RULING ON MOTION

COURT FILE NO.: 15-66598 DATE: 2019/04/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GLORIA ASSALY and ROBERT ASSALY in his capacity as Estate Trustee of the Estate of Thomas C. Assaly without a Will Plaintiffs – and – THOMAS GREGORY ASSALY Defendant

COUNSEL: Rodrigue Escayola, for the Plaintiffs Self-represented

HEARD: October 3, 2018

BEFORE: Corthorn J.

Introduction

[1] In this action, the plaintiffs claim entitlement to damages because of what the plaintiffs allege is a pattern by the defendant of champertous and vexatious litigation. They also seek a declaration that the defendant is a vexatious litigant.

[2] As a result of steps taken by the defendant in bankruptcy, this action was stayed. The plaintiffs were successful on a motion in the bankruptcy file, heard in July 2018; the stay of this action was lifted. At para. 90 of his August 2018 decision, Kershman J. ordered that “[the] Second Stay of Proceedings is lifted in relation to the claims provable in bankruptcy to allow the Civil Motion to proceed for the purpose only of quantifying the Plaintiffs’ Claim and for no other purpose” (Re Assaly, 2018 ONSC 4882).

[3] On the motion now before the court, the plaintiffs request an order striking the defendant’s pleading and that the defendant be noted in default. If that relief is granted, the plaintiffs intend to proceed to an uncontested trial for a determination of their claim for damages. They will not, at trial, be seeking the declarative relief claimed.

Background

[4] The notice of motion and supporting affidavit are dated November 2017. The motion record was served in late 2017 and identified a return date in April 2018. The motion did not proceed on the original return date because of steps in bankruptcy taken by the defendant. Those steps are carefully reviewed by Kershman J. at paras. 9-13 of his 2018 decision in Re Assaly; they need not be repeated for the purpose of this ruling.

[5] The plaintiffs’ motion in this action was heard in October 2018.

[6] In support of the relief requested, the plaintiffs rely on the defendant’s conduct in this action, specifically his:

• Failure to attend mediation on November 15, 2017 as ordered by Master Champagne (as she then was) in June 2017;
• Failure to pay $500 in costs awarded by Master Champagne to the plaintiffs in June 2017 because of the defendant’s refusal to attend mediation; and
• Attempt to proceed with a motion requiring a passing of accounts for the Estate of Thomas C. Assaly (the “Estate”) in contravention of the terms of a number of orders previously made prohibiting the defendant from bringing such a motion.

[7] The plaintiffs submit that the defendant’s failure to pay the $500 in costs in this action entitles them to relief pursuant to r. 57.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). Subrule 57.03(2) deals with costs of a motion. The rule provides that where costs are ordered following the hearing of a contested motion and the party against whom costs are awarded fails to pay them, “the court may dismiss or stay the party’s proceeding, strike out the party’s defence, or make such other order as is just.”

[8] The plaintiffs submit that they are otherwise or also entitled to relief because of the defendant’s breaches of interlocutory orders made in this action by Master Champagne. In that regard the plaintiffs rely on r. 60.12, which provides that “[w]here a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules … strike out the party’s defence”.

[9] The plaintiffs recognize the seriousness of the consequences to the defendant if the relief requested is granted. The plaintiffs submit that in considering the seriousness of the consequences to the defendant, the court is permitted to look not only at the defendant’s conduct (or, as described by the plaintiffs, “infractions”) in this action; the court is also permitted to look at the defendant’s conduct in other proceedings.

[10] The plaintiffs also rely on the defendant’s conduct with respect to this motion. In her November 2017 case conference endorsement, Master Champagne set a timetable for the parties to deliver their respective materials on this motion. The defendant was required to (a) serve his responding materials no later than January 31, 2018, and (b) deliver his factum by April 13, 2018. Two orders with respect to materials on this motion were subsequently made:

• On April 18, 2018, McLean J. adjourned the motion and ordered “no further materials to be filed save in the insolvency matter”; and
• On June 21, 2018, Laliberté J. adjourned the motion and ordered that, “[the] order of [Justice] MacLean [sic] of April 18, 2018 stands and [the defendant] cannot file materials in this motion—matter is peremptory”.

