ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-00517417-0000
DATE: 20151026
BETWEEN:
THI BINH NGUYEN
Plaintiff
– and –
ECONOMICAL MUTUAL INSURANCE COMPANY
Defendant
Thi Binh Nguyen in person, Plaintiff- Respondent
Catherine Korte, for the Defendant-Moving Party
HEARD: October 21, 2015
G. DOW, j
reasons
[1] The defendant seeks various orders in the face of various actions commenced by the plaintiff arising from her involvement in a motor vehicle accident on January 27, 2003. This led to a decision by Arbitrator Richards of the Financial Services Commission of Ontario August 28, 2013, which denied her claim for additional statutory automobile accident benefits. The decision was upheld on appeal by Director’s Delegate Evans with reasons released October 3, 2014. Director’s Delegate Evans also awarded costs payable by the plaintiff to the insurer, Economical, in the amount of $5,000 (which Economical advises remains unpaid).
[2] The plaintiff’s actions, in addition to this one, include a libel action against the defendant Economical and Dr. Monte Bail (file No. CV-14-503198) hereinafter referred to as the “Bail action” ) that has been the subject of various interlocutory matters. Dr. Bail examined the plaintiff at the request of Economical and gave evidence at the Financial Services Commission arbitration. It is noteworthy that Arbitrator Richards concluded Dr. Bail did not fairly assess the plaintiff and did not assign great weight to his opinion. This action was dismissed by Justice Faieta August 26, 2015, and is the subject of a motion apparently filed with the Court of Appeal returnable November 27, 2015, to extend the time for the filing of an appeal.
[3] There is also an action against the lawyer and his firm which represented Economical in the Financial Services Commission matter. This action was dismissed by Justice Hood with reasons September 11, 2015, with costs, presumably in favour of Economical, pending.
[4] The plaintiff is subject to a costs award from Justice Stinson, November 21, 2014, in the Bail action of $2,000 for each defendant payable within 30 days. There was a motion to vary the order of Justice Stinson which was heard by Justice Perell, June 3, 2015. His order of that date also awards costs to each defendant in the amount of $2,000 in any event of the cause.
[5] The order of Justice Faieta, June 24, 2015, orders costs of the motion heard before him in the amount of “$2,000 or payable by the plaintiff to each of the defendants forthwith”.
[6] There is a further motion by the plaintiff to amend the order of Justice Stinson in the Bail action heard July 13, 2015, in which the plaintiff’s motion was dismissed and the plaintiff ordered to “pay costs of $3,000 to each defendant forthwith”.
[7] As occurred in the previous matter heard by me, the plaintiff was self-represented and accompanied by her daughter, Rose Le who made submissions on her mother’s behalf given her mother’s first language is Vietnamese and she has a limited comprehension and ability to speak English. The importance of the plaintiff getting counsel and legal advice was again indicated to her.
[8] One of the issues before me was approving my order of April 24, 2015, so that it could be signed. I reviewed the draft order prepared by counsel for Economical with the plaintiff who failed to advise me of any defect. As a result I signed the order which dismissed this action as against the defendants Jeff Smith, Colin Davy, Ann Shewchuk, permitted the action as against the defendant Economical to proceed and fixed costs of $2,000 inclusive of fees, HST and disbursements to be payable by the plaintiff to the defendants when this matter is finally determined or, in any event of the cause.
[9] Rule 56.01(1)(e) provides for the Court to make such order for security for costs as is just where it appears that “there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent.” In my reasons of August 24, 2015, I indicate my sense that the plaintiff is approaching the legal threshold of frivolous or vexatious proceedings with her repeated litigation against the defendant, Economical, particularly following the dismissal of her appeal by Director’s Delegate Evans. In submissions before me (unsupported by any evidence filed corroborating same), the plaintiff alleges the existence of a chain of e-mails confirming the settlement agreement between the parties on August 22, 2013, of $157,500 (or six days before the release of the reasons by Arbitrator Richards). The plaintiff was advised this type of material needs to be placed before the Court as evidence in order to be fully and fairly considered. It should also be noted the existence of this material is denied by the defendant.
[10] Counsel for the defendant also advises the plaintiff makes periodic contact directly with the defendant and its employees. The materials before me includes various requests by counsel for the defendant that communication be restricted to the firm representing the defendant. I explained to the plaintiff her need to respect this request. The plaintiff advises (again through submissions and not evidence) that her efforts to contact or speak with defence counsel is not
promptly responded to. I suggested she put her communications in writing so that there is a record of same.
[11] Finally, defence counsel submitted a Costs Outline claiming $5,398.85 for partial indemnity costs in the preparation and argument of this motion.
[12] Defence counsel also sought an order determining the discovery plan for this action which would permit a November 6, 2015, date in motions court to be vacated.
[13] In my view, the situation has reached a level which requires sanctions while also mindful of a need to be fair and reasonable. As a result, the following order may be issued without the plaintiff’s approval as to form and content:
The plaintiff shall pay to the Accountant of the Superior Court of Justice the sum of $2,500 as security for costs within the next 45 days failing which this action is stayed and the defendant is at liberty to bring a motion for its dismissal, with notice to the plaintiff;
In the event the funds are paid into Court as ordered, the discovery plan will be:
i) The defendant will supply a list of all documents in its possession, control or power touching the issues between the parties as well as a list of documents it is seeking to have produced from the plaintiff (including any authorizations and directions for medical records not yet provided) within 30 days;
ii) The plaintiff will respond within the next 30 days with a list of documents in its possession, control or power and specifically any documents not contained in the list supplied by the defendant as well as a list of documents from the defendant’s list of which it requires copies including return of executed authorizations and directions or those which the plaintiff refuses to sign and the reason why;
iii) The parties will exchange affidavits of documents within the following 30 days following receipt of the plaintiff’s lists described above;
iv) Examinations for discovery of the parties shall be arranged and completed within 90 days following receipt of the first affidavit of documents.
- The plaintiff shall cease any direct contact with the defendant or any of its employees, instead communicating only with the solicitors for the defendant, that is the firm of McCague Borlack LLP.
[14] Regarding costs of this motion, the amount claimed is, in my view, excessive. I am prepared to award $2,500 payable by the plaintiff to the defendant in the next 30 days or to use the legal phrase, forthwith.
Mr. Justice G. Dow
Released: October 26, 2015
COURT FILE NO.: CV-14-00517417-0000
DATE: 20151026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THI BINH NGUYEN
Plaintiff
– and –
ECONOMICAL MUTUAL INSURANCE COMPANY
Defendant
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: October 26, 2015