Court File and Parties

COURT FILE NO.: 26437/14 DATE: 20181101 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Patti A. McIntomney, Plaintiff

– and –

Joseph M. Corbiere and Algoma Community Legal Clinic Inc., Defendants

Counsel: The Plaintiff is self-represented. Stuart Woody, counsel for the Defendants.

HEARD: October 17, 2018

R. D. Gordon, R.S.J.

Overview

[1] The Plaintiff alleges a litany of procedural contraventions by the Defendants. She says that as a result of these contraventions their Statement of Defence should be struck and she should be given judgment against them.

[2] The Defendants allege that the Plaintiff has delayed these proceedings unduly by refusing to attend examination for discovery and failing to restore the matter to the trial list in a timely fashion. They ask that her action be dismissed as a result. They also say that she is in default of a costs order made in March of 2017 and should be required to post security for costs if she is allowed to proceed further.

Background

[3] The Plaintiff sought the assistance of the Defendants relating to an appeal of a decision of the Criminal Injuries Compensation Board. She had been denied compensation because the Tribunal was not satisfied that the criminal acts complained of had actually occurred.

[4] The Plaintiff says the Defendants were retained to perfect her appeal and failed to do so with the result that the appeal was dismissed for delay.

[5] The Defendants say they were retained to provide the Plaintiff with advice on the merits of the appeal, that they advised her the appeal was without merit, and that they had no obligation to perfect the appeal on her behalf. Even had the appeal been perfected, they are of the view there was little, if any, likelihood of success and therefore the Plaintiff has no damages.

[6] At this stage of the litigation, neither party seems particularly concerned about the merits of the action. They are more concerned with pointing out the procedural shortcomings of the other.

[7] In early 2016 the Plaintiff and counsel for the Defendants agreed that affidavits of documents would be exchanged by the end of April and Examinations for Discovery would be held in June. The examination of the Plaintiff was scheduled for June 1.

[8] The Plaintiff subsequently served her affidavit of documents as had been agreed. The Defendants served an unsworn affidavit of documents shortly thereafter and indicated that the sworn copy would be provided at the examination for discovery. I accept that this is a common practice among civil litigation lawyers. I also accept that this practice would not likely be known to a self-represented litigant such as the Plaintiff.

[9] In early May of 2016 counsel for the Defendants determined that their office would face a scheduling difficulty should the discovery of the Plaintiff take place on June 1 as scheduled. They contacted her on several occasions to advise that the discovery could not take place as scheduled and offered several alternative dates in the very near future. They contacted the reporting service and cancelled the examination on May 3, 2016. Although they did not specifically advise the Plaintiff that it had been cancelled, this was the plain import of their correspondence with her. Indeed, she called the reporting service on May 27 and was advised by it that the appointment had been cancelled. She refused to accept the cancellation. She attended in any event. She has refused to attend since, notwithstanding several reasonable invitations to do so. I accept that for a time she was not capable of attending due to medical issues but her position is that she is not required to attend again because she has already attended on June 1.

[10] While refusing to attend for a subsequent discovery, she filed a trial record and continued to complain that the Defendants had not filed a properly sworn affidavit of documents, had not included (and allegedly purposely excluded) certain documents from their affidavit of documents, and failed to properly respond to a request to admit.

[11] The Defendants continued in their efforts to schedule the discovery of the Plaintiff. They proposed a discovery plan which she did not accept. They served her with a sworn affidavit of documents which she does not accept as complete. They responded to her request to admit (albeit it may have been a few days late) and she will not accept its completeness or validity.

[12] The matter was scheduled for judicial pre-trial in March of 2017. In advance of the pre-trial counsel for the Defendants reiterated to the Plaintiff that the matter was not ready for pre-trial because she had not been subject to examination for discovery. They advised her that if she did not agree to attend for discovery and reschedule the pre-trial they would seek to have her action struck from the trial list. She was steadfast in her refusal. The Pre-trial judge agreed with the Defendants and struck the matter from the trial list. He ordered the Plaintiff to pay costs of $4,783.10.

