COURT FILE NO.: CV-13-2002-00
DATE: 20200827
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RONALD VICTOR ZALDIN, Applicant
AND:
SATISH CHANDRA, Respondent
BEFORE: Justice Irving André
COUNSEL: R. Zaldin, the Applicant, on his own behalf
A. Toor, for the Respondent
HEARD: August 4, 2020, via video conference
ENDORSEMENT
[1] Mr. Ronald Zaldin brings a motion seeking a court order striking out Mr. Chandra’s November 19, 2019 affidavit and another seeking to vacate two orders of assessment against him dated May 8, 2013 and January 25, 2019. He submits that the court should grant the remedies he seeks because Mr. Chandra has effectively sabotaged his right to cross-examine him on his affidavit and because of the unwarranted delay in the setting of a date for the assessment.
BACKGROUND INFORMATION
[2] Mr. Chandra retained Mr. Zaldin in a family matter on or about 2011. With the consent of Mr. Chandra, Mr. Zaldin settled the litigation on December 7, 2012. The settlement involved Mr. Chandra receiving an equalization payment of $745,000 and the receipt of $3,400 monthly spousal support from his spouse until further court order.
[3] Mr. Zaldin billed Mr. Chandra approximately $140,000 in fees and disbursements. Mr. Chandra challenged Mr. Zaldin’s accounts and obtained an Order for Assessment from the Registrar on May 8, 2013.
[4] The parties met with an Assessment Officer in October 2015, December 2015 and January 2016. The matter has been in limbo ever since, despite a number of court motions and orders.
[5] Mr. Zaldin served a Notice of Cross-Examination on Mr. Chandra on November 21, 2019. It stated that:
YOU ARE REQUIRED TO BRING WITH YOU and produce at your Examination, the documents mentioned in Rule 34.10(2) of the Rules of Civil Procedure, including:
(a) A LIST OF DATES that you visited your family doctor since you obtained an Order for Assessment on May 8/13;
(b) copies of your medical records from your family doctors since you obtained the May 8/13 Order for Assessment;
(c) a list of dates that you visited your psychiatrists, psychologist and/or therapists since you obtained an Order for Assessment herein on May 8, 2013;
(d) copies of the medical records of your psychiