Court File and Parties

Court File No.: CV-09-390036 Date: 20170324 Superior Court of Justice – Ontario

Re: Luciano Molinaro, Plaintiff And: John Doe #1 and John Doe #2 and The Economical Insurance Group, defendants

Before: Stinson J.

Counsel: No one appearing for the plaintiff Jack Fitch and Cory Young, for the Defendant Economical

Heard at Toronto: March 23, 2017

Endorsement

[1] This ruling concerns a motion brought by the defendant Economical Insurance Group for an order dismissing or staying this action. The trial of this action is currently scheduled to proceed on March 27, 2017. Economical complains that the action should not proceed to trial because the plaintiff, Luciano Molinaro, has failed to comply with two endorsements of Justice Darla Wilson dated January 16, 2017 and February 17, 2017 which, in turn, were based upon Mr. Molinaro’s failure to provide answers to undertakings and otherwise comply with Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] For the reasons that follow, I have concluded that the action should be stayed, on terms. As a result, the trial currently scheduled to proceed on March 27, 2017 will not proceed on that date. Rather, once Mr. Molinaro has complied with the terms of this endorsement, he may seek an order removing the stay and restoring the case to the trial list. Should he fail to satisfy those terms and obtain an order removing the stay by September 30, 2017, Economical may seek an order dismissing the action.

[3] This action concerns a motor vehicle accident that occurred on November 14, 2007. Mr. Molinaro asserts that, while he was driving on Highway 401, his vehicle was sideswiped by a tractor-trailer and he suffered personal injuries as a result. Mr. Molinaro was unable to ascertain the identity of the other vehicle. He ultimately started this lawsuit pursuant to the uninsured/unidentified motorist provisions of his insurance policy with Economical.

[4] The action was commenced on October 28, 2009. A statement of defence was served on April 6, 2010. Mr. Molinaro's examination for discovery took place on June 22, 2010. He gave a number of undertakings and refusals.

[5] Some two years later, counsel for the defendant was advised that Mr. Molinaro's law firm was no longer acting for him and that the file had been transferred to another firm. No notice of change of lawyers was received. On August 20, 2012, the Registrar dismissed the action for delay.

[6] On February 22, 2003, Master Glustein granted Mr. Molinaro's motion to set aside the Registrar's dismissal. That order also removed Mr. Molinaro's former lawyers as lawyers of record and directed him to serve a Notice of Intention to Act in Person. He did so in May 2013.

[7] Master Glustein’s order also directed Mr. Molinaro to answer his undertakings or provide proof of best efforts by May 30, 2013 and to set the action down for trial by September 30, 2013. Mr. Molinaro did not answer his undertakings and did not provide proof of best efforts by May 30, 2013. As a result, Economical brought a motion for an order to obtain answers to the outstanding undertakings. On September 6, 2013, Master Graham ordered Mr. Molinaro (1) to provide answers to various undertakings and refusals within 60 days; (2) provide a sworn affidavit of documents; and (3) pay to Economical $4,000 in costs in any event of the cause.

[8] Economical continued to make efforts to move the action forward, including scheduling a mediation to take place on January 6, 2014. Notice of the mediation was provided to Mr. Molinaro on August 12, 2013. Despite that notice, Mr. Molinaro failed to attend the mediation as scheduled.

[9] On October 6, 2015, Economical brought a motion to dismiss the action for delay. That relief was not granted, but Master Graham made several orders, including one that required Mr. Molinaro to pay Economical $13,700 in costs, in any event of the cause, at the conclusion of the action. Master Graham also ordered Mr. Molinaro to answer all undertakings within 60 days and, within 30 days, to schedule a mandatory mediation to proceed within 120 days, at his expense. Mr. Molinaro did not arrange such a mediation.

[10] By prearrangement, Mr. Molinaro and Economical were to attend in Trial Scheduling Court on December 14, 2015, to set a trial date. Economical did, but Mr. Molinaro did not. As a result, the matter had to be put over to Trial Scheduling Court on January 25, 2016.

[11] On January 25, 2016, the parties attended at Trial Scheduling Court. A pretrial was scheduled for January 16, 2017 and a 10 day jury trial was scheduled to commence on March 27, 2017.

[12] In early January 2017, Economical attempted to serve Mr. Molinaro personally with its pretrial memorandum. After a total of three unsuccessful attempts, the pretrial memorandum was served by mail. Mr. Molinaro was well aware of the January 16, 2017 date. Despite that knowledge, Mr. Molinaro failed to serve a pretrial memorandum as required by the Rules, or at all.

[13] The pretrial conference was scheduled to proceed before Justice Darla Wilson on January 16, 2017. Economical’s representatives attended. Mr. Molinaro did not. Instead, his sister attended and advised that Mr. Molinaro had had a fall while bathing that morning. Justice Wilson made an endorsement noting that Mr. Molinaro had failed to file a pretrial memorandum and had not attended for the reasons indicated. She emphasized the importance of a pretrial and directed Mr. Molinaro’s sister to communicate that information to him. She directed that a further pretrial be arranged, peremptory to Mr. Molinaro.