[13] The Defendants did not proceed diligently to have the order of the pre-trial judge issued and entered. More recently they sought approval of a draft order from the Plaintiff. She has refused to approve it. I reviewed the draft order in court and signed it, as it reflected exactly the terms of the order made by the pre-trial judge. I did so in an exercise of my discretion under Rule 2.03 of the Rules of Civil Procedure, dispensing with the approval of the Plaintiff and the process for settling orders set out in Rule 59 of the Rules of Civil Procedure. To require further compliance with that rule would do nothing but increase the costs of this litigation unnecessarily. Notwithstanding the Plaintiff’s submission that issuance of the order runs afoul of the Limitations Act, in my view there is no good reason to refuse the issuance of the order.

[14] The Plaintiff filed a motion for leave to appeal the decision of the pre-trial judge shortly after it was made. No one seems to know what has become of it. She tells the court it has always been her intention to proceed with the motion and the appeal if granted. Notwithstanding these submissions, there is no evidence before the court of any efforts made by her to determine what has become of the motion for leave or to try and arrange the filing of all materials required to have it heard.

[15] The parties are now before me pointing out the procedural shortcomings of the other. Both essentially ask that the litigation be ended in their favour. Neither will receive that relief today.

Analysis

The Plaintiff’s Motion

[16] The Plaintiff’s motion seeks: (1) To compel production of transcripts from the Pre-trial conducted on March 10, 2017; (2) To Strike the Defence of the Defendants; (3) Judgment or Summary Judgment; (4) As an alternative to Judgment, that the matter be restored to the trial list.

[17] Although the materials of the Plaintiff are somewhat disjointed and difficult to understand, she points to several failures by the Defendants in support of her motion.

Late Delivery of a Sworn Affidavit of Documents

[18] The Defendants provided an unsworn affidavit of documents almost 30 months ago in accordance with a practice common to litigation lawyers. A sworn affidavit of documents was provided about two years ago. Although there was not perfect compliance with the rules neither was there any blatant contravention in this regard. The Defendants’ late service of the affidavit of documents does not warrant the striking of their defence.

Incomplete Affidavit of Documents

[19] The Plaintiff alleges that the affidavit of documents is incomplete. She points to letters addressed to the Defendants from counsel for the Criminal Injuries Compensation Board that are clearly relevant to these proceedings and rightly wonders why they are not contained in the affidavit of documents. The Defendants reply that their file review did not indicate that those letters were received by them and accordingly they cannot say with certainty whether they were ever received or under their control.

[20] The Plaintiff may not like that explanation but that is the position of the Defendants. Given counsel’s representation to the court that a thorough search has been made and the documents not discovered, I am content that no further affidavit of documents need be provided. To be clear, this is not a finding that the Defendants did not receive the correspondence from the CICB. Indeed it seems likely they did. In any event, the Plaintiff has the documents in her possession. They will be available to assist the court in its ultimate determination of the matter.

Timely Disclosure of the Insurance Policy Responding to Her Claim

[21] The Plaintiff complains of the failure to make timely disclosure of the insurance policy and the failure of the Defendants to list that policy as a document in their affidavit of documents.

[22] I am satisfied that the policy has been disclosed. That disclosure may not have been made in as timely a fashion as might be anticipated by the rules but that is not sufficient grounds to strike the defence.

[23] The insurance policy is not relevant to matters in issue between the Plaintiff and the Defendants. It need not appear in the Defendants’ affidavit of documents.

Invasions of the Plaintiff’s Privacy

[24] The Plaintiff makes several allegations that the Defendants have breached her rights to privacy by disclosing personal information and arranging surveillance of her.

[25] The Plaintiff has no real evidence that surveillance has taken place and the Defendants deny that any surveillance has been conducted. On the evidence before me I find that no surveillance has been commissioned or undertaken by the Defendants or anyone on their behalf.

[26] The Plaintiff’s allegations of breach of privacy are unfounded and in any event would not be sufficient to warrant striking the defence.