[11] The defendant chose not to serve any responding materials. As a result, the evidence before the court on the motion consists of the affidavits of Robert Assaly (motion record) and Jocelyn Duquette (supplementary motion record). Ms. Duquette is an associate with Gowling WLG (Canada) LLP, lawyers for the plaintiff.

[12] Despite the timetable set by Master Champagne and the subsequent orders of McLean and Laliberté JJ., on the return of the motion the defendant sought to rely on a factum dated September 28, 2018. The defendant required the consent of the plaintiffs not only to the late service, but to filing the factum over the bench. The defendant was unable to file the factum at the civil counter because he had missed the filing deadline for a responding factum on a motion.

[13] The explanation offered by the defendant for the timing of service and filing of his factum is that, as a self-represented litigant, he tries his best but he is sometimes late with materials. Counsel for the plaintiffs did not take significant issue with the late delivery of the factum. He accepted that it would, in the circumstances, be fair to the defendant to permit the late filing of the factum.

[14] The plaintiffs submit that the manner in which the defendant handled delivery of his factum for this motion gives rise to an additional breach of an interlocutory order in this action. In pursuing relief under r. 60.12, the plaintiffs rely upon this additional breach by the defendant.

[15] I turn to the defendant’s response to the motion. The response includes the following:

• The plaintiffs’ claims are advanced in a complex action and, as a result, the action cannot be disposed of in a summary fashion;
• To ascertain the manner in which the defendant’s children’s action against their grandmother (Gloria Assaly) was pursued, it is necessary to examine, as a non-party, the children’s litigation guardian (their mother—the defendant’s former wife); and
• Despite the settlement reached in 2008 of the action commenced by the defendant’s children, and despite the previous orders of Master Champagne (in this action) and Patillo J., the defendant remains entitled to a passing of accounts with respect to his late father’s estate. The order of Patillo J. is dated December 4, 2015 and was made in a proceeding commenced in 2006 by the defendant with respect to his late father’s estate (“the 2006 Estate matter”).

[16] In oral argument, the defendant made submissions with respect to steps taken by the trustee in bankruptcy regarding the defendant’s bankruptcy proceeding in the United States—the first of at least three steps in bankruptcy taken by the defendant. Two steps in the bankruptcy were subsequently taken by the defendant in Canada (filing a consumer proposal and filing of a notice of intention to make a Division I Proposal). The defendant argued that steps taken by the U.S. trustee were such that the defendant complied with (a) a documentary disclosure order made by Master Champagne (in this action) and, (b) an order with respect to costs by Patillo J. (in the 2006 Estate matter).

[17] The defendant was unable, in oral argument, to identify where, in either the motion record or the supplementary motion record, evidence in support of those two submissions could be found. The defendant was given until October 12, 2018 (nine days after the motion was argued) within which to advise the court in writing where in the record the supporting evidence could be found.

[18] On October 12, 2018, the defendant filed with the court a single-page, three-paragraph submission. The submission makes no mention of either the motion record or the supplementary motion record. The defendant attached to the submission 26 pages of documents and a repeat copy of his September 28, 2018 factum.

[19] The October 12, 2018 submission by the defendant fails to comply with para. 10(a) of my interim endorsement released on October 4, 2018. The October 2018 written submission from the defendant is, therefore, disregarded for the purpose of determining the plaintiffs’ motion.

The Issues

[20] The issues raised by and to be determined on the plaintiffs’ motion are:

1. Is the defendant in breach of r. 57.03(1) of the Rules by virtue of his failure to pay $500 in costs awarded against him by Master Champagne (as she then was) at a case conference conducted in June 2017?
2. Is the defendant in breach of one or more interlocutory orders made to date in this proceeding?
3. If the answer to one or both of Issue Nos. 1 and 2 is “yes”, are the plaintiffs entitled to an order striking the defendant’s pleading and noting him in default?

Issue No. 1 – June 2017 Costs Order

[21] Master Champagne conducted a case conference in June 2017. She did so at the request of the plaintiffs.

[22] The case conference endorsement signed by Master Champagne (exhibit 90 to the Assaly affidavit) identifies that the conference was requested by the plaintiffs “to obtain an order compelling the defendant, Thomas Assaly, to attend mandatory mediation”. It is clear from the endorsement that the defendant was refusing to attend mediation unless he was provided with a full accounting of the Estate. Master Champagne ordered the defendant to attend mediation “without conditions” (at para. 4).