[14] On February 10, 2017, the trial coordinator notified both Mr. Molinaro and Economical that a second pretrial conference was to take place. The trial coordinator sent Mr. Molinaro a pretrial memorandum template and requested that he serve and file his pretrial memorandum. Once again, Mr. Molinaro failed to file a pretrial memorandum.

[15] On February 17, 2017, Economical’s representatives attended before Justice Wilson for the pretrial conference. Mr. Molinaro again failed to attend.

[16] At the February 17, 2017 pretrial conference, in the absence of Mr. Molinaro, Justice Wilson completed several trial management steps. She noted in her order as follows: “This is the plaintiff's case, and it is unfair to the defendant that he fails to attend these mandatory conferences, for which the defendant missed must prepare."

[17] Justice Wilson made the following specific orders: a) the trial date of 27 March 2017 is peremptory on the plaintiff which means that it will proceed on that date; b) the plaintiff shall provide a list to the defendant of who his witnesses will be at trial by no later than 10 March 2017; c) the plaintiff shall advise the defendant of the name and address of his current family doctor by 22 February 2017; d) the plaintiff shall provide the AB file from 2011 onwards prior to trial; e) Economical's counsel shall send Mr. Molinaro a letter or email setting out the outstanding productions that are necessary to be made prior to trial, such letter or email to be sent by 22 February 2017, and the plaintiff shall provide the documents or authorizations to enable the defendant to obtain them by 6 March 2017; and f) costs of today fixed at $1500 payable forthwith by the plaintiff.

[18] In compliance with Justice Wilson's February 17, 2017 order, counsel for Economical wrote to Mr. Molinaro on February 22, 2017. He reiterated the timelines provided by Justice Wilson, requested the documents pursuant to her order and asked Mr. Molinaro to pay the forthwith costs order in the amount of $1,500. He expressed the view to Mr. Molinaro that, because the costs had been ordered to be paid forthwith, if Mr. Molinaro had not paid them by March 1, 2017, he would seek instructions from Economical to have the action dismissed.

[19] The specific documents and information requested by counsel for Economical in his February 22, 2017 letter were as follows: a) the name and address of Mr. Molinaro's current family physician; b) a complete copy of the accident benefits file from 2011 to date; c) a list of the witnesses Mr. Molinaro intends to call at trial by March 10, 2017; d) various documents or authorizations enabling Economical to obtain documents by March 6, 2017; e) the clinical notes and records of the current treating family physician from 2010 to date; f) the names and addresses of all current treating specialists, as well as complete clinical notes and records from each professional; g) income tax returns for 2008, 2009 and 2011 to 2016; and h) Mr. Molinaro's CPP file from December 4, 2013 to date. In response to this request, Mr. Molinaro provided three signed (but not witnessed) authorizations to obtain his CPP file, his accident benefits file and his personal income tax returns. He did not pay the costs award; indeed, in one of his communications to counsel for Economical, Mr. Molinaro stated that he would not pay the costs award even if he had the funds to do so.

[20] Given the failure of Mr. Molinaro to participate in the pretrial process and his failure to provide the information required for it to properly prepare for trial, and also in light of Mr. Molinaro's failure to pay Justice Wilson’s costs award, Economical decided to bring a motion to stay or dismiss the action. Because of the rapidly approaching date of the trial, Economical sought an early date for the hearing of the motion. The motion was scheduled on short notice, and initially was returnable on March 16, 2017. Mr. Molinaro was only served on March 13, 2017.

[21] Economical’s motion to stay or dismiss came before me on March 16, 2017. Mr. Molinaro did not attend. In light of the significant consequences of the motion – the potential dismissal of the claim – and in light of Mr. Molinaro's absence, I was not prepared to reduce the normal notice period required for the motion. Instead, I adjourned it to return before me a full week later, on March 23, 2017.

[22] In my endorsement dated March 16, 2017, I expressly stated as follows: If Mr. Molinaro wishes to respond to the motion, he should serve and file any responding material by Tuesday 21 March, 2017. At the very least, if Mr. Molinaro wishes to oppose the motion, he should attend in court before me on 23 March 2017. If he fails to do so, Mr. Molinaro's claim may be dismissed or stayed, should the defendant persuade me on that occasion that this relief is appropriate. Mr. Molinaro was provided with a copy of my endorsement by email on the day it was made.

[23] Economical's motion came back before me on 23 March 2017. Mr. Molinaro did not file any material, nor did he attend. No one came on his behalf. Although he had sent email communications to counsel for Economical, none of them excused or explained his absence. I therefore proceeded to hear the motion in his absence.

[24] I understand and appreciate that Mr. Molinaro is self-represented. He is therefore faced with the challenging task of preparing and presenting his own case, both in the lead-up to, and at the trial of his lawsuit. In recognition of that challenge, the court regularly (as has been the case for Mr. Molinaro) grants indulgences to self-represented individuals and forgives inadvertent oversights or non-compliance with the Rules of Civil Procedure, to ensure that unrepresented parties have access to justice.

