Court File and Parties

COURT FILE NO.: CV-17-570242 MOTION HEARD: 20180504 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Spence, Plaintiff AND: Chaplick, et al., Defendants

BEFORE: Master Abrams

COUNSEL: D. McGhee, for the plaintiff 416-362-9435, f. D. Hirbod, for defendants Chaplick and Fine & Deo 416-865-6636, f. M. Cremasco, for all other defendants 416-366-1466, f.

HEARD: May 4, 2018

Reasons for Decision

[1] This action is stayed [1] to permit the plaintiff time to satisfy the outstanding costs awards herein or to obtain an Order from a judge varying them. I am not prepared, at this stage of the proceedings and on the evidence before me, to dismiss this action.

[2] That said, if by November 4/18 (six months from the date that this motion was heard and a little more than three months from the date of this decision), the costs ordered paid by the plaintiff are not paid or the necessity to pay them is not extinguished by judge’s Order, the defendants may renew their motions (before me) for a dismissal of the plaintiff’s claims.

[3] The evidence adduced by the plaintiff is sufficient to persuade me that dismissal of the plaintiff’s claims, without more, is not now appropriate. While the lacunae in the financial documentation are large and many, and the evidence adduced by the plaintiff as to her means raises as many questions as it answers, I am prepared to permit the plaintiff one more chance to address her obligation to pay costs—now with a warning as to the potential repercussions of her not doing so.

[4] As to the insufficiency of the evidence adduced by the plaintiff, I note the following. The financial statement filed has no supporting documentation attached to it and is in draft form, only. The tax documents filed for 2015 and 2017 are T1 Generals only, not notices of assessment. The evidence as to the plaintiff’s employment and employability is scant and generalized. And while the plaintiff provides some information as to the mortgages on her property and her alleged indebtedness on her credit cards, she does not provide any back-up for these numbers. Neither does she advise as to the credit limits on her credit cards or as to any efforts made to borrow money to satisfy her costs liability. No banking documents have been proffered.

[5] Then too, the plaintiff says that her liabilities exceed her assets. Perhaps that is so; but she also says that she has been without employment income for some fourteen years and living on less than $5,000.00 in taxable income, each year, for the last three years. That being so, how has she been able to afford her mortgage payments and not-insubstantial monthly condominium fees (as well as support herself and her son)? And why did she not pay costs when she last refinanced her property, i.e. in August of 2017, after her motion for an injunction was heard and dismissed and costs were ordered against her?

[6] Where a party fails to comply with an interlocutory Order, the court may stay the party’s proceeding, dismiss the party’s proceeding or make such other Order as is just (R. 60.12). And where a party fails to pay the costs of a motion, the court may dismiss or stay the party’s proceeding or make such other Order as is just (R. 57.03(2)).

[7] The plaintiff has failed to comply with costs Orders of 1. Monahan, J., and 2. Rady, J., Matheson, J. and Myers, J.--dating back to July 2017 and January 2018, respectively. While the plaintiff would have me consider the merits of her claims, the defendants suggest that I cannot fairly do so, on the record before me. Then too, and in any event, they cite Nordheimer, J. (as he then was), in Bottan v. Vroom, 2001 CarswellOnt 2382, who said (at para. 26): “The rationale for [RR. 60.12 and 57.03(2)] is predicated on the fact that there will be situations where a party’s position ought to be determined for procedural reasons arising from the failure of that party to abide by Orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these rules”. I agree with counsel for the defendants and adopt the comments of His Honour.

[8] While I am not now prepared to simply dismiss the claims of the plaintiff, neither am I prepared to give no heed to the Orders made by judges of this court. To dismiss the defendants’ motions, summarily, would be to ignore the fact that Orders have been made with which there has been no compliance. I do note, parenthetically, that the plaintiff’s ability to pay costs was raised by her counsel in written submissions dated December 21/17, filed in respect of the plaintiff’s motion for leave to appeal; and, that fact notwithstanding, costs were ordered paid by the plaintiff when the leave motion was dismissed by Justices Rady, Matheson and Myers.

[9] The plaintiff is to pay the costs that she owes or obtain an Order from a judge (on a motion on notice) to excuse her from the requirement of paying costs. She has a little more than three months to do so. Know that I make no comment as to whether a judge would be prepared to entertain such a motion, at this stage and on these facts. I do say, however, that any such motion carries the risk of a further costs award being made against the plaintiff.

[10] Failing agreement as to the costs of this motion, brief submissions in writing may be made and costs outlines filed—this by August 31/18.

July 27/18

Footnote: [1] A stay of the plaintiff’s action is the alternative manner of relief sought by the defendants.