NEWMARKET COURT FILE NO.: CV-11-105000-00

DATE: 20180622

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lorella Papa, Plaintiff

AND:

Vasco Calhau, Defendant/Moving Party

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: A. Gerstl, Counsel for the Plaintiff

S. Siddiqui, Counsel for the Defendant/Moving Party

HEARD: June 21, 2018

ENDORSEMENT

[1] The defendant, Vasco Calhau, brings a motion to dismiss the plaintiff’s claim for delay. For reasons that follow, the defendant’s motion is dismissed.

Background

[2] A brief description about the background of this matter will provide context for the discussion that follows. The Statement of Claim was issued in 2011. The defendant filed a Defence in 2012. Examinations for Discovery have been conducted. However, answers to undertakings became problematic. The defendant was forced to bring four motions to obtain all answers.

(a) The First Motion

[3] On January 12, 2016, Justice Sutherland ordered the plaintiff to answer undertakings and reserved the issue of costs.

(b) The Second Motion

[4] The defendant brought a second motion to compel answers to undertakings. On September 29, 2016, Douglas J. made certain orders against the plaintiff and fixed costs against the plaintiff for $4,000.

(c) The Third Motion

[5] A third motion was heard on March 30, 2017. Justice Lavine ordered, on consent, that undertakings be dealt with and fixed costs at $1,000.

(d) The Fourth Motion

[6] A fourth motion was heard June 15, 2017. Justice McKelvey made a consent order re undertakings and assessed costs against the plaintiff of $1,750.

[7] The parties submit that all answers to undertakings have now been received.

[8] Although the length of time since proceedings were commenced exceeds the five-year period after which the Registrar could strike the claim, no Registrar’s order has been made. Very recently, the plaintiff filed a Trial Record, which would serve to prevent the Registrar so acting. The subject matter of the dispute is a condominium owned by the parties together, acquired when they were still a matrimonial couple. This was a rental property and not dealt with in their Family Law proceedings. After this claim was issued, the plaintiff ceased renting the property and moved in as her principal residence. She maintains payments on the first mortgage. The defendant maintains payments with respect to certain lines of credit security against the property.

[9] The defendant submits that he is prejudiced by this inordinate delay.

[10] The plaintiff submits that although there has been delay, it should not affect her right to have a fair trial on the merits. She submits that this is a trial that would be based on the evidence of the parties and the paper record now exchanged between them. Prejudice, if any, can be compensated by costs.

Analysis

[11] Both parties made reference to the Ontario Court of Appeal decision Langenecker v. Sauvé, 2011 ONCA 803. In reviewing the grounds for dismissal of a case under Rule 24.01, the Court noted at para. 3:

An order dismissing an action for delay is obviously a severe remedy. The plaintiff is denied an adjudication on the merits of his or her claim. Equally obvious, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to the defendant.

[12] The Court made reference to certain principles, including the intentional conduct of the plaintiff, whether or not there was inordinate or inexcusable delay risking fair trial rights, and the time that has elapsed from the commencement of the proceedings until the motion.

[13] There is no doubt that the plaintiff forced the defendant to bring four motions to compel answers to undertakings given after discovery. The defendant was successful on those motions and was awarded costs. The plaintiff has paid those costs orders, although not always on a timely basis.

Conclusion

[14] I am not satisfied that this is one of those rare cases where the draconian remedy of a dismissal of a plaintiff’s claim is warranted. The plaintiff did not comply with court orders initially but has paid a price. Costs were awarded against her with respect to both of those motions.

[15] The plaintiff has now answered all undertakings and passed the Trial Record.

[16] The defendant’s motion to strike the Statement of Claim is dismissed.

Costs

[17] The plaintiff was successful with respect to this motion, but given the indulgence given to the plaintiff, no costs were sought by her, if successful. The defendant seeks costs of $2,642. Under the Rules of Civil Procedure, the court has considerable discretion with respect to awarding costs. In this case, the defendant has had to bring a number of motions to move the plaintiff along and was successful with respect to each prior motion. It was only after this motion was brought that the plaintiff passed the Trial Record. I am satisfied that it was necessary to bring this motion in order to force the plaintiff to advance this matter. I therefore award costs to the defendant in the amount of $2,000, all in.

MULLIGAN J.

Date: June 22, 2018