Court File and Parties
COURT FILE NO.: CV-14-499845 DATE: 20160419 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kris Rana, Plaintiff/Responding Party AND: Unifund Assurance Company, Defendant/Moving Party
BEFORE: S. F. Dunphy J.
COUNSEL: Kris Rana, for the self Evelyn Ten Cate, for the Defendant/Moving Party
HEARD: April 7, 2016
Endorsement
[1] Our courts are increasingly faced with the challenge of balancing the interests of litigants in cases where one party has demonstrated a marked inability to cope with the pressures of conducting a litigation case in accordance with the Rules of Civil Procedure applicable to all by reason of personal circumstances. This is by no means the case with all self-represented litigants, but it is unfortunately the case with some. In this case, every accommodation has been shown to this plaintiff who has abused the process of the court and failed to comply with orders requiring her to pay costs. There comes a point where the interests of justice require firm action. This is such a case.
[2] Protecting the right of public access to the court system is a fundamental value of our justice system. However, with rights comes the obligation to exercise them responsibly and in compliance with the same rules that apply to all litigants. Accommodation of the needs of one litigant cannot be at the expense of unfairness to the other or abuse of the court’s process. This court must ensure compliance with the orders that are made in the course of litigation because failure to do so is ultimately corrosive of the entire justice system.
Overview of Facts
[3] The plaintiff Ms. Kris Rana has brought a claim against the defendant Unifund for denying her coverage under what she claims was a valid auto insurance policy. Unifund claims that the plaintiff herself had removed liability coverage when travelling out of the country and chose not to resume full liability coverage on her return. The plaintiff claims that the Certificate of Insurance she received was misleading and that she reasonably believed that she was fully covered. The coverage issue arose as a result of an accident that occurred in July 2011 for which she was charged and convicted of impaired driving.
[4] The plaintiff originally brought the matter in Small Claims Court. A mistrial was declared in September 2013 after two hearing days. The Deputy Judge declared a mistrial because of the plaintiff’s repeated reference to privileged settlement offers of the defendant.
[5] The driver of the vehicle she collided with in the accident sued for damages in September 2013. She was served with that claim shortly after her Small Claims Court hearing was terminated. She decided to increase her claim for damages against the defendant Unifund and moved to transfer her file from Small Claims Court to Superior Court. At the same time, she filed a fresh Statement of Claim in Superior Court that again made reference to the defendant’s settlement offers.
[6] On January 23, 2014, Kiteley J. granted the plaintiff’s request to transfer the file but required her to file a fresh Statement of Claim that did not contain references to the settlement offers. The plaintiff appealed the order of Kiteley J. to the Court of Appeal. That appeal was dismissed with an order that she pay the defendant’s costs in the amount of $5,000 on September 26, 2014. This first costs order was not paid. It has since been partially satisfied by way of set-off.
[7] On January 27, 2015, the plaintiff filed a Jury Notice requiring this claim to be heard by a jury.
[8] The plaintiff attempted to appeal further to the Supreme Court of Canada, her leave application being dismissed on March 5, 2015. The defendant obtained an assessment of its costs for this application in the amount of $1,646.85 on June 15, 2015. This costs order made against her remains unpaid.
[9] The plaintiff brought a motion before Spence J. on February 10, 2015 to set trial and pre-trial dates without submitting to examination for discovery. Her motion was denied by Spence J. and she was ordered to attend an examination for discovery and pay the defendant $3,500 in costs within 45 days. This costs order remains unpaid.
[10] The plaintiff was examined for discovery on April 15, 2015. On June 9, 2015, Chapnik J. set a pre-trial date for November 16, 2015 and set a trial date for a ten day jury trial on January 4, 2016.
[11] The plaintiff sought to appeal the order of Spence J. to the Divisional Court without seeking leave. The defendant’s motion to quash the appeal was heard by Perell J. on June 17, 2015. The plaintiff was allowed to bring a motion for leave to appeal the order of Spence J. and the motion was then dismissed with costs payable to the defendant in any event of the cause fixed at $3,500. This costs order, being in any event of the cause, is not due.
