COURT FILE NO.: 55936/15

DATE: 2019/12/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Vitucci and Cathleen Vitucci, Plaintiffs

AND:

Theoktiti Dimakis, Defendant

BEFORE: The Honourable Justice M. J. Donohue

COUNSEL: Michael Valente, Counsel, for the Plaintiffs

Clifford Lloyd, Counsel, for the Defendant

HEARD: November 29, 2019

REASONS FOR DECISION

OVERVIEW

[1] This simplified procedure action has been anything but. I was appointed case management judge due to the numerous court attendances and my role was to streamline the process so the matter could move to trial.

[2] The plaintiffs move today pursuant to rule 23.01(b) for leave to discontinue the action, with prejudice. The defendant opposes the motion and asks the court to deny leave so the litigation may proceed to be heard on its merits.

[3] The parties agree that following my decision today there will be submissions on costs.

BACKGROUND

[4] The defendant sold a house to the plaintiffs. In their statement of claim the plaintiffs alleged that on gaining possession of the house there was hidden mould and fire damage. They relied on an expert report by Mr. Ha who opined that the property was unsafe and not suitable for living.

[5] The plaintiffs’ claim was that the defendant breached a duty to disclose latent defects.

[6] The plaintiffs alleged that their remediation costs were in excess of $130,000. They limited their claim to $100,000 so they could claim under the simplified procedure rules.

[7] Since June 2015, the defendant has been either unable or unwilling to be examined for discovery or provide written interrogatories. Her discovery, which was ordered by the court, was curtailed due to illness. It was never completed. As an alternative, a motion for written interrogatories had to be brought by the plaintiffs and ultimately this was consented to by the defendant.

[8] On April 30, 2019, the defendant brought a motion asking that she be relieved from “partaking in further court proceedings.”

[9] In 2016, an expensive, and premature, summary judgment motion had been brought by the defendant which was dismissed.

[10] Permission to bring a second summary judgment by the defendant was denied by me on January 10, 2019 for reasons stated.

[11] The defendant is again seeking to bring this to a summary judgment motion.

REASONS TO DISCONTINUE

[12] By May 2019, the plaintiffs advised the defendant, and then the court, that they were seeking to discontinue the action.

[13] Their reasons were as follows:

• Their expert advised he was out of the country and then stopped communicating with the plaintiff’s counsel.

• Continuing the litigation would necessitate seeking leave to obtain a further expert report.

• They would need to incur the cost of a further expert report.

• The defendant’s further motion of April 30, 2019 was brought to relieve the defendant from testifying and proceed by summary judgment motion.

• The plaintiffs are prejudiced in being unable to test the defendant’s evidence by cross-examination.

• The defendant has still not paid two prior costs awards totalling $6,500 and there was evidence she is impecunious.

[14] I accept that these reasons are bona fide and reasonable, particularly in light of the expensive procedural history; the limited claim that was sought; and the possibility of never being able to cross-examine the plaintiff to test credibility.

LAW

[15] Motions to discontinue were discussed by Master Haberman in Anand v. State Farm et al., [2007] O.J. No. 1256, at para. 17 stating, “cases that deal with opposition on the merits of the motion are rare, occurring most frequently in cases where there are or are about to be similar proceedings in other jurisdictions.”

[16] The issue of similar proceedings in other jurisdictions is not present here.

[17] Master Haberman noted that the case law primarily relates with whether the defendant should receive costs.

[18] Justice Price outlined in 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002 at para. 47 that the court’s exercise in discretion to grant leave to discontinue should consider several factors; “the state of progress of the action; the prejudice suffered by either party should leave be granted or refused; and the court’s ability to neutralize prejudice by imposing terms.”

REVIEWING THE FACTORS

The State of the Progress of the Action

[19] I note there are further motions required as set out above, no pre-trial is set, and no trial date is set. The plaintiffs need to get another expert opinion.

[20] This point favours granting leave to discontinue.

Prejudice to Either Party if Leave Granted or Refused

[21] If leave is refused, the plaintiffs will necessarily incur more costs to obtain a further expert report against an impecunious defendant. The defendant is seeking to be relieved from testifying and is seeking a renewed summary judgment hearing which causes further costs to the plaintiff for their responses to these motions. With the potential recovery limited to $100,000, this results in ever diminishing returns.

[22] The prejudice argued on behalf of the defendant is that she will not have the opportunity to have the merits of her defence proven in court, by either summary judgment or trial. Her position is particularly that her reputation has been besmirched by this claim.

[23] The materials disclose however that she has brought a separate cause of action against the plaintiffs for mental distress caused by this action. She has alleged similar facts as here.

[24] The proceedings are clear in the action at bar that this litigation has been a strain on the defendant. Granting leave to discontinue is not a prejudice to her in light of the lengthy costs and attendances which would necessarily ensue if the action continued.

[25] The prejudice to the plaintiffs far outweighs that of the defendant.

[26] This point favours granting leave to discontinue.

The Court’s Ability to Neutralize Prejudice

[27] The term that the discontinuance is “with prejudice” should give the defendant comfort that this irksome litigation is at an end.

[28] This point favours granting leave to discontinue.

CONCLUSION

[29] The factors reviewed are all in favour of granting leave to discontinue, with prejudice.

[30] Accordingly, the plaintiffs’ motion is granted.

COSTS OF THE MOTION

[31] The plaintiffs, as the successful party, may file written submissions on costs of the motion by December 11, 2019. The defendant may file responding submissions by December 18, 2019. Reply, if any, is to be filed by December 23, 2019.

[32] Submissions are restricted to two pages plus cost outlines, offers to settle and law.

COSTS OF THE ACTION

[33] The defendant’s submissions regarding the discontinuance are due by December 18, 2019. The plaintiff’s responding submissions are due by December 31, 2019. Reply, if any, is to be filed by January 3, 2020.

[34] Submissions are restricted to four pages plus cost outlines, offers to settle and law.

M. J. Donohue J.

Date: December 3, 2019