Court File and Parties
COURT FILE NO.: CV-15-533145 MOTION HEARD: 2019 03 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sae-Bin Im v. BMO Investorline Inc., CIBC Investor Services Inc., TD Waterhouse Canada Inc., Canadian Securities Administrators, Investment Industry Regulatory Organization of Canada and Joe Oliver, Minister of Finance, Canada
BEFORE: MASTER R. A. MUIR
COUNSEL: Sae-Bin Im in person Robert Trenker for defendant BMO Investorline Inc. Elie Farkas for the defendant TD Waterhouse Canada Inc. Zev Smith for the defendant CIBC Investor Services Inc. Stephen Aylward for the defendants Canadian Securities Administrators and Investment Industry Regulatory Organization of Canada
REASONS FOR DECISION
[1] There are three motions before the court. The defendants BMO Investorline Inc. (“BMO”) and Canadian Securities Administrators and Investment Industry Regulatory Organization of Canada (collectively, “IIROC”) each bring motions seeking an order dismissing this action as a result of the plaintiff’s breach of the peremptory order of Master Pope made September 12, 2017. Alternatively, the moving defendants seek an order dismissing this action for delay pursuant to Rule 24.01(1)(a) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The defendants TD Waterhouse Canada Inc. and CIBC Investor Services Inc. (“CIBC”) support the position taken by the moving parties. It appears that the defendant Minister of Finance takes no position. The plaintiff is opposed.
[2] The plaintiff initially brought a motion before Justice Nakatsuru on January 14, 2019. The plaintiff’s motion sought, among other things, an order varying Master Pope’s order of September 12, 2017 and extending the time for the plaintiff to file his statement of claim. Justice Nakatsuru adjourned the plaintiff’s motion without a date pending the hearing of this motion. As Justice Nakatsuru correctly noted, the issues before me on the moving defendants’ motions are essentially the same as the issues raised by the plaintiff’s motion. It makes sense therefore, from a practical point of view, for me to deal with the moving defendants’ motions and the plaintiff’s motion at the same time, to the extent that the relief requested is within my jurisdiction.
NATURE OF THE ACTION
[3] The plaintiff’s claim appears to relate to various attempts by the plaintiff to dispose of certain call options through BMO and CIBC in 2013. The plaintiff alleges, among other things, breach of contract and negligence against the several entities involved in the buying and selling of the options. The plaintiff alleges that IIROC was negligent in respect of its alleged regulatory role with respect to the operation of Canadian securities markets.
APPLICABLE LAW
[4] The legal principles applicable to the various relief sought on these motions vary slightly but are united by the overriding principle that the court must exercise its discretion in order to make the order that is just in the circumstances of this action.
[5] A peremptory order is usually the last chance for a party to put his case in order and remedy his default. Because it is a last chance order, a failure to comply will ordinarily result in the ultimate sanction being imposed. Nevertheless, the court must exercise its discretion based on the particular facts of the matter before it and make the order that is in the interest of justice. See Jourdain v. Ontario, 2008 ONSC 22130, [2008] OJ No. 1868 (SCJ) at paragraph 12.
[6] The test on a motion to dismiss an action for delay is twofold. The moving party must either show that the delay was intentional and contumelious or that the plaintiff is responsible for delay that gives rise to a substantial risk that a fair trial may not be possible. See New Solutions Financial Corporation v. Zilkey, 2011 ONSC 448 (Master) at paragraph 12; affirmed 2011 ONSC 4250 (Div Ct). The court should consider the length of the delay, any explanation for the delay and any prejudice to a defendant in defending itself at trial. See Monaghan v. Kent, 2018 ONSC 4975 at paragraph 20.
[7] The factors to be applied on a motion to extend time to file a statement of claim are more or less the same. They focus on the explanation for the delay and prejudice to a defendant. See Diemer (c.o.b. Cornacre Cattle Co.) v. London Dairy Farms Ltd., 2016 ONCA 946 at paragraph 3.
[8] These are the factors and principles I have considered in determining the issues on these motions. In my view, it is in the interest of justice that the plaintiff be granted an extension of time to file his statement of claim.
ANALYSIS
[9] The plaintiff issued his notice of action on July 24, 2015. On Monday August 24, 2015 he attempted to file his statement of claim by email. He was advised by court staff that he could not do so. The statement of claim had to be filed in person or by mail. There was also apparently an issue with the form of the plaintiff’s statement of claim. The plaintiff then attempted to file the statement of claim in person a few days later, as instructed. However, the court would not accept the statement of claim as the 30 day deadline under the Rules for filing the statement of claim had passed.
[10] The plaintiff then spent some period of time attempting to obtain the consent of the defendants to the late filing of the statement of claim. The plaintiff first wrote to the defendants in early September 2015, advising them of this proceeding and seeking their consent. Some of the defendants appear to have provided their consent but at least one of the defendants declined to consent to an extension of time. As a result, it was necessary for the plaintiff to bring a motion to obtain an order from the court to extend time.
[11] What followed were various missteps by the plaintiff. He brought several motions between December 2016 and August 2017. These motions were rejected by the court because they were brought in writing without the necessary consent, or due to issues with respect to service or because of the nature of the relief requested. What is clear, however, is that during the two years following the issuance of the notice of action, the plaintiff was attempting to regularize this proceeding either by seeking consent or bringing motions for an extension of time. The defendants were generally aware of the plaintiff’s efforts in this respect. This was not a plaintiff who was ignoring this action and doing nothing. In my view, the plaintiff’s lack of success in obtaining the necessary relief during this time period was largely a result of the fact that he was self-represented and experienced difficulty in navigating a complex court system.