[12] The defendant brought a motion pursuant to Rule 57.03(2) and Rule 60.12 of the Rules of Civil Procedure seeking to have the plaintiff’s claim dismissed due to her failure to pay the costs ordered by Spence J. That motion was heard by Sanderson J. on June 26, 2015. Sanderson J. dismissed the defendants’ motion in detailed reasons released on July 27, 2015 that I shall refer to below (reported at 2015 ONSC 4719). Sanderson J. awarded the self-represented plaintiff costs of the motion that she fixed at $3,500.
[13] The defendant submits that it elected not to appeal this costs order despite the plaintiff having no costs to indemnify but elected instead simply to offset the award against the plaintiff’s other outstanding cost obligations (which exceeded $10,000 at this point). Whatever the reason, Unifund did not appeal the order of Sanderson J.
[14] The order of Sanderson J. specified no time for payment of the costs awarded against the defendant. The defendant having elected to satisfy this order by way of set-off, I find that the defendant has satisfied this obligation in full by way of set-off against the oldest outstanding order in favour of the defendant, being the September 26, 2014 order of the Court of Appeal (leaving $1,500 plus interest payable pursuant to that order).
[15] The record before me indicates that the plaintiff suffered a broken tibia in a fall that occurred in August 2015. She re-injured that fracture (and suffered additional injuries) while driving her car in her parking garage while wearing a cast in October 2015. The plaintiff’s medical records before me also indicate that the plaintiff was then experiencing mental health issues for which she sought assistance at that time.
[16] The plaintiff attended her pre-trial in November 2015 and gave no notice of any pending medical issues that might impact the timing of the trial.
[17] On January 4, 2016, the plaintiff’s ten day jury trial was scheduled to begin. Immediately prior to commencing the jury selection process, the plaintiff advised defendant’s counsel that she would be seeking an adjournment. She said that she suspected that she had re-injured her leg that morning in an accident in her bathtub. No prior notice of an adjournment request had been given.
[18] Upon being advised of these facts, Dow J. adjourned the trial for 24 hours to permit the plaintiff to attend at the hospital to seek medical attention and to provide the court and the defendant with medical evidence to substantiate her claim. Later that day a note was sent by the hospital to the defendant that read as follows:
“She claim that had a slip and fall and injured right leg on August 16, 2015. She claim to have car accident and injured her right thigh on October 8, 2015. She had fracture to her right femur and right tibia. She need work off 2 month to pain.”
[19] The defendant advised the plaintiff that it would not consent to an adjournment on the strength of this note. Shortly afterwards a second note arrived from the hospital as follows:
“She claim to have slip and fall on right leg. She sustain fracture to the tibia on August 16, 2015. She claim to have car accident and fracture right thigh on October 8, 2015. She admit to Toronto Western Hospital for 10 days. She is on pain medication. She can not mentally functioning likely for 2 months”.
[20] Neither of the two medical notes submitted by the plaintiff substantiated her claim to having re-injured her leg that morning as she had claimed before Dow J. nor the effect of any injury on proceeding with the scheduled trial.
[21] The plaintiff did not appear at the resumption of her trial on January 5, 2016. She sent a friend who advised the court that the doctor had advised the plaintiff to stay off her feet. Dow J. granted the plaintiff an adjournment until the next available date (being January 20, 2017), making the date peremptory to the plaintiff. The plaintiff was ordered to pay costs thrown away in the amount of $3,500 plus HST (total $3,729) within 45 days, failing which the defendant was authorized to move for further relief before him on March 14, 2016. He also ordered the plaintiff to consent to production of her medical records.
[22] The defendant has filed an affidavit evidencing the plaintiff threatening to bring proceedings against judges, court staff and the defendant’s counsel for “unruly judgments amounts and harassing” her. The plaintiff has not denied this evidence.