[23] Master Champagne also ordered the defendant to pay the plaintiffs’ costs of the case conference. At para. 7 of her endorsement, the Master said, “Thomas Assaly shall pay the plaintiffs costs of $500.00 for today as his position in relation to the mediation was not reasonable and put the plaintiffs to the additional cost of scheduling and attending this case conference.”

[24] Subrule 57.03(2) addresses costs of a contested motion and sanctions available where a party ordered to pay costs fails to do so. The sanctions include striking out the defendant’s pleading.

[25] The defendant has not failed to pay costs awarded on a contested motion in this action. The plaintiffs have not provided the court with any law which supports drawing an analogy, for the purpose of r. 57.03(2), between costs awarded on a contested motion and costs awarded at a case conference.

[26] At para. 47 of their fresh as amended factum, the plaintiffs acknowledge that striking a defence pursuant to r. 57.03(2) is “a remedy with serious consequences”. The requisite analogy not being supported, I am unable to find that the defendant’s failure to pay the costs awarded against him in June 2017 is a breach of r. 57.03(1).

[27] The evidence with respect to the defendant’s failure to pay the June 2017 costs award is uncontradicted. The defendant does not dispute that the costs award remains unpaid.

[28] I find that the defendant’s failure to pay the June 2017 costs awarded is a breach of an interlocutory order within the meaning of r. 60.12. That breach is considered under both Issue Nos. 2 and 3 below.

Issue No. 2 – Breach of Interlocutory Orders in this Proceeding

[29] The plaintiffs submit that the defendant has breached interlocutory orders in this proceeding in at least four ways. The alleged breaches are:

a) The defendant’s failure to attend mediation on November 15, 2017, as ordered by Master Champagne on June 12, 2017. Master Champagne identified the November 2017 mediation date as “peremptory on the parties”; b) The defendant bringing a motion returnable on November 14, 2017 (i.e., a day prior to the date on which mediation was ordered to proceed) for relief related to an accounting of the Estate and which, if granted, would have precluded the parties from proceeding with mediation as ordered; c) The defendant’s failure, personally or through his trustee or attorney, to provide the plaintiffs with a copy of his bankruptcy petition from the United States and supporting documents, and to do so with 21 days of November 29, 2017, as ordered by Master Champagne on that date; and d) The defendant’s failure to pay costs of $500 as ordered by Master Champagne on June 12, 2007.

[30] On the basis of the uncontradicted evidence on this motion, I find that the defendant is in breach of interlocutory orders in this proceeding as set out in subparagraphs (a) to (d), immediately above.

[31] The plaintiffs submit that the defendant has, in the context of this motion, demonstrated disregard for the process and continued to commit breaches of interlocutory orders. The plaintiffs rely on the failure of the defendant to (a) deliver his factum within the time frame ordered by Master Champagne, and (b) follow my interim endorsement with respect to written submissions following the hearing of the motion. I agree with that submission and find that the defendant’s conduct with respect to written materials for this motion gives rise to two further breaches of interlocutory orders in this proceeding.

[32] In total, the defendant has committed breaches and/or remains in breach of interlocutory orders in this proceeding in six ways: the four ways listed in para. 29 plus the two ways described in para. 31, both above.

Issue No. 3 – Consequence of Breaches

[33] The six breaches by the defendant of interlocutory orders in this proceeding entitle the plaintiffs to some form of relief. The issues to be determined at this stage of analysis are:

a) Is the court entitled to consider the defendant’s conduct in other proceedings in addition to his breaches of interlocutory orders in this proceeding? b) To what relief are the plaintiffs entitled as a result of the breaches by the defendant of interlocutory orders, including those with respect to costs?

[34] I turn first to consideration of the defendant’s conduct in other proceedings.

a) The Case Law

[35] The court is well-aware that the relief sought, if granted, will result in the plaintiffs’ claim for damages being determined without consideration of the defendant’s position on the merits. The existence of rules 57.03(2) and 60.12 does not ignore the merits of a defaulting party’s position. The rationale for those rules is predicated on the fact that there will be situations where a party’s position ought to be determined on the basis of procedural reasons arising from the failure of that party to abide by orders made by the court (Bottan v. Vroom, 2001 CarswellOnt 2382, (S.C.), at para. 26).