The Request to Admit

[27] The Plaintiff served a request to admit. The Defendants served a response. It may have been served one day late. The Plaintiff does not accept the genuineness or accuracy of the response. That is her right. However, it does not entitle her to strike the defence.

The Absence of a Discovery Plan and the Defendants’ Unreasonable Disclosure Requests

[28] No discovery plan has been agreed upon by the parties. It is clear that the Plaintiff disagrees with the scope of discovery requested by the Defendants. In particular, it is her view that discovery of the circumstances of the alleged crimes and her medical records is unnecessary as the Superior Court of Justice has already determined that the crimes in question were committed and that she suffered injury as a result of them. She says those issues are res judicata.

[29] She is correct that Justice Kurke of this court held in her favour in a proceeding brought by her against the person alleged to have harmed her. However, it is to be noted that the action was ultimately not defended and proceeded as though uncontested. It is also to be noted that the Defendants herein were not a party to that action.

[30] It follows that the doctrine of res judicata cannot apply. The Defendants herein should not be bound by a decision in a trial in which they had no opportunity to participate, particularly when no one participated in the trial process to challenge the evidence of the Plaintiff.

[31] However, I agree that the scope of discovery suggested in the discovery plan of the Defendants is overly broad. That issue is dealt with in greater detail below.

Failure to Attend for Examination for Discovery

[32] The Plaintiff’s view is that she attended for discovery as scheduled, that the failure of the Defendants to attend is their own, and the delay since is of their own making.

[33] The court system cannot survive without a reasonable amount of cooperation between litigants. Although at times inconvenient, scheduling difficulties can and do arise from time to time. In such circumstances, parties are expected to act reasonably with a view to minimizing the delay resulting from a cancellation.

[34] The Defendants were entitled to expect some level of cooperation from the Plaintiff. Her position that they were not entitled to cancel the discovery and cannot now compel her to attend is unreasonable and unjustifiable.

Conclusion (Plaintiff's Motion)

[35] The various complaints by the Plaintiff, whether considered individually or as a whole, are not sufficient to strike the defence of the Defendants.

[36] The Plaintiff’s claim for summary judgment is also dismissed. By unreasonably refusing to attend for discovery she has prevented the Defendants from making full answer to her claim. They should not be expected to answer her motion for summary judgment without the benefit of discovery. In any event, the evidence before me is not sufficient to fairly adjudicate the facts of this case which will depend in large measure on findings of credibility relative to the Plaintiff and Mr. Corbiere.

[37] The Plaintiff seeks a transcript from the pre-trial held in March of 2017. The only reasonable basis for the request is that it is needed for the purposes of an appeal of the order made at the pre-trial. Although it appears that a motion for leave to appeal was prepared and perhaps even served, there is little evidence of what has transpired since. There is no evidence of what efforts the Plaintiff has made to follow up on that appeal. There is no evidence that a motion record has been prepared or filed, no evidence that a factum has been prepared or filed, and no motion in sight to extend the time for properly bringing the motion. There is no evidence to explain the delay in proceeding and, frankly, little hope for the success of the motion should it be brought.

[38] The Plaintiff alleges that the pre-trial judge did not allow her into the pre-trial room until after he had heard the submissions of the Defendants and did not allow her the opportunity to make any meaningful submissions. Even if I were to accept the Plaintiff’s view of the facts as true and correct, the fact remains that he came to the correct conclusion. The matter was not ready for pre-trial or trial because she had refused to reschedule the examination for discovery. She had done so unreasonably. The Defendants had warned her they would ask to have the matter struck from the trial list and would seek costs. This is precisely what they did. The matter was properly struck from the list and costs were properly assessed against her. I accept that the Plaintiff does not like the decision. That is her right.

[39] As the motion for leave to appeal has not proceeded in almost 18 months, there is no explanation for the delay, and no real prospect of its success, I decline to order that transcripts of the pre-trial be prepared.