[23] The medical records ordered to be produced were obtained by the defendant shortly before the hearing of this motion. A review of the records produced provided no confirmation of the fresh injury the plaintiff claimed to have sustained on January 4, 2016 when she sought an adjournment of her trial. They do contain some confirmation of the issues referenced in the two notes of January 4, 2015 quoted above. In the interests of protection of privacy, I shall not quote further from that medical evidence.
[24] The defendant’s evidence on this motion is that the plaintiff advised counsel for the defendant that she did not intend to pay the costs ordered by Dow J. The plaintiff has not contested this evidence.
[25] The plaintiff issued a notice of motion dated February 4, 2016 that she served on the plaintiff on February 10, 2016. The Notice of Motion purported to be returnable on February 23, 2016 and sought to vary or set aside the order of Dow J. Among other things, the Notice of Motion claimed that the plaintiff had completely forgotten about the up-coming trial date and it was then too late to ask for an adjournment. This was not the explanation she had given Dow J. when she asked for and received the adjournment.
[26] On February 19, 2016 the plaintiff served an affidavit in support of her motion to set aside or vary the order of Dow J. but neglected to file a motion record. Accordingly the motion was not placed on the list for February 23, 2016 and the defendant’s counsel’s trip from London to attend the motion was wasted. The motion was re-scheduled for April 7, 2016.
[27] The plaintiff has successfully brought other motions in this proceeding and demonstrated familiarity with filing motion records. I do not accept her attempt to blame court staff for her failing in setting the February 23, 2016 motion down properly.
[28] The plaintiff did not satisfy the order of Dow J. by paying the costs within 45 days as required. Accordingly, the defendant brought this motion as it was authorized by Dow J. to do seeking further relief. The motion was originally returnable before Dow J. on March 14, 2016 as he had directed.
[29] Immediately before the commencement of the hearing of the defendant’s motion on March 14, 2016, the plaintiff left the courtroom and complained of coughing and of pain. She requested an ambulance. An ambulance was called and paramedics attended upon her. She attended briefly before Dow J. on a stretcher in the company of EMS attendants. Dow J. ordered the defendant’s motion adjourned to be heard on April 7, 2016 at the same time as the plaintiff’s motion. The plaintiff indicated that she did not want Dow J. to hear the motion because she did not trust his judgment.
[30] Both the plaintiff’s motion to set aside or vary the order of Dow J. and the defendant’s motion to dismiss the plaintiff’s claim came on before me on April 7, 2016. The plaintiff asked me to hear and decide her motion to set aside or vary first. I agreed to do so.
[31] In reasons delivered in court after a brief recess, I dismissed her motion to set aside or vary the order of Dow J. I noted that I have no jurisdiction to set aside or vary the order of a fellow Superior Court judge and the plaintiff’s attempt to ground her motion in the Human Rights Code instead of the Rules of Civil Procedure was misguided. The plaintiff had been advised by defendant’s counsel of the correct route to follow and had chosen to disregard that advice. I awarded costs in the amount of $4,500 payable within 30 days pursuant to Rule 57.03.
[32] It is sufficient to say that the plaintiff was visibly upset at her lack of success with her first motion. Although I had carefully gone through all of the materials filed by both sides at the outset of the hearing, the plaintiff then proceeded to reach into her bag and produced two new volumes of an “affidavit” sworn the day prior. She had not signaled the existence of this additional material at the opening of the hearing although I had asked her if I had everything from her. She had neither served the defendant nor advised the defendant of its existence.
[33] A review of the material indicated that one of the two volumes was given over entirely to making strange (and, needless to say, entirely baseless and unsubstantiated) allegations of extensive judicial corruption. In the course of argument on her motion, she made similar insinuations on more than one occasion and I warned her against continuing along that line. The plaintiff’s argument on the defendant’s motion nevertheless continually reverted to this theme, despite my warnings.
[34] The presentation of the balance of her argument was delivered in a state of increasing agitation culminating in her abrupt departure. She suggested yet a further reason for her adjournment of the trial relating to her monthly period. She accused me as presiding judge of corruption. She demanded the matter be adjourned to another judge on a different date. She declined offers to adjourn the matter for lunch to enable her to compose herself. Her behaviour was thoroughly disruptive and out of control. It appeared not coincidentally to be in pursuit of the same objective that she gave voice to on March 14, 2016: obtaining a new hearing before a different judge.