[25] At the same time, however, the court must be careful not to prejudice the rights of opposing parties. The ultimate goal of the litigation process is to have disputes resolved fairly and expeditiously, while ensuring that each side has a proper opportunity to present its case and also know and respond to the case against it. Where, however, a party fails to produce relevant documents or disclose the identity of its witnesses, the opposite party is unfairly prejudiced in its preparation for trial. The Rules apply to all litigants, whether they are represented by counsel or they act for themselves.

[26] The pretrial conference is an essential step in the litigation process. It provides an opportunity for a judge to assist the parties to try and settle their dispute. Where settlement is not possible, the pretrial judge conducts an all-important trial management exercise. This process is designed to ensure that the case will be ready to proceed when it is called for trial, that all required information and documents have been exchanged, that all witnesses are available and that there are no likely roadblocks to the smooth conduct of the trial. In the absence of proper trial management, there is a far greater risk that a trial will be interrupted due to unanticipated difficulties, or will take longer than necessary because appropriate efforts were not made in advance to simplify the trial process.

[27] It may thus be seen that participation in the pretrial conference is a key step for the parties before they proceed to trial. It is a mandatory process. In this case, despite being given two opportunities to do so, Mr. Molinaro has so far failed to file a pretrial conference memorandum. He has not attended either pretrial conference (although, in fairness to him, his absence on the first occasion was apparently due to a fall).

[28] Mr. Molinaro's failure to respond to the pretrial conference process is not the first occasion upon which he has failed to comply with the Rules or court orders. After his action was dismissed by the Registrar for delay and restored to the list, he did not comply with the timetable to answer undertakings. He failed to attend the mediation. He did not schedule a further mediation as directed. He failed to attend the first time in trial scheduling court. He has been generally nonresponsive to the defendant’s reasonable requests for information to enable it to prepare properly for trial. The defendant has been forced to bring multiple motions. Most recently, Mr. Molinaro indicated that he is unprepared to abide by Justice Wilson's order as to costs, stating that he would not pay, even if he had the money.

[29] As I have noted previously, the Rules of Civil Procedure exist to ensure a fair process for both sides to a dispute. They apply equally to parties who are represented by a lawyer and parties who are self-represented. Mr. Molinaro has, in many respects, conducted himself as if the Rules do not apply to him. They do. In fairness to his opponent, Mr. Molinaro cannot expect to force Economical into a trial without providing the required disclosure. In fairness to the court and to all other litigants, Mr. Molinaro cannot choose to avoid the pretrial conference process and the trial management exercise that is integral to it. Trial time is scarce and expensive and must be used efficiently.

[30] As well, Mr. Molinaro cannot avoid the court’s orders merely because he chooses to. His suggestion that he would not pay Justice Wilson’s costs order, even if he could afford to, is tantamount to a statement of intended defiance of a court order. Had Mr. Molinaro properly responded by filing a pretrial conference memorandum and by attending before Justice Wilson on the occasion of the second pretrial, no such order would have been made. Mr. Molinaro cannot avoid the consequences of his own behaviour and then expect to seek relief from the court when he is not prepared to abide by the court’s own orders.

[31] Economical has asked me to dismiss Mr. Molinaro's action. That is a very serious remedy, and I am not persuaded that it is warranted in the circumstances. Rather, Mr. Molinaro should be provided with a reasonable opportunity to take appropriate steps to comply with the court’s processes so that his case may proceed to a trial that will be fair to all parties.

[32] For the foregoing reasons, I make the following order:

1. The action is stayed and the trial date of March 27, 2017 is vacated.
2. Mr. Molinaro may, by way of a motion brought before a judge, seek to have the stay removed, the case restored to the trial list and a new pretrial date and trial date fixed, once he has complied with the following terms: a) payment to Economical of the costs awarded by Justice Wilson in the amount of $1,500; b) payment to Economical of the costs of this motion, which I hereby fix at $2,500 (a fraction of the expense actually incurred by Economical in seeking this relief); c) the service by Mr. Molinaro of a written undertaking to Economical in which he will undertake to attend the next pretrial conference scheduled by the Trial Coordinator on a date and time fixed by the court, and in which he will acknowledge that, should he fail to file a pretrial memo and attend as required, the action may be dismissed by the pretrial judge; d) disclosure to Economical by Mr. Molinaro of the address of his current family physician and provision by him of a signed and witnessed authorization permitting his family physician to provide to Economical a copy of his complete medical records; e) provision to Economical by Mr. Molinaro of the list of his anticipated witnesses at trial; f) confirmation to Economical by Mr. Molinaro that he has fulfilled all his outstanding undertakings.
3. In the event Mr. Molinaro has not complied with the foregoing terms and has not successfully moved to have the stay removed by September 30, 2017, Economical may thereafter move without notice to Mr. Molinaro for an order dismissing the action.

Stinson J. Date: March 24, 2017