SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CV-10-404037
Motion Heard: October 14, 2015

Re: SUNRISE INTERNATIONAL TRAVELS INC. et al.
and RAMNARINE TIWARI
Plaintiffs

v.

TRAVEL INDUSTRY COUNCIL OF ONTARIO,
MICHAEL PEPPER, and PATRICIA JENSEN

Defendants

Before: Master Lou Ann M. Pope

Appearances:
Ramnarine Tiwari, self-represented plaintiff
Fax: not provided
Email: Ram_siacan@hotmail.com

Alexandra Lev-Farrell, Berkow, Cohen LLP, for moving defendants
Fax: 416-364-3865

REASONS FOR ENDORSEMENT

[1] The defendants seek an order dismissing this action on two grounds set out below.

[2] Plaintiffs’ counsel was removed from the record as counsel for the plaintiffs by order dated April 25, 2014. The plaintiffs have not appointed a new lawyer or obtained leave for the corporation to be represented by a person other than a lawyer within 30 days of the date of the order as required by rule 15.04(8).

[3] The second ground for relief is that this action was struck from the trial list on September 26, 2014 and the plaintiffs have taken no steps to restore it to the trial list. In this respect, the defendants move pursuant to rule 24.01(1)(e) which provides that a defendant who is not in default under the rules may move to have an action dismissed for delay where the plaintiff has failed 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.

[4] In this action, examinations for discovery took place in late June 2011. The registrar issued a status notice on June 19, 2012. The next day, plaintiffs’ first counsel obtained an order removing himself as counsel of record for the plaintiffs. The plaintiffs retained new counsel who served a notice of appointment of lawyer on July 31, 2012. Thereafter, the parties agreed to a timetable which was court approved at the status hearing on September 27, 2012. Continued examinations for discovery of the plaintiff, Ramnarine Tiwari (“Tiwari”) were held in July 2013. In the meantime, plaintiffs’ counsel filed the trial record and set the action down for trial on August 29, 2013. Mediation was scheduled for November 14, 2013; however, it was cancelled three days prior as plaintiffs’ second counsel advised that he would be obtaining an order to remove his firm as counsel of record for the plaintiffs. Defence counsel heard nothing further until they inquired of plaintiffs’ counsel in January 2014 who did not respond until April 30, 2014 enclosing a copy of Master Dash’s removal order dated April 25, 2014. No further steps were taken in this action and on September 26, 2014, the action was struck from the trial list.

[5] Based on the above chronology, no steps have been taken in this action since August 2013, when plaintiffs’ former counsel set this action down for trial. The plaintiffs took no steps to move the action along after the order of April 25, 2014 removing their second counsel as counsel for record for them. In addition, the plaintiffs took no steps after this action was struck from the trial list on September 26, 2014.

[6] The defendants served the plaintiffs with the motion record for this motion on April 30, 2015 returnable on July 8, 2015. Tiwari appeared at the motion on July 8, 2015. He had filed responding material for the motion; however, it had not been served on the defendants. His material contained his sworn affidavit; however, the package of material also contained three copies of his notice of intention to act in person dated July 1, 2015, which has not been filed in the court file. The package also contained an unsigned and unsworn statement, various fax cover sheets with no confirmation sheets. Tiwari’s sworn affidavit states that he was ill and was unable to respond to this motion, that he would like this matter dealt with, and that he spoke with a “Legal help Lawyer” who advised him to request authority to represent himself and the company. In his affidavit, he refers to a doctor’s note dated June 30, 2015 attached as Exhibit “B” which was not attached. He also filed an unsigned affidavit of documents and another package of material with various documents.

[7] After hearing submissions by Tiwari and defence counsel on July 8, 2015, I adjourned the motion to October 15, 2015 on “strict terms” given the inadequate state of Tiwari’s responding material, the fact that he had no standing to act for the corporation and had not brought a motion to seek leave under rule 15.01(2). Those terms included servicing and filing of Tiwari’s responding motion material by July 31, 2015, including a Notice of Motion seeking leave for Tiwari to represent the corporation, that his material be in proper form in a properly sworn affidavit, file an affidavit of service of the material on the defendants, serve and file his notice of intention to act in person, and provide the defendants forthwith with the plaintiffs’ contact information including fax number and email, if any, for the purposes of service.

[8] The plaintiffs had three months from the motion scheduled on July 8, 2015 to comply with my orders and/or retain new counsel before the return of the motion on October 14, 2015.

[9] The plaintiffs failed to comply with every term of my order except Tiwari provided defence counsel with a telephone and fax number. However, defence counsel advised that her office was unable to fax anything to that number and Tiwari did not provide an email address as ordered. Further, defence counsel advised the court that Tiwari filled out the counsel slip for the motion on October 14, 2015 with an email address and cell phone number which were not provided to her as ordered. Tiwari was not able to explain his non-compliance with my order regarding something as simple as providing adequate contact information.

Non-Compliance with Removal Order

[10] Failure to comply with Rule 15.04(7)(a) and (9)(a) within 30 days after the order is made entitled an opposing party to move for an order dismissing the action.

[11] The plaintiffs have provided no evidence to explain their failure to retain new counsel or bring a motion to seek leave for Tiwari to represent the corporation.