[35] The plaintiff having left the room and refused all offers to resume to allow her to make further submissions, I took the matter under reserve.
Issues
[36] The following issue is raised by this motion:
a. Does the conduct of the plaintiff warrant the exercise of the court’s discretion to dismiss the action pursuant to Rule 57.03(2) and 60.12(b)?
Analysis and Discussion
[37] Rule 57.03(2) of the Rules of Civil Procedure addresses the narrow matter of unpaid costs while Rule 60.12 addresses interlocutory orders generally. The defendant’s motion relies upon both. Both Rules give the court broad discretion to sanction non-compliance with an order by dismissing the action or striking the pleading as well as to make a lesser order, including a stay of proceedings or “such other order as is just”.
[38] There is no dispute that the following costs awards have been made in favour of the defendant and have not been complied with by the plaintiff:
a. Costs award of Dow J. dated January 5, 2016 in the amount of $3,729; b. Costs award of Spence J. dated February 10, 2015 in the amount of $3,500; c. Costs order of the Court of Appeal dated September 26, 2014 in the amount of $5,000; and d. Costs order of the Supreme Court of Canada dated June 16, 2015 in the amount of $1,646.85.
[39] The total of the above costs orders is $13,875.85. The plaintiff received a costs order in her favour from Sanderson J. of $3,500 that the defendant elected to set-off against outstanding costs orders in its favour. The oldest outstanding costs award being that of the Court of Appeal dated September 26, 2014, the plaintiff would be entitled to a credit in the amount of $3,500 against that obligation, leaving a balance due under that order of $1,500 plus interest. Even after crediting that sum, the plaintiff has failed to satisfy costs orders in the total amount of $10,375.85.
[40] In addition to the foregoing orders, the plaintiff was ordered by Perell J. to pay costs of $3,500 in any event of the cause arising out of her unsuccessful appeal to the Divisional Court of the order of Spence J. That award of costs is thus outstanding but not due.
[41] The plaintiff takes issue with my considering the last two orders in the above list. Those two orders (made by the Court of Appeal and the Supreme Court of Canada respectively) arose in connection with her unsuccessful appeal of the order of Kiteley J. dated January 23, 2014 that required her to file a fresh Statement of Claim in this action. In her view, those orders should be considered as if they were entirely separate proceedings and should have no bearing on my determination of this motion. She submits that since the court file numbers were different, they cannot be referred to here.
[42] The plaintiff appears to treat those orders as if they are dead letters because the temporary file has been closed with the filing of the statement of claim in this action (as she was ordered to do by Kiteley J.) They are not. While the two unsatisfied appellate orders may not fall within either Rule 57.03(2) or 60.12, they may be considered as relevant factors when considering what consequences should attach to her non-compliance with the order of Dow J. dated January 5, 2016.
[43] The plaintiff suggests that I ought to consider the defendant’s motion to be frivolous. She submits that the plaintiff has already sought to strike her claim once on similar grounds before Sanderson J. and its motion was dismissed.
[44] I have given careful consideration to the very detailed reasons delivered by Sanderson J. on the defendant’s prior motion to enforce the unpaid order of Spence J. (reported at 2015 ONSC 4719). The plaintiff has failed to take to heart the comments of Sanderson J. and has chosen to continue to level baseless charges of virtually universal judicial corruption at every judge she perceives to have ruled against her – including the Chief Justice of Canada. She accuses the defendants of bribing judicial officials and has recently threatened to launch fresh proceedings against court clerks and counsel for the defendant. She has continued to file clearly privileged settlement documents in court by way of affidavit despite numerous prior warnings that she cease doing so. I am satisfied that the plaintiff has entirely squandered the second chance given her by Sanderson J.