The Defendants’ Motion

[40] The Defendants ask that the Plaintiff’s action be dismissed for two reasons: Firstly, that she has refused to attend for Examination for Discovery; and Secondly, due to delay. If those motions fail there is a request for security for costs.

The Discovery Issue

[41] The Defendants argue that the Plaintiff’s unreasonable refusal to participate in an examination for discovery should result in the dismissal of her action.

[42] Although I agree that her refusal to attend has been unreasonable, it has arisen not from any intention on her part to disrespect the court process or any deliberate attempt to prejudice the rights of the Defendants. Rather, it arises from an honestly held but unreasonable belief that her attendance at the cancelled examination on June 1, 2016 fulfilled her discovery obligation. Hopefully she now realizes the folly of that position. In my view it would be unfair to dismiss her claim absent her refusal to comply with a court order that she attend for discovery. That order will be made below.

The Delay Issue

[43] Rule 24.01(1)(b) of the Rules of Civil Procedure provides that a defendant may move to have an action dismissed for delay where the Plaintiff has failed to move for leave to restore to a trial list an action that has been struck off the trial list within thirty days after the action was struck off.

[44] An action will be dismissed for delay under this Rule if: (a) The delay is intentional and contumelious; or (b) the delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation would not be possible because of the delay.

[45] Delay is intentional and contumelious if it is caused by the intentional conduct of the plaintiff and demonstrates a disdain or disrespect for the court’s process. It involves the court effectively declaring that a continuation of the action in the face of the Plaintiff’s conduct would constitute an abuse of the court’s process. Such cases are rare and typically feature at least one and usually several violations of court orders. See Langenecker et al v. Sauve et al, 2011 ONCA 803 at para. 6.

[46] In my view, as mentioned above, the Plaintiff is not acting with disdain or disrespect for the court’s process, but rather from a heretofore unreasonable and misguided view of the requirement that she attend for discovery. I note that although Justice Cornell struck the matter from the trial list because she had not attended for discovery, he made no order that she do so. Indeed, save and except the order for costs made at the pre-trial before Cornell J. she is not in breach of any orders of the court.

[47] I am unable to find that the delay is intentional and contumelious.

[48] I am also not able to find that the delay is inordinate. This action was started on March 31, 2014. That it pertains to some facts arising some years earlier is neither here nor there for the purposes of assessing delay in these proceedings.

[49] The length of the delay is to be measured from the time the proceeding was commenced to the date the motion to dismiss is considered. In this case that is roughly four and a half years. In my view that is not an inordinate delay. This is not an uncomplicated matter requiring, as it does, not just an assessment of the actions of the defendants but the chance of success of the underlying CICB appeal. It is made no easier by the involvement of a self-represented litigant who, although clearly intelligent, lacks the skills and knowledge of a trained litigator.

Security for Costs

[50] The Defendants rely on Rule 56.01(d) of the Rules of Civil Procedure in support of their request for security for costs. In particular, they point out that the cost order of Cornell J. made in March of 2017 remains outstanding.

[51] I note that the Order arising from Justice Cornell’s endorsement was signed by me at the hearing of these motions and that relatively little effort was made to have the order signed prior to that. The order is reasonably modest and the Plaintiff has significant health issues that have prevented her from working full time in the past few years. An order for security for costs of the magnitude requested would likely have the effect of eventually ending this litigation which cannot be said to be devoid of merit. I also note that the Defendants are represented by an insurer with considerable resources.

[52] In all of the circumstances an order for security of costs is not in the interests of justice.

Conclusion (Overall)

[53] I decline to order the relief requested by either the Plaintiff or the Defendants. However, it is abundantly clear that a specific order is required to have this matter proceed in a timely manner. Contrary to the view held by the Plaintiff, this is not a simple action. There is the reasonably straight forward issue of whether the Defendants were negligent in their representation of the Plaintiff, but that is not the only issue. If it comes to be determined that the Defendants were negligent in their representation of the Plaintiff, the court must then assess what damages were sustained by the Plaintiff as a result. Clearly, if the Defendants had done what the Plaintiff alleges they were required to do, her appeal of the CICB decision would have been perfected and the matter would have proceeded to the appeal hearing. But what would have happened at the appeal hearing? What is the chance that the appeal would have been successful? If successful what would have been the appeal court’s order? If the appeal would have been allowed and the matter returned to the CICB for a re-hearing, what evidence would the CICB have considered? What decision might it have made? What is the value of the lost opportunity to have gone through this process?