[36] On the plaintiffs’ motion, the “situation” the court is entitled to consider includes the defendant’s conduct in this action and his conduct in other proceedings related to the Estate. In Rana v. Unifund Assurance Co., 2016 ONSC 2502, on a motion pursuant to rr. 57.03(2) and 60.12, the court considered the failure of the plaintiff to pay costs awarded against her (a) in the subject action, and (b) on appeals to both the Ontario Court of Appeal and the Supreme Court of Canada (at paras. 41-42). In Carbone v. DeGroote, 2018 ONSC 109, the court considered the plaintiffs’ failure to pay costs awarded against him in the subject action and in a separate action related to the same subject matter (at para. 46).

[37] I find that the plaintiffs’ action and various other proceedings commenced by the defendant relate to the same subject matter—the administration of the Estate. I therefore consider the defendant’s conduct in this proceeding (the six breaches of court orders identified above) together with the defendant’s conduct in the other, related proceedings.

b) Conduct in Other Proceedings

[38] The plaintiffs identify a number of other proceedings in which the defendant was involved, directly or indirectly. The plaintiffs submit that as a result of the defendant’s conduct (or at his direction), those proceedings were unnecessarily protracted and caused the plaintiffs in this action to incur significant legal expenses. The plaintiffs highlight that there are a number of outstanding costs awards from those proceedings; the costs as yet unpaid total in the low six-figure range.

[39] The proceedings in which the defendant was involved directly and is said to have instigated and/or directed are set out in detail at paras. 13 to 28 of the plaintiffs’ factum, at paras. 21 to 142 of the Assaly affidavit, and approximately 95 exhibits to that affidavit. I do not intend to review those proceedings in detail in these reasons. Those proceedings fall into four categories, each of which is discussed below.

i) The Defendant’s 2007 and 2008 Applications

[40] The other proceedings include a motion, without notice and on an urgent basis, in an application proceeding (where the notice of application had not yet been issued), for injunctive relief essentially freezing the Estate’s assets. In October 2007, the motion judge directed that the motion be brought on notice to Robert Assaly (the sole respondent named in the application), the named financial institution (presumably where the Estate assets were invested), and the beneficiaries of the Estate.

[41] In 2008, the defendant commenced a separate application in which he sought, amongst other relief, to have Robert Assaly removed as the trustee of the Estate. The defendant had previously consented to Robert Assaly being appointed to fulfil that role.

[42] Polowin J. presided over both the 2007 and 2008 proceedings. The parties settled both proceedings in 2008. As part of the settlement, the defendant (as applicant in both proceedings) executed minutes of settlement and a deed of indemnity. The evidence supports, and I make, a finding that the defendant’s failure to fulfil his obligations pursuant to the deed of indemnity resulted in the parties being required to negotiate a further agreement.

[43] That further agreement required the parties to execute a Full and Final Mutual Release. In that document, the defendant:

… remises, releases and forever discharges the Estate, Gloria Assaly, Douglas Assaly and Robert Assaly personally and in his capacity as Estate Trustee … of and from all manner of actions, causes of action … whatsoever which [Thomas G. Assaly] ever had, now has or hereinafter may have with respect to all of the claims, facts and issues raised in the claims in [the 2007 and 2008 proceedings] or which could have been raised in those proceedings in any manner whatsoever …

AND FURTHER Thomas G. Assaly agrees not to make any claims or take any proceedings against the Respondents … Thomas G. Assaly agrees to fully indemnify and save harmless, the Respondents.

[44] The settlement reached at that time included:

• The payment of $775,645.32 to the defendant “as part payment of his distributive share to date of the Estate”;
• The defendant’s approval of the administration of the Estate from September 11, 2007 to March 31, 2008 (“the Accounting Period”); and
• The defendant discharging Robert Assaly in his capacity as Estate Trustee, “from all actions, claims and demands” with respect to administration of the Estate during the Accounting Period.

[45] At para. 19 of the plaintiffs’ fresh as amended factum, on motion now before the court, the $775,645.32 is described as “a total payment out of the Estate”. It appears, however, from the Full and Final Mutual Release and the related “Approval and Release”, the latter executed by only the defendant, that the payment was intended as “an interim distribution of [the defendant’s] distributive share of the Estate.” (See section 2 of the Approval and Release—exhibit 10 to the Assaly affidavit.)