[45] The plaintiff is correct that Sanderson J. declined to exercise her discretion to stay or dismiss the action in light of the unpaid order of Spence J. She did not, however, vary or stay the order of Spence J. and the obligation to pay pursuant to that order remains unsatisfied. I would however not be considering this motion were it founded solely upon the unsatisfied order of Spence J. That is not the case. The defendant has fresh grounds for its motion in light of the deliberate refusal of the plaintiff to comply with the order of Dow J. dated January 5, 2016. In considering this fresh motion, I may consider all of the plaintiff’s conduct in the litigation to date, including the conduct previously considered by Sanderson J., in light of subsequent events. All of these are relevant factors to inform the exercise of my discretion.
[46] The plaintiff suggests that I ought not to grant the defendant the relief it seeks because she is impecunious and cannot afford to pay the costs that she has already been ordered to pay. I do not agree.
[47] The plaintiff has filed very scant evidence of her assets and income. She has said that she lives on Ontario Disability benefits but also suggests that she is being supported by her mother and can pay the costs awards if she wants to. She has at times suggested that she might pay the costs ordered by Dow J. if given time, at other times indicating that she would not pay until after trial (adjourned to January 30, 2017). The evidence of her means is, at best, inconsistent and unsatisfactory. The plaintiff’s evidence on this motion was very often internally inconsistent or fantastic. I am reluctant to accept much of what she has set forth in her affidavits as accurate. I cannot find on this record that the plaintiff lacks the means to pay the costs awarded against her.
[48] Furthermore, impecuniosity cannot be raised up as a shield against failure to comply with a court order. Were I to relieve the plaintiff of the consequences of failing to comply with the order of Dow J. of January 5, 2016, I would indirectly be sitting in appeal of that order: Bottan v. Vroom, 2001 O.J. No. 2737, at para. 23; aff’d.
[49] In my view, impecuniosity is not a “defence” to a motion under Rule 57.03(2) or Rule 60.12 of the Rules of Civil Procedure per se. Rather, impecuniosity is simply a factor that may tell in the exercise of the court’s discretion to make an order staying or dismissing the proceeding or any other order that is just. Where impecuniosity is a potential factor, however, it ought properly to be weighed in the balance along with other relevant factors including a careful consideration of the conduct of the party seeking to excuse their non-performance of an order.
[50] I have carefully reviewed the authorities cited to me and the following principles would appear to be relevant guides to the exercise of my discretion:
a. Where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused; failing to act may deprive the moving party of justice according to law and risks rendering the court a paper tiger: Bottan v. Vroom, at para. 24-25; b. The right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court - to exempt impecunious parties from the enforcement of costs orders when made would amount to granting “carte blanche to continue to ignore the rules and orders of the court and take unsupportable steps in the action without fear of consequences” per Master Dash in Heu v. Forder Estate, 2011 ONSC 16198 at para. 19-20; c. The court ought not to sit in appeal of the prior costs awards – the respondent will have had the opportunity to make submissions about impecuniosity at the prior hearings that resulted in the costs orders and seeking to relieve against prior costs orders constitutes a collateral attack on orders previously made: Bottan v Vroom, at para. 23; Visic v. University of Windsor, 2013 ONSC 2063 at para. 36 and 66; Trewin v. MacDonald, [2008] O.J. No. 2821 (ONSC) at para. 26; d. The court may have regard to a pattern of unnecessary and unreasonable steps taken in the proceeding, including appealing numerous orders without chance of success or knowing the risk thereby imposing costs upon the other party: Visic v. University of Windsor at para. 68; e. If the orders of the court are “cavalierly ignored” and if a litigant “continuously fails to comply with her obligations as a litigant and then fails to abide by the costs consequences attendant upon that behavior, the court is justified in bringing some finality to the action” (per Master Dash in Burrell v Peel (Regional Municipality) Police Services Board, 2007 ONSC 46173 at para 63; aff’d 2010 ONSC 1387; f. Impecuniosity is not a shield for unreasonable conduct of litigation and a dismissal order may be made even if it resolves the matter on procedural rather than substantive grounds: Baradaran v. Tarion Corp., 2014 ONSC 6870; g. Self-represented litigants, while entitled to some accommodation and assistance to ensure a fair hearing, are not entitled to abuse the system or the party opposite and failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system: per Myers J. in Baradaran v. Tarion Corp., 2015 ONSC 7892; Bilich v. Toronto (City) Police Services Board, 2014 ONSC 6765; h. “Courts usually talk in terms of prejudice that cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them”: per D.M. Brown J.A. in Schwilgin v. Szivy, 2015 ONCA 816 at para. 23.
