2016 ONSC 5460
COURT FILE NO.: CV-11-00421589
DATE HEARD: 20160824
ENDORSEMENT RELEASED: 20160831
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tatiana Popovski v. Timbercreek Asset Management Inc.
BEFORE: Master B. McAfee
COUNSEL: N. Buhary for the Moving Party, the Defendant
T. Popovski, in Person, Responding Party, the Plaintiff
REASONS FOR DECISION
Nature of the Motion
[1] This is a motion brought by the defendant for an order dismissing the plaintiff’s action for failure to answer undertakings and for failure to comply with the order of Justice Lederman dated November 13, 2015. In the alternative, the defendant seeks an order that the plaintiff answer her undertakings within 30 days, failing which the defendant may move without notice to dismiss the action with costs.
[2] The plaintiff opposes the motion.
Preliminary Issue
[3] At the outset of argument on August 24, 2016, the plaintiff raised an issue for the first time. The plaintiff submitted that it may not be appropriate for me to hear this motion because I previously made an order dismissing the action and that dismissal order was set aside.
[4] The plaintiff did not have a copy of the dismissal order. According to the case history, the action was dismissed by another Master at a status hearing due to the plaintiff’s failure to attend the status hearing. Even if I had dismissed the plaintiff’s action at the status hearing, and it does not appear that I did, there is no basis for the plaintiff’s submission that it would not be appropriate for me to hear this motion.
Undertakings
[5] On November 13, 2015, Justice Lederman set aside the order of the Master who dismissed the action at the status hearing. Justice Lederman also ordered that all of the plaintiff’s undertakings be answered within 30 days (see page 2 of the Ruling of Justice Lederman dated November 13, 2015).
[6] Although some undertakings have now been answered, it is the position of the defendant that sixteen undertakings remain unanswered, contrary to the order of Justice Lederman and contrary to Rule 31.07(1)(c).
[7] What follows are my rulings on the sixteen undertakings at issue. The below references are taken from the updated Form 37C chart contained in the defendant’s supplementary motion record.
Undertaking No. 1:
[8] The plaintiff has not produced the records.
[9] The plaintiff submits that this undertaking was not contained in the list of undertakings that was before Justice Lederman. This undertaking is listed as number 1 on that list. The list of undertakings before Justice Lederman was prepared based on notes made by defendant’s counsel at the examination for discovery. The wording in the Form 37C chart is based on the transcript. The wording is very similar. Nothing turns on the slightly different wording. The plaintiff is obligated to answer her undertakings.
[10] The plaintiff submits that she was advised by the Toronto General Hospital that that she could not obtain a copy of the records herself. The plaintiff also submits that she has been told this same information from the other doctors whose records she undertook to produce. There is nothing from the hospital or the doctors confirming their position in this regard.
[11] The plaintiff further submits that she has been advised of the cost of obtaining the records, from the hospital and various doctors, and that the cost to obtain the records is too high. The plaintiff submits that the defendant should pay the cost of obtaining the records. I was not referred to any evidence in the transcript or elsewhere indicating that the defendant agreed to pay the cost of production. There being no agreement to the contrary, the plaintiff is required to bear the cost of production (Demiroglu v. Kwarteng, [1999] O.J. No. 3117 (Ont.S.C.J.); affirmed, [2000] O.J. No. 4526 (Ont.Div.Ct.)). At the end of the day, payment of these disbursements could be revisted depending on the outcome at trial and subject to the discretion of the trial Judge.
[12] The plaintiff further submits that she is willing to sign an authorization for the defendant to obtain the records directly. The plaintiff undertook to produce the records, not to provide an authorization so the defendant could obtain the records.
[13] The plaintiff shall make an immediate written request to the hospital for the records. The written request shall include an appropriate authorization. Any fee that is required to be paid before the records are released shall also be included. The written request shall be copied to defendant’s counsel. If no records are received within 21 days from the initial written request, a written follow up request shall be made and copied to defendant’s counsel.
[14] The undertaking has not been answered. I am not satisfied that best efforts to answer the undertaking have been made.
Undertaking No. 2:
[15] The plaintiff submits that the doctor will not provide the file to her directly. The plaintiff also submits that the cost of obtaining the file should be paid by the defendant. See ruling on undertaking no. 1 above.
[16] The plaintiff also submits that the defendant should draft a letter for the plaintiff to send to the doctor. It is not the defendant’s responsibility to assist the plaintiff in answering her undertakings.
