Court File and Parties

COURT FILE NO.: CV-14-512464

MOTION HEARD: 20190124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yllka Daci, Plaintiff

AND:

1062204 Ontario Inc. et al., Defendants

BEFORE: Master Abrams

COUNSEL: D.E. Litwin, for the Defendant, R. Serpa Auto Service Inc.

PARTY: Y. Daci, Plaintiff

HEARD: January 24, 2019

REASONS FOR DECISION

[1] Ms. Daci was examined for discovery on January 26, 2017. At her examination for discovery, undertakings were given by her to answer those questions listed in the chart appended as Schedule “A” hereto. R. Serpa Auto Service Inc. asks that Ms. Daci fulfill her undertakings within 30 days of today. No fewer than 7 written requests were made of Ms. Daci’s former lawyer to have Ms. Daci fulfill her undertakings (Exhibits “A” to “G” of Ms. D’Souza’s December 20/18 affidavit, filed herein). Ms. Daci has filed no responding motion materials.

[2] An undertaking is a promise to answer a question, given directly by the party being examined for discovery or by her lawyer on her behalf (which promise binds the party). Typically, undertakings are to be fulfilled, on a best efforts basis, within 60 days after the examination for discovery. Almost two years have passed since Ms. Daci’s examination for discovery.

[3] Ms. Daci is self-represented and has told me that she is scheduled to undergo major surgery in late March/19. I inquired as to whether she intends to retain new counsel. As at now, her answer is ‘no’. She did say that she has adult children who have helped her with aspects of this litigation; and, I would encourage her to enlist their assistance once again.

[4] In litigation, undertakings must be fulfilled by those who give them. Ms. Daci must fulfill her undertakings. However, given that Ms. Daci is self-represented and has advised that she is ill, I do not think it appropriate that she be required to fulfill her undertakings within 30 days. In all of the circumstances, and even with the amount of time that has already elapsed since Ms. Daci was examined for discovery, I think that this timeline is too restrictive.

[5] That being so, I am ordering that Ms. Daci’s undertakings be fulfilled by May 31/19—unless, before May 31/19, a court Order is obtained extending the May 31^st deadline or Mr. Litwin, in writing, consents to extending the May 31^st deadline. In allowing for this more relaxed timeline, I have recognized Ms. Daci’s need to convalesce without busying herself with her lawsuit. I have allowed for some 2 months before Ms. Daci’s surgery and 2 months after after the surgery for Ms. Daci to attend to answer undertakings.

[6] I have thought it prudent to give Ms. Daci some guidance on the fulfillment of her undertakings. And so I say, as follows:

[7] Where the questions require of Ms. Daci that she make inquiries of non-parties for documentation and information (for example: #5 in the chart: records from her driving education course provider), Ms. Daci shall produce to Mr. Litwin copies of at least two letters of request, if she is unable to produce the documentation and information. Her primary obligation is to make best efforts to provide information and produce documentation; but, if her efforts do not yield results, she is to provide evidence of those efforts.

[8] In the case of documentation to be furnished from health professionals (for example: #9 in the chart: records from Dr. Speers), Ms. Daci can (if she prefers) provide Mr. Litwin with a written authorization permitting him to obtain the promised documentation directly.

[9] If Ms. Daci is of the view that any of the undertakings listed has already been fulfilled, she is to advise as to when the undertakings was fulfilled and where Mr. Litwin can find the answer. If she provided documentation to her former lawyer, it is for her to follow up with the lawyer and not Mr. Litwin. With Ms. Daci now being self-represented, Mr. Litwin can deal with her only.

[10] If Ms. Daci cannot provide an answer asked of her directly, because she does not know or cannot recall and she cannot determine the answer, she is to say so (in writing). I note that her obligation is a continuing one and, if Ms. Daci later recalls or learns the answer, she is to advise Mr. Litwin of the answer, in writing.

[11] Ms. Daci has expressed upset at the fact that she was brought to court today. As I advised Ms. Daci, the motion brought by R. Serpa Auto Service Inc. is not unusual or personal to her. It is of a nature that Masters see in court, regularly, when undertakings are given and, 60 days after they are given, remain unanswered/unfulfilled.

[12] I am not ordering costs payable immediately, by anyone, on this motion. Costs of the motion are reserved to the trial judge.

[13] I have signed an Order herein, which Order is effective without further formality. As I said in court, Ms. Daci is urged to seek legal advice or guidance as she moves forward with her lawsuit.

January 24/19 ____________________________________