Court File and Parties

Court File No.: CV-12-00453590 Motion Heard: 20190404 Superior Court of Justice - Ontario

Re: Paula Tomlinson, Plaintiff And: The Personal Insurance and Lorraine Brown-Comrie, Defendants

Before: Master B. McAfee

Counsel: S. Sharples, Counsel for the Defendant Lorraine Brown-Comrie S. Chaggar, Counsel for the Plaintiff Paula Tomlinson

Heard: April 4, 2019

Reasons for Decision

[1] This is a motion brought by the defendant Lorraine Brown-Comrie (the defendant) for an order dismissing the action.

[2] The plaintiff Paula Tomlinson (the plaintiff) opposes the motion.

[3] The action was dismissed as against the defendant the Personal Insurance on or about September 16, 2014.

[4] No case law or facta were filed for the motion.

[5] The defendant seeks an order dismissing the action for failure of the plaintiff to comply with the order of Master Graham dated April 23, 2018, and for failure to answer undertakings given on the plaintiff’s re-attendance on examination for discovery held on November 19, 2018. Although not referenced in the notice of the motion, the defendant also relies on the plaintiff’s failure to comply with the agreed upon timetable order of Justice Firestone dated March 14, 2018, as set out in the defendant’s supplementary motion material.

[6] With respect to the breach of the order of Master Graham dated April 23, 2018, the plaintiff failed to serve a further and better affidavit of documents and failed to answer certain undertakings. The costs ordered payable by Master Graham were paid by cheque on the morning of the motion.

[7] With respect to the breach of the court ordered timetable of Justice Firestone dated March 14, 2018, the plaintiff agreed to serve expert reports by February 28, 2019, and has not served any expert reports to date.

[8] The plaintiff failed to answer certain undertakings from the plaintiff’s re-attendance on examination for discovery held on November 19, 2018.

[9] The plaintiff’s explanation for non-compliance is that the parties were engaged in settlement negotiations that broke down as recently as on or about March 6, 2019.

[10] A trial date has been scheduled for March 16, 2020, and a pre-trial conference has been scheduled for January 24, 2020.

[11] The parties have been engaged in settlement negotiations that recently broke down. As stated by Master Muir in his endorsement dated March 7, 2019, a dismissal order is a remedy of last resort. In the circumstances of this particular case, I am prepared to provide the plaintiff with one further opportunity to comply with the above orders and to answer the undertakings given on the plaintiff’s most recent examination for discovery. I am satisfied that it is just to extend the time accordingly.

[12] I award no costs of the attendance before Master Muir on March 7, 2019. The motion was served over two weeks in advance of the initial return date. The plaintiff requested an adjournment that was opposed by the defendant. The adjournment was granted.

[13] I award no costs of the motion. The defendant pursued a dismissal of the action that was not granted. The plaintiff is in breach of court orders. There shall be no costs of the motion.

[14] With respect to the defendant’s request for costs of the re-attendance that took place on November 19, 2018, in my view any such costs are more properly considered costs of the action and not costs of this motion. I decline to award any such costs, without prejudice to seeking such costs from the trial Judge.

[15] Order to go as follows:

a. The time to serve a complete and proper affidavit of documents as ordered by Master Graham on April 23, 2018, is extended to 30 days from today’s date;

b. The time to answer all outstanding undertakings as ordered by Master Graham on April 23, 2018, and as given on the plaintiff’s re-attendance held on November 19, 2018, is extended to 30 days from today’s date;

c. The time for service of the plaintiff’s expert reports as ordered by Justice Firestone dated March 14, 2018, is extended to 60 days from today’s date.

d. There shall be no costs of the motion including the attendance on March 7, 2018.

Master B. McAfee Date: April 9, 2019