[46] The law firm holding a portion ($380,000) of the $775,645.32 in trust, brought an interpleader motion. The order made on that motion provided for payment of the $380,000 into court. It also required each of the defendant and Robert Assaly to pay $5,000 in costs on the interpleader motion.

[47] Polowin J. subsequently heard argument with respect to costs of the 2007 and 2008 proceedings. She ordered the defendant to pay $5,000 in costs to Gloria Assaly.

[48] The uncontradicted evidence on this motion is, and I find, that both awards of costs against the defendant remain outstanding—approximately ten years after each order was made. Those costs awards fall within the scope of r. 57.03(1), because they were each made with respect to a motion.

[49] Some confusion arose from the plaintiffs’ written submissions with respect to the defendant’s conduct in the years subsequent to the settlement of the 2007 and 2008 proceedings. At para. 28 of the plaintiffs’ fresh as amended factum, the following introductory statement is made: “Despite the 2008 settlement and despite having waived his right to seek a passing of accounts …” That statement introduces a list of steps taken by the defendant in 2010, 2015, and 2017 to obtain an order for a passing of accounts with respect to the Estate.

[50] That statement is confusing because the Approval and Release executed by the defendant relates only to the Accounting Period, which ended on March 31, 2008. At para. 1 of that document, the defendant acknowledges his satisfaction with the accounts for the administration of the Estate for the Accounting Period. In the same paragraph he says, I “do not wish to see or review any further accounts or other information for the Accounting Period”. The release clause (at para. 2 of the document) is restricted to conduct in the administration of the Estate during the Accounting Period.

[51] It was not clear as to whether the plaintiffs’ position is that (a) because of the terms of the Approval and Release the defendant is not entitled to a passing of accounts for the Estate for any period subsequent to the Accounting Period, or (b) the defendant’s conduct since the settlement was reached precludes him from pursuing such an accounting.

[52] I released an interim endorsement on this motion. In the endorsement, I identified the confusion with respect to the plaintiffs’ position and requested additional submissions in writing from the parties. I have reviewed the additional submissions received from the parties. The plaintiffs’ position is now clear.

[53] In summary, the plaintiffs submit that the defendant’s repeated proceedings, in which he requested an order for a passing of accounts for the Estate, were taken in flagrant violation of orders of the court. The plaintiffs point to a series of orders that imposed a pre-condition to such proceedings by the defendant: the defendant must first pay outstanding costs awards.

[54] The plaintiffs do not deny that the defendant is, in principle, entitled to an accounting for the Estate from the end of the Accounting Period forward. They take issue with the manner in which the defendant has attempted to secure an order for that accounting. The defendant’s conduct in that regard is discussed in subsections (ii) and (iii) below.

ii) The Defendant’s Conduct in 2010, 2015, and 2017

[55] In 2010, the defendant brought a motion without notice for an order requiring that the accounts for the Estate be passed. That motion was brought in the 2007 proceeding. The relief requested was initially granted. Robert Assaly, in his capacity as the Estate Trustee, was subsequently successful on a motion to have that initial order set aside. Beaudoin J. heard the latter motion in September 2010. His endorsement reads as follows:

The [initial order] should never have been brought without notice.

[The defendant’s] counsel clearly knew that the estate trustee was represented. Most critically – the fact of a settlement and a release were not disclosed to this court …

… What is required is an explanation for the actions taken earlier before [the judge who heard the initial motion].

[56] The initial order was set aside and the defendant was ordered to pay costs of $6,500. Beaudoin J. ordered that the costs be “paid forthwith and as a condition to any motion on notice to pass accounts.” Robert Assaly’s uncontradicted evidence is that the costs ordered by Beaudoin J. have never been paid.

[57] The defendant’s next attempt to obtain an order for the passing of accounts was made in 2015. The defendant brought a motion, in Toronto, in the context of the court file numbers for both the 2007 and 2008 proceedings (i.e., the proceedings that were the subject of minutes of settlement in 2008). In June 2015, Patillo J. granted the relief requested by the defendant.

