in the examining room in an unobtrusive manner but shall not be personally inside the examining room during the examination.
(j) The defendant shall provide a duplicate copy of the audio recording without alteration or editing to the plaintiff or her lawyer. If a transcription of the audio recording is prepared, a copy shall also be provided to the plaintiff or her lawyer.
(k) The plaintiff may unobtrusively make her own audio recording but if she does, she shall provide a copy of the audio recording without alteration or editing to the defendant’s lawyer.
(5) The plaintiff shall pay to the defendant its costs of this motion in any event of the cause fixed in the sum of $1,000.00.
Master R. Dash
DATE: September 29, 2015
[^1]: Much of this summary of the law mirrors my decision in Croy Properties Inc. v. 2273865 Ontario Inc., 2015 ONSC 3332, quoting the same sources as in Croy. [^2]: Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 at para. 5. [^3]: Faris v. Eftimovski, 2013 ONCA 360, [2013] O.J. No. 2551 (C.A.) at paras. 35-37. [^4]: Langenecker v. Sauve, supra, at para. 6. [^5]: Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13. [^6]: Law v. Whelan, 2012 ONSC 1023 (SCJ) at para. 58. [^7]: Langenecker v. Sauve, supra, at para. 7. [^8]: Langenecker v. Sauve, supra, at para. 8. [^9]: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67 (C.A.) at para. 35. [^10]: Riggitano v. Standard Life Assurance Co., [2009] O.J. No. 1997 (SCJ) at para. 34, aff’d 2010 ONCA 70, [2010] O.J. No. 292 (C.A.) [^11]: Klaczkowski v. Blackmont Capital Inc., 2015 ONSC 1650 (Div. Ct.) at paras 29-33; Belay v. Ages, 2015 ONSC 2377, [2015] O.J. No. 1928 (SCJ –Master) at para. 55; Dang v. Nguyen, 2014 ONSC 7150, [2014] O.J. No. 5880 (Div. Ct.) at para. 3; Elkhouli v. Senathirajah, 2014 ONSC 6140, (SCJ – Master) at paras.43-48. [^12]: Langenecker v. Sauve, supra, at paras. 9 and 10. [^13]: Langenecker v. Sauve, supra, at para. 5. [^14]: Langenecker v. Sauve, supra, at paras. 11 and 12. [^15]: Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055, 213 O.A.C. 229 (C.A.) at para. 11. [^16]: Clairmonte v. Canadian Imperial Bank of Commerce, 1970 470 (ON CA), [1970] 3 O.R. 97 (C.A.) at para. 43; Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, 102 O.R. (3d) 555 (C.A.) at para. 67. [^17]: Armstrong v. McCall, supra, at para. 11. [^18]: Wellwood v. Ontario, supra, at para. 62. [^19]: Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572, 104 O.R. (3d) 689 (C.A.) at para. 37. [^20]: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, [2015] O.J. No. 265 (C.A.), at paras. 16, 32-35, 39; H.B. Fuller Company v. Rogers, 2015 ONCA 173 (C.A.), at paras. 38-39. [^21]: Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.) at para. 18-19; MDM Plastics Ltd. v. Vincor International Inc., supra, at paras. 34-35; H.B. Fuller Company v. Rogers, supra, at para. 42. [^22]: Croy Properties Inc. v. 2273865 Ontario Inc., supra, at para. 43. [^23]: Although that was cancelled due to the plaintiff’s illness and she attended two months later in March 2011. [^24]: Courts of Justice Act, R.S.O. 1990, c. C.43 as amended. [^25]: Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 O.R. (3d) 591, [1992] O.J. No. 864 (C.A.) at para. 8. [^26]: Bellamy v. Johnson, supra at para. 21. [^27]: Bellamy v. Johnson, supra at para. 8. [^28]: Adam v. Cook, (2010), 2010 ONCA 293, 100 O.R. (3d) 1, [2010] O.J. No. 1622 (C.A.). [^29]: Botton v. Vroom, [2001] O.J. No. 2737 (SCJ) at para. 25-26. [^30]: Vacca v. Banks, [2005] O.J. No. 147 (Div. Ct.) at paras 23 and 27. [^31]: Peters v. Peters, 2007 CarswellOnt 7705 at para. 30, affirmed 2007 CarswellOnt 7001(SCJ). [^32]: Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 (C.A.) at para. 22 [^33]: Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.) at para. 24. [^34]: In the motion in the Police Action, also released today as Francis v. Rego, 2015 ONSC 5546, I come to the conclusion that as a master I have that power. [^35]: Hamilton (City) v. Svedas Koyanagi Architects Inc., supra at paras. 20-22. [^36]: Hamilton (City) v. Svedas Koyanagi Architects Inc., supra, at para. 23. [^37]: See the test to restore actions to the trial list in Nissar v. The Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713, [2013] O.J. No. 2553 (C.A.) at paragraphs 30 and 31.