[17] The plaintiff shall make an immediate written request to the doctor for the records. The written request shall include an appropriate authorization. Any fee that is required to be paid before the records are released shall also be included. The written request shall be copied to defendant’s counsel. If no records are received within 21 days from the initial written request, a follow up written request shall be made and copied to defendant’s counsel.
[18] The undertaking has not been answered. I am not satisfied that best efforts to answer the undertaking have been made.
Undertaking no. 4:
[19] The plaintiff states that she has provided everything that Shoppers Drug Mart provided.
[20] The undertaking has been partially answered. The records from May 2009 to February 2010 remain outstanding. There is no indication that the plaintiff followed up with Shoppers Drug Mart for the records from May 2009 to February 2010 nor is there any information that the plaintiff did not use the Shoppers Drug Mart for prescriptions prior to February 2010.
[21] The plaintiff shall make an immediate written request to Shoppers Drug Mart for the records from May 2009 to February 2010. The written request shall include an appropriate authorization. Any fee that is required to be paid before the records are released shall also be included. The written request shall be copied to defendant’s counsel. If no records are received within 21 days from the initial written request, a follow up written request shall be made and copied to defendant’s counsel.
[22] The undertaking with respect to records from May 2009 to February 2010 has not been answered. I am not satisfied that best efforts to answer the undertaking have been made.
Undertaking No. 5:
[23] The plaintiff submits that this undertaking was not contained in the list of undertakings before Justice Lederman. This undertaking appears as number 7 on that list.
[24] The defendant requests updated income tax returns from 2009 to present. If the plaintiff has filed income tax returns from 2009 to present, she is required to produce the records. If the plaintiff has not yet filed any income tax returns from 2009 to present, the plaintiff shall immediately advise defendant’s counsel in writing. If the income tax returns have been filed, the plaintiff shall make an immediate written request to the Canada Revenue Agency for the records. The request shall include an appropriate authorization. Any fee that may be required before the records are released shall also be included. The written request shall be copied to defendant’s counsel.
[25] The undertaking has not been answered.
Undertaking No. 6:
[26] The plaintiff disputes that this is an undertaking. This undertaking is listed as number 5 in the list that was before Justice Lederman and is also set out in the transcript.
[27] The plaintiff submits that the doctor will not give her a copy of her file directly. The plaintiff submits that the defendant should pay for the records. See ruling on undertaking no. 1 above.
[28] The plaintiff shall make an immediate written request to the doctor for the records. The written request shall include an appropriate authorization. Any fee that is required to be paid before the records are released shall also be included. The written request shall be copied to defendant’s counsel. If no records are received within 21 days from the initial written request, a follow up written request shall be made and copied to defendant’s counsel.
[29] The undertaking has not been answered. I am not satisfied that best efforts to answer the undertaking have been made.
Undertaking No. 7:
[30] An OHIP summary from January 1, 2005 to December 1, 2011 has been produced. An updated decoded OHIP summary post-dating December 1, 2011, has not been produced.
[31] The plaintiff shall make an immediate written request for the records. The written request shall include an appropriate authorization. Any fee that OHIP may require before the records are released shall also be included. The written request shall be copied to defendant’s counsel.
[32] The undertaking has not been answered.
Undertaking No. 8:
[33] The plaintiff submits that this undertaking is not on the list of undertakings that was before Justice Lederman. A similarly worded undertaking is listed as number 9 on that list.
[34] If there are documents, the plaintiff shall produce the documents or make best efforts to produce the documents and advise of those efforts. If there are no documents, the plaintiff shall state in writing that there are no documents.
[35] The undertaking has not been answered.
Undertaking No. 9:
[36] The response in the plaintiff’s chart is unclear.
[37] If the plaintiff does not have evidence that she repaid the $9,500 loan from her parents, then the plaintiff shall advise the defendant in writing. If the plaintiff does have evidence, the plaintiff shall produce that evidence or make best efforts to produce that evidence and advise in writing of those efforts.
[38] The undertaking has not been answered.
Undertaking No. 11:
[39] The plaintiff submits that this undertaking was not in the list of undertakings before Justice Lederman. This undertaking is listed as number 11 on that list.
[40] The plaintiff also submits that she does not know which agents or offices are the subject matter of the undertaking. At her examination for discovery the plaintiff undertook to clarify the names and office locations of five agents that she worked with in the past. The five agents are specifically listed in the transcript.
[41] The undertaking has not been answered.