[58] Once again, Robert Assaly, in his capacity as Estate Trustee, brought a motion to set aside the initial order. That motion was also heard by Patillo J. He set aside his earlier orders dated June and August 2015. Patillo J. also made the following orders:

2. THIS COURT FURTHER ORDERS that Thomas G. Assaly shall not make any further motions or bring any further proceedings in relation to the Estate of Thomas C. Assaly unless brought on notice to the Estate in Ottawa. Thomas G. Assaly shall not bring any such proceedings until the costs awarded below is (sic) fully satisfied.
3. THIS COURT FURTHER ORDERS that Thomas G. Assaly shall pay to the Estate of Thomas C. Assaly costs in the amount of $14,000, all in, within 30 days of this Order.

[59] Like Beaudoin J., Patillo J. made the payment of costs a pre-condition to the defendant bringing any further proceeding before the court with respect to the Estate. Robert Assaly’s uncontradicted evidence is that the costs ordered by Patillo J. have never been paid.

[60] The costs awards made by Beaudoin and Patillo JJ. fall within the scope of r. 57.03(2) because each award relates to a motion. The defendant’s failure to pay those costs awards is something the court may consider when determining the sanction to be imposed on the defendant as part of the relief requested by the plaintiffs on the motion now before the court.

[61] Patillo J.’s order was the subject of comment by Master Champagne in her June 2017 case conference endorsement in this action. At para. 4 of that endorsement, the Master said, “Mr. Assaly appears to be trying to obtain relief that he is barred by court from obtaining for so long as the costs he has been ordered to pay remain outstanding.” The endorsement also addressed the defendant’s failure to attend mediation. Lastly, Master Champagne ordered that the defendant pay $500 in costs to the plaintiffs for, amongst other things, the June 2017 case conference.

[62] Master Champagne’s endorsement could not have been any clearer as a reminder to the defendant of the requirement to pay outstanding costs before proceeding with a request for an order for an accounting with respect to the Estate. Despite that clarity, the defendant served a notice of motion, dated October 2017, in this action. The relief requested by the defendant includes, ‘[an] Order directing the Plaintiffs to provide a full accounting of the accounts of [the Estate] … as of March 31, 2008”. The defendant requested that the full accounting be provided at least two weeks prior to mediation in this action, which he identified was scheduled for November 15, 2017.

[63] The notice of motion was dated October 16, 2017; the motion was returnable on November 14, 2017 (i.e., the day prior to the date on which mediation was scheduled to proceed). The grounds upon which the defendant relied in support of the relief requested include that the defendant, “has made numerous requests over the years for an accounting of the Estate as well as all of the transactions therein, and the Trustee has failed to provide same.” The defendant made no mention of the outstanding costs awards or the pre-condition to be met before he is entitled to seek an order for an accounting.

[64] The defendant was represented by counsel when the October 2017 notice of motion was prepared and served. When the action came back before Master Champagne for a case conference in late November 2017, the defendant’s counsel sought and obtained an order removing him as the lawyer of record for the defendant.

[65] In summary, I find that in 2017 the defendant repeated his conduct of 2010 and 2015—bringing or attempting to bring the matter of an accounting for the Estate before the court without (a) making full disclosure to the court of relevant matters, and (b) first paying outstanding costs awards.

iii) The Defendant’s Children’s Action

[66] The plaintiffs also rely on what they allege is the defendant’s role in orchestrating and directing litigation commenced by his children against Gloria Assaly. That litigation was commenced in 2008, only a number of months after settlement of the 2007 and 2008 proceedings (both of which were commenced in the defendant’s name only). The defendant was not named as a plaintiff in the action commenced by his children. The litigation guardian for seven minor plaintiffs (of the eight named plaintiffs) was the children’s mother—Karen Assaly. She is now the defendant’s former spouse.

[67] The action commenced by or on behalf of the children is addressed in paras. 47-116 of the Assaly affidavit, exhibits 21-80 to that affidavit, and paras. 22-26 and 32-34 of the plaintiffs’ factum. To make findings with respect to the defendant’s conduct in relation to that litigation would require that inferences be drawn and/or findings made based on hearsay evidence. Reliance on such evidence is not required to find in favour of the plaintiffs on this motion. In light of the nature and extent of the defendant’s conduct in litigation in which he is a named party (i.e., the 2007 and 2008 applications and this action), I conclude that it is not necessary to consider his conduct with respect to the action commenced by or on behalf of his children.