[51] In applying these principles to the facts of the present case, I have reached the conclusion that the conduct of this plaintiff has reached the point where the interests of justice require the dismissal of the plaintiff’s claim subject to providing her with one last chance to obey the orders made and pursue her claim. The following factors among others have been weighed by me in addition to her non-compliance with the costs order of Dow J:
a. The plaintiff has persisted in referencing settlement offers made by the defendant despite the mistrial of her Small Claims Court action and refuses to accept direction of the court. She produced still further settlement documents from the defendant during the hearing before me (the defendant did not ask me to recuse myself). The plaintiff can no longer allege ignorance of the law on this point and simply chooses to ignore rules and rulings she wishes to ignore; b. The plaintiff has persisted in making baseless and offensive allegations that the defendant is bribing judges of the Superior Court, the Court of Appeal and the Supreme Court of Canada (virtually any judge that has rendered a decision she considers adverse to her) and continued to do so at the hearing of this motion despite being repeatedly warned against doing so; c. The plaintiff brought her purported appeal of the order of Dow J. by way of a Human Rights Code motion ignoring the advice of the defendant’s counsel regarding the proper route of appeal (which, from her prior appeals, she was well familiar with); d. The plaintiff has caused the defendant unnecessary expense with her mishandling of her appeal of the order of Dow J.; and e. The plaintiff’s conduct of the hearing of this motion was disrespectful and often abusive – she filed two volumes of “sworn affidavit” evidence mid-way through her presentation, much of which was devoted to repeating the same corruption allegations that she had already been repeatedly warned about continuing to make.
[52] The plaintiff sought and obtained a last-second adjournment of her ten-day jury trial virtually at the opening. Before Dow J. she claimed that she had slipped in the bathtub that morning and heard a “pop” making her fear that she had re-injured her leg that had been broken in August and re-injured in October. No evidence of the claimed re-injury was confirmed by either of the two notes sent by the examining doctor in the Emergency Room at Toronto Western, although mental health issues were signaled. No subsequent medical evidence submitted by the defendant has confirmed the alleged re-injury either. Further, when filing her Notice of Motion seeking to appeal the costs order of Dow J., the plaintiff alleged that she had forgotten about the trial date.
[53] There is a very strong suggestion from the evidence in the record before me that the plaintiff misled the court about her adjournment. Before me, she alleged still further reasons not raised before Dow J.
[54] The plaintiff was unable to continue with the hearing of this motion on March 14, 2016 and, from the comments she made on the record, left the strong suspicion that her reasons related more to her distrust of Dow J. than to any actual medical emergency. No objective evidence confirming the existence of a bona fide medical emergency on March 14, 2016 has been provided. The plaintiff’s behavior before me was highly disruptive and disrespectful. Her request for a separate ruling on her motion to vary coupled with her demand that I adjourn the defendant’s motion to be heard by a new judge strongly suggest that she was seeking to repeat the outcome of her March 14, 2016 appearance if she did not obtain the result she wanted on her own motion.
[55] In short, the plaintiff’s recent appearances have been characterized by disruption, drama and no forward progress in the moving of this action towards a resolution. The plaintiff has utterly squandered the indulgence extended to her by Sanderson J. The plaintiff shows no signs of being able to follow directions or govern her behavior as a responsible litigant. The defendant has been put to very significant expense through no fault of its own. The plaintiff has made it quite clear that she will not obey the order of Dow J. and her suggestions at the hearing that she might if given time are not credible. She has not paid a single costs order made against her and I can see no reason to believe that will change.