[12] Eventually, the plaintiff obtained an order from Master Pope on September 12, 2017 granting him an extension of time to file his statement of claim to November 13, 2017. The order was made peremptory to the plaintiff.
[13] There is no doubt that the plaintiff was aware of this new deadline and the peremptory nature of Master Pope’s order. He clearly acknowledged this in a letter dated September 22, 2017 seeking legal representation. Despite this knowledge, the plaintiff missed the extended deadline as well.
[14] Nevertheless, I am satisfied with the plaintiff’s explanation for his failure to comply with Master Pope’s order. I do not view his failure to comply as intentional. It is clear from the evidence that between September 2017 and the summer of 2018, the plaintiff was involved in various other litigation arising from a motor vehicle accident and estate litigation involving family members. This other litigation appears to have been a significant burden to the plaintiff. Various events were ongoing in connection with those claims and the plaintiff was representing himself.
[15] I am also satisfied that the plaintiff’s medical issues have affected his ability to pursue this action. The plaintiff has been under the care of a psychiatrist and on long term disability since 1999. He suffers from various psychiatric disorders including depression and anxiety. He requires daily medication and regular therapy. BMO took issue with the medical evidence filed by the plaintiff because it was in the form of a letter from his psychiatrist and not an affidavit. In my view, evidence by way of a doctor’s letter is sufficient on a procedural motion of this nature in the circumstances of this action. In any event, the defendants had the option of examining the plaintiff’s doctor as a witness on a pending motion but did not do so.
[16] I agree with the defendants that a peremptory order is usually the last chance to cure a default. However, the authorities make it clear that the court always retains a discretion to relieve against a peremptory order in the interest of justice. In my view, the plaintiff’s personal and medical circumstances are an adequate explanation for his non-compliance with Master Pope’s peremptory order.
[17] With respect to delay, I note that the plaintiff’s statement of claim is now in final form and ready to be filed. The plaintiff’s estate litigation has been concluded and he can now focus on this action. There has been a significant delay by the plaintiff in advancing this claim to date but as stated above, I do not view that delay as intentional and I am satisfied with the plaintiff’s explanation for the delay. In my view, it will still be possible for this action to be set down for trial within the five year limit set out in Rule 48.14. The plaintiff has been trying to get this action on track and appears to be making some progress. He deserves a further opportunity to have his claim determined on its merits.
[18] I am also satisfied in the circumstances of this action that the plaintiff has rebutted any presumption of prejudice to the defendants. The defendants have been aware of this proceeding since September 2015. The trading of securities is generally a thoroughly documented and recorded process. The defendants are all sophisticated parties who were represented by counsel from an early date. They were in a position to conduct an early investigation and evaluation of the matter and preserve all relevant documents and other evidence. There is no suggestion of any actual prejudice to the defendants in the form of missing documents or unavailable witnesses. I am satisfied that the defendants will suffer no significant prejudice in defending themselves at trial as a result of any delay to date.
[19] The defendants also argued that the plaintiff’s claim is frivolous and vexatious and an abuse of the process of this court. They suggested that leave to file the statement of claim should be denied on this basis. The plaintiff’s claim is certainly lengthy and detailed. However, at its core are the plaintiff’s allegations of negligence and breach of contract with respect to his attempts to exercise the options in issue. These are not unusual or uncommon causes of action. Some latitude must be afforded to a self-represented plaintiff in Mr. Im’s circumstances when it comes to drafting a pleading. I am not prepared to summarily reject the plaintiff’s claim at this stage of this proceeding.
[20] For these reasons, I have concluded that it is in the interest of justice that the plaintiff be given an extension of time to file his statement of claim.
[21] One final observation is necessary. The plaintiff’s written and oral submissions included numerous allegations of deliberate and improper conduct by judicial officers, court staff, the defendants and their lawyers. There is absolutely no evidence whatsoever to support any of these very serious allegations. There is no evidence of improper conduct by any of these individuals. What the evidence does show is judges, masters, court staff and lawyers simply doing their job in accordance with their professional obligations. These kind of suggestions only serve to draw attention away from the plaintiff’s core complaint. It is in no one’s interest, including the plaintiff, to have the record clouded by these kind of unfounded allegations.
[22] The areas of relief on the plaintiff’s motion with respect to case management, trial together with an allegedly related action and a speedy trial were not addressed in argument and I make no finding with respect to those forms of relief. The request for case management by a judge is not within my jurisdiction in any event.
ORDER
[23] I therefore order as follows:
(a) the order of Master Pope of September 12, 2017 is hereby varied and the time for the plaintiff to file his statement of claim is hereby extended to April 15, 2019;
(b) no formal order from this motion shall be required in order for the plaintiff to file his statement of claim in accordance with these reasons for decision;
(c) the plaintiff shall serve his notice of action and statement of claim on the defendants or the lawyers for the defendants by May 15, 2019;
(d) the balance of the relief on the plaintiff’s motion is adjourned without a date;
(e) the BMO and IIROC motions are dismissed; and,
(f) if the parties are unable to agree on the issue of the costs of these motions, they shall provide the court with brief submissions in writing by May 15, 2019, such submissions to be filed directly with masters’ administration, 393 University Avenue, 6th floor, Toronto.
Master R. A. Muir