iv) The Bankruptcy Proceeding

[68] In 2018, the defendant repeated his behaviour of failing to make full disclosure to the court and/or to opposing parties. He failed to make full disclosure in the context of his bankruptcy proceedings. The defendant’s conduct in that regard is the subject of comment by Kershman J. at paras. 43-44 of Re Assaly. Kershman J. found that the defendant breached Master Champagne’s case conference endorsement from June 2017. That breach of the Master’s endorsement is reflected in para. 29(d), above.

c) Conclusions

[69] The defendant’s conduct in this proceeding alone is sufficient to demonstrate his disregard for court orders. That conduct, in combination with his conduct in the 2007 and 2008 proceedings (including in 2010 and 2015) demonstrates (a) “utter disregard” for court orders (Lafontaine-Rish Medical Group v. Global TV News Inc. (2008), 232 O.A.C. 198 (Div. Ct.)), and (b) that the defendant does not take the Rules seriously. He is a repeat offender who systematically flouts court orders and uses the judicial system for his personal advantage.

[70] The issue that remains to be determined is the relief to which the plaintiffs are entitled pursuant to rr. 57.03(2) and 60.12.

Issue No. 3 - Sanctioning the Defendant’s Conduct

[71] To determine the relief to which the plaintiffs are entitled, I have taken into consideration the defendant’s conduct discussed under Issue No. 2, above. I note that the defendant was represented throughout much of this action and the other proceedings.

[72] Even when self-represented, for example on this motion, the defendant demonstrated the ability to prepare materials—although without meeting court-ordered deadlines. The defendant is not an unsophisticated litigant. Kershman J. concluded that the defendant is capable of attempting clever conduct in an effort to stay ahead of an opposing party (Re Assaly, at para. 43).

[73] The defendant is no different than any other litigant. Whether as a defendant in this action or the moving party in other proceedings, the defendant not only has the rights provided to him by the Rules; he has obligations. Those obligations include (a) the responsible exercise of his rights as a litigant, and (b) complying with the Rules.

[74] At paras. 1-2 of his decision in Rana, Dunphy J. said, “[t]here comes a point where the interests of justice require firm action … This court must ensure compliance with the orders that are made in the course of litigation because failure to do so is ultimately corrosive of the entire justice system.” I find that the defendant’s conduct in this action has reached the point that firm action is required. When the defendant’s conduct in other, related proceedings is taken into consideration, the requirement for firm action to be taken becomes even clearer.

[75] The plaintiffs are entitled to the relief requested on the motion.

Summary

[76] I order as follows:

1. The statement of defence in this action shall be struck.
2. The defendant is noted in default.
3. The plaintiffs shall proceed to an uncontested trial of the action as it relates to their respective claims for damages and any related claims for interest.
4. The plaintiffs shall serve the Trustee in Bankruptcy (Canadian) of Thomas G. Assaly with a copy of this endorsement and the order taken out pursuant to it.
5. The plaintiffs shall, at least 30 days prior to the date of the uncontested trial, provide notice in writing to the Trustee in Bankruptcy (Canadian) of the date of the uncontested trial. Notice in writing shall be provided by a letter from counsel for the plaintiffs to the office of the Trustee in Bankruptcy (Canadian), sent by registered and regular mail. Service shall be effective on the seventh day after the letter is sent by registered and regular mail.
6. The Trustee in Bankruptcy (Canadian) of Thomas G. Assaly shall be entitled to attend the uncontested trial for the purpose of viewing the proceeding, but shall not be entitled to present any evidence, file any documents, or make submissions at the uncontested trial.

[77] The plaintiffs shall prepare a draft order for my signature. The requirement for the approval from the defendant with respect to the form and content of the draft order is dispensed with. The draft order shall be filed with the civil counter to my attention.

[78] I remain seized of the matter and shall preside over the uncontested trial. The plaintiffs shall take the steps necessary to schedule this matter for an uncontested trial.

Costs

[79] As the successful parties, the plaintiffs are entitled to their costs of the motion. I see no reason to order otherwise. The only issues to be addressed are (a) the scale upon which costs are payable by the defendant, and (b) the quantum of costs to be paid by the defendant.

[80] In the event the parties are unable to agree upon one or both of the scale for and quantum of costs, they shall make submissions as follows:

a) The submissions shall be limited to a maximum of four pages (excluding the bill of costs); b) Written submissions shall comply with Rule 4 of the Rules; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules with respect to font size; d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released; and f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

[81] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn Released: April 4, 2019