[56] On the record before me, the urgency of a hearing of this claim in order to secure a defence in the pending personal injury action (Court file CV-13-3463-00 in Pimentel v Kris Rana and Axa Pacific Insurance Company, now known as Intact) is of no apparent importance to the plaintiff. There is nothing on the record before me to suggest that she is taking any interest in that proceeding. She has not taken steps to require Unifund to defend that action as her insurer despite quite clear suggestions she consider doing so in the ruling of Sanderson J. I am not persuaded that the plaintiff has any interest in a swift hearing of this claim – to the contrary, her motion materials were critical of Dow J. for adjourning her trial to the next available trial date because it was in winter (January 2017), presumably suggesting that a later date would be preferable. On the record before me, I cannot conclude that the Pimentel matter is the motivating factor behind her claim against the defendant Unifund. The plaintiff is pursuing other objectives.
[57] It would be unfair to this defendant to be required to answer the plaintiff’s claims in court when the plaintiff herself simply refuses to abide by the orders of that same court.
[58] Fairness requires firm action to restore respect for the integrity of the process of the court. As strongly inclined as I might be to order an immediate dismissal, I recognize that such an order ought to be a last and not first resort. I am of the view that a last chance to “come on side” ought to be given. Accordingly, I am making the following order:
a. The plaintiff’s action is stayed pursuant to Rule 60.12 and Rule 57.03(2) of the Rules of Civil Procedure; b. The plaintiff is prohibited from bringing any further motions in the proceeding without leave of the court first being obtained pursuant to Rule 37.16 of the Rules of Civil Procedure; c. The stay of proceedings shall be removed upon the plaintiff paying to the defendant in full: i. The costs ordered by Dow J. in his order of January 5, 2016 in the amount of $3,729; ii. The costs ordered by Spence J. in the amount of $3,500 in his order of February 10, 2015; and iii. The costs ordered by me on April 7, 2016 in the amount of $4,500 in respect of the plaintiff’s motion to vary or set aside the order of Dow J.; and d. If the foregoing amounts are not paid in full within thirty days of the date of release of these reasons, the plaintiff’s claim shall be dismissed without further notice or motion and the defendant shall be entitled to apply for an order dismissing the action upon filing an affidavit certifying non-payment of any of the amounts ordered to be paid in the preceding paragraph.
[59] In my view, the foregoing order strikes a reasonable balance in very difficult circumstances. The plaintiff is being afforded one last chance to salvage her claim and to obey the orders that have been made against her. The defendant has been put to actual expenses that far exceed the amount of partial indemnity costs that have been awarded to it. Fairness dictates that plaintiff not put the defendant to still more expense if the plaintiff ignores this order as well. This is intended to be a last chance, not the opening chapter of another motion. If the plaintiff obeys this order, she may proceed with her claim. If she does not, the defendant should be entitled to obtain some finality without being put to further expense upon filing an affidavit certifying non-compliance.
Conclusion
[60] The plaintiff’s conduct has demonstrated a persistent abuse of the process of the court that appears to be worsening with time. I have grave doubt that she will be able to conduct this claim on her own, particularly before a jury, as a self-represented litigant. There is no motion before me to consider that issue. There may be a number of factors at work to explain her behavior but accommodation of these issues cannot be at the expense of losing control of the process of the court or visiting further unfairness upon the defendant. I can see no appropriate remedy short of dismissal of her claim if she is unable to seize this last chance. The defendant is entitled to fairness from the court too.
[61] I am therefore allowing the defendant’s motion subject to the conditions outlined above.
[62] I am reserving the matter of costs should the defendant be seeking costs over and above the $4,500 I have already awarded to the defendant in respect of the plaintiff’s unsuccessful motion to set aside or vary the order of Dow J. If the defendant is seeking costs, an outline of costs should be served along with written argument not to exceed three pages within 45 days of the date of release of these reasons and Ms. Rana shall be given a further 30 days to respond with written argument that should also not exceed three pages. Costs submissions may be submitted electronically via my assistant or delivered to my attention at Judges Administration Room 107, 361 University Avenue, Toronto.
Sean F. Dunphy J. Date: April 19, 2016