[12] The defendants submit that even if the court were to consider a motion for leave under rule 15.02(2), leave should not be granted to Tiwari because the issues in this action are complex and it is evident that Tiwari will not be able to properly represent the interests of the corporation. (Ford v. Thorald (City), [2006] O.J. No. 2839 (S.C.J.) at para. 13, and 2049377 Ontario Limited v. 2058472 Ontario Inc., [2007] O.J. No. 5754 (S.C.J.) citing Dickinson v. Toronto and Region Conservation Authority, 2003 CarswellOnt 6019 (S.C.J.) at para. 5)

[13] In the statement of claim, the plaintiffs seek damages of $2,000,000, injunctive relief, an accounting and punitive damages of $1,000,000. They seek damages for misfeasance of public office, negligence, intimidation, intentional interference with economic relations and slander of title.

Failure to Restore Action to Trial List

[14] Rule 24.01(1)(e) gives the court discretion to dismiss an action for delay when the plaintiff fails to move for leave to restore to a trial list an action that was struck off a trial list within 30 days after the action was struck off the trial list.

[15] The plaintiff has the onus to explain the delay and satisfy the court that it would not be unfairly prejudicial for the defendant if the action were restored to the trial list. (Nissan v. TTC, 2013 ONCA 361, [2013] O.J. No. 2553 (C.A.) at para. 29-31)

[16] The plaintiffs herein filed no evidence whatsoever on this issue. Tiwari’s material referred to a medical note; however, it was not included in his material, nor did he file the medical note after the motion was adjourned from July 8, 2015, or any further evidence regarding his alleged illness. Interestingly, in his material Tiwari made a bald statement regarding a medical illness with no particulars regarding the nature of the illness, when it arose, if and how it affects his ability to deal with this action and whether he has recovered. Also, Tiwari was present on both July 8 and October 14, 2015 and stated nothing regarding his health and ability to deal with this action.

[17] In summary, the plaintiffs have taken no steps in this action since August 2013 when their former counsel filed the trial record. It was not until the defendants brought this motion on July 8, 2015 that Tiwari attempted to respond to the motion. In my view, there is simply no reason to believe that the plaintiffs would have taken any step to move this action along had the defendants not brought this motion.

[18] The plaintiffs were served with this motion on April 30, 2015. They have not retained new counsel since then in over five months knowing that the defendants were seeking to have the action dismissed. After hearing defence counsel’s submissions, Tiwari indicated that he appreciated the importance of having legal counsel represent the plaintiffs and he requested that the plaintiffs be given additional time to find new counsel. Notably, the plaintiffs have had since November 2013 to retain new counsel when their former counsel advised defence counsel that they would be getting off the record for the plaintiffs and failed to do so.

[19] The plaintiffs have not met the test to restore the action to the trial list nor have they complied with rules 15.04(7)(a) and (9)(a).

[20] It is an understatement to state that the issues in this action are complex. If Tiwari could not meet the requirements to respond to this motion or comply with my orders from July 8, 2015, it is certain he will not be capable of conducting a trial and adducing the requisite evidence to attempt to prove the allegations made in the statement of claim. Although there is no motion before this court for leave for Tiwari to represent the corporation, on the evidence before me, I would not grant leave.

[21] Moreover, Tiwari has not demonstrated that he is willing to comply with court orders such as providing his contact information.

[22] The defendants rely on Marciniak v. Lombard Canada Ltd. et al, 2015 ONSC 5707, at para. 109, for proposition that there is a real and substantial prejudice where professionals are sued for substantial damages, accused of misconduct and then “left hung out to dry” in a “kind of perpetual limbo.” The defendants submit that they are professionals and a professional organization who have had this action hanging over their heads since it was commenced in 2010 without any realistic end to it. As such, they submit that they will suffer real and substantial prejudice should this action be permitted to continue.

[23] In conclusion, despite the plaintiffs’ non-compliance with orders as set out above, and given the fact that they are self-represented, it is my view that Tiwari now appreciates the importance of having legal counsel represent the plaintiffs having attended both hearings on July 8, 2015 and October 14, 2015 and heard the defendants’ arguments. Tiwari requested that the court grant him more time to retain a new lawyer. With reluctance, for the reasons set out above, I am inclined to grant his request; however, on strict terms set out below. In coming to this conclusion, I have considered that the majority of the steps in this action have been completed, except for mediation, pre-trial and trial. I have also considered the general principle that actions should be heard on their merits, not dismissed on a technicality.

[24] This motion shall be adjourned sine die on the following terms:

1. The plaintiffs shall have 60 days from the date of this decision to retain new counsel and to file a notice of appointment of lawyer, failing which the defendants are at liberty to return this motion without notice to the plaintiffs to seek the relief sought and to make submissions on costs of the motion and the action;

2. The plaintiffs shall pay the defendants’ partial costs of this motion in the amount of $2,500, payable within 60 days of the date of this decision. This amount is payable whether or not the plaintiffs serve a notice of appointment of lawyer. Costs of the motion and the action shall be reserved to the return of the motion.

3. If the plaintiffs file a notice of appointment of lawyer as set out in paragraph 1 above, the defendants shall return this motion with 14 days’ notice to the plaintiffs to make submissions on costs of the motion and a timetable for the balance of the steps in the action;

4. I am seized of this motion.

(original signed)____

Released: Oct. 20, 2015 Master Lou Ann M. Pope