[54] These are the basic issues within this proceeding, and it is these issues that should guide and inform the discovery process.

[55] I have considered the discovery plan proposed by the Defendants. In my view it is far too broad. It assumes they have an entitlement to challenge the Plaintiff’s contention that she was sexually assaulted. I disagree. If negligence is found and a determination is made that there is a chance the appeal would have been successful, the court’s task will be to determine what the court of appeal would have done on the record before it, or what the CICB would have done if the matter were remitted to it. The defendants would not have been a party to those proceedings. In either case the matter would have proceeded as it did in the first instance, namely, without a party adverse in interest to the Plaintiff. It can fairly be assumed that the Plaintiff made her best case when she was before the CICB the first time. If the CICB made an error in its determination of her case, the best this court will be able to do is attempt to figure out what the court of appeal or the CICB would have done on that same record, but without legal error.

[56] On this analysis, the extent of the oral discovery and documentary disclosure required of the Plaintiff is much narrower than that contained in the discovery plan proposed by the Defendants.

[57] It is ordered that the parties abide by the following discovery plan and timetable:

The Plaintiff shall be obliged to produce only the following documents: i. All records in her possession or control and pertaining to her application to the Criminal Injuries Compensation Board for compensation as a victim of crime. ii. All records in her possession or control pertaining to her appeal of the decision of the Criminal Injuries Compensation Board decision which denied her claim for compensation. iii. All records in her possession or control pertaining to her retainer of the Defendants. iv. All records in her possession or control pertaining to actions taken or not taken by the Defendants on her behalf. v. Any witness information and particulars not subject to a claim for privilege.
The Defendants shall be obliged to produce the following documents: i. All records in their possession or control pertaining to the Plaintiff’s retainer of the Defendants. ii. All records in their possession or control pertaining to actions taken or not taken by the Defendants on behalf of the Plaintiff. iii. Any witness information and particulars not subject to a claim for privilege.
The Plaintiff and the Defendants shall each serve an updated sworn affidavit of documents identifying all of the documents they are obliged to produce as noted above, by December 31, 2018.
Copies of documents listed in the updated affidavit of documents of the Plaintiff and not previously produced by her shall be produced to the Defendants by December 31, 2018. The Defendants will reimburse the Plaintiff for reasonable costs associated with production of these documents with photocopying charges not to exceed 25 cents per page.
Copies of the documents listed in the updated affidavit of documents of the Defendants and not previously produced by them shall be produced to the Plaintiff by December 31, 2018. The Plaintiff will reimburse the Defendants for reasonable costs associated with production of these documents with photocopying charges not to exceed 25 cents per page.
The Plaintiff shall attend for examination for discovery on a date to be arranged by the Defendants in consultation with her. Such examination for discovery will be restricted to 5 hours in length and shall take place between January 1, 2019 and April 30, 2019. If the Plaintiff is of the view that her medical condition prevents her from attending an examination for discovery during this period of time, she may make a motion to the court to postpone her attendance.
Undertakings arising from the examination for discovery shall be complied with within 30 days following completion of the examination. Any motion pertaining to undertakings or refusal to answer questions shall be delivered within 60 days following completion of the examination.
The matter shall be returned to the trial list on June 30, 2019 and shall be placed on the first assignment court thereafter to arrange a date for a pre-trial conference.

Costs

[58] The Plaintiffs motion is dismissed. The Defendants’ motion is dismissed. At least on its face, it appears that the parties met with equal success or lack thereof. It is difficult to envision how either would be entitled to costs but if they wish me to determine the matter they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.

R. D. Gordon, R.S.J. Released: November 1, 2018