Undertaking No. 12:
[42] No executional plan has been produced. It was the plaintiff herself who, on discovery, clarified that what the defendant was requesting was not a business plan but an executional plan (Q. 388). The plaintiff now states that she is not clear with respect to what is meant by an executional plan. The plaintiff also states that the executional plan was included as part of the business plan.
[43] If there is an executional plan, it shall be produced in accordance with the undertaking. If there is no executional plan, the plaintiff shall so advise defendant’s counsel in writing. If the business plan and executional plan are the same document, the plaintiff shall so advise defendant’s counsel in writing and shall produce a copy of the document.
[44] The undertaking has not been answered.
Undertaking No. 13:
[45] The plaintiff submits that the business plan has been produced and is found at exhibit 8 of her documents.
[46] There is a business plan at exhibit 8. The business plan does not specifically refer to the Spadina Location.
[47] The plaintiff shall confirm that the business plan at exhibit 8 is the business plan for the Spadina location. If it is not the business plan for the Spadina location, the business plan for the Spadina location shall be produced.
[48] The undertaking has not been answered.
Undertaking No. 17:
[49] The TD Bank records for Sol Café have not been produced.
[50] If the plaintiff does not have the records in her immediate possession she shall immediately request the records from the TD Bank.
[51] The undertaking has not been answered. There is no evidence of best efforts to answer the undertaking.
Undertaking No. 18:
[52] On her examination for discovery there is reference to a summary that the plaintiff created (Q. 497). The plaintiff now states that the summary requested does not exist.
[53] The undertaking has not been answered. There is no evidence of best efforts to answer the undertaking.
Undertaking No. 19:
[54] The plaintiff does not know where this undertaking comes from. The undertaking is listed as number 15 in the list that was before Justice Lederman and is in the transcript (P. 118).
[55] The answer in the plaintiff’s responding chart is not responsive.
[56] If the plaintiff hired an accountant who dealt with Sol Café o/a Café St. Germain, the accountant’s file shall be produced. If the plaintiff has not hired an accountant who dealt with Sol Café o/a Café St. Germain, the plaintiff shall advise defendant’s counsel in writing.
[57] The undertaking has not been answered.
Undertaking No. 20:
[58] The plaintiff disputes that this is an undertaking. The undertaking is found in the transcript.
[59] If the financial statements are available, the plaintiff shall produce them. If no financial statements have been prepared, the plaintiff shall advise defendant’s counsel in writing.
[60] The undertaking has not been answered.
Undertaking No. 21:
[61] The plaintiff submits that the doctor will not provide the records to her directly. The plaintiff submits that the defendant should pay the cost of obtaining the records. See ruling on undertaking no. 1 above.
[62] The plaintiff submits that the defendant should draft a letter for her to send to the doctor. See ruling on undertaking no. 2 above.
[63] The plaintiff shall make an immediate written request to the doctor for the records. The written request shall include an appropriate authorization. Any fee that is required to be paid before the records are released shall also be included. The written request shall be copied to defendant’s counsel. If no records are received within 21 days from the initial written request, a follow up written request shall be made and copied to defendant’s counsel.
[64] The undertaking has not been answered. I am not satisfied that the plaintiff has made best efforts to answer this undertaking.
Disposition
[65] I agree with the defendant that sixteen undertakings have not been answered or have only been partially answered.
[66] Although the plaintiff has not answered all of her undertakings, she has answered some of her undertakings. I am not prepared to dismiss the action in all of the circumstances.
[67] I am of the view that it is just in all of the circumstances to make an order that the plaintiff answer all sixteen outstanding undertakings within 30 days of today’s date (see Cineplex Odeon Corp. v. Toronto Star Publishing Ltd., [1986] O.J. No. 2561 (Master)). Any directions that I have provided concerning the answering of certain undertakings shall be followed.
Costs
[68] I am satisfied that the defendant is entitled to costs of the motion. I am also satisfied that an order that costs be payable other than within 30 days would be more just.
[69] The plaintiff is in breach of the order of Justice Lederman. Although the primary relief sought on the motion was not granted, I have made an order that the outstanding undertakings be answered within 30 days.
[70] The defendant seeks costs in the all-inclusive sum of $3,476.13 and in my view that is a fair and reasonable amount that the plaintiff could expect to pay for costs in all of the circumstances of this motion. Costs in the all-inclusive sum of $3,476.13 are payable by the plaintiff to the defendant in the cause.
Master B. McAfee
DATE: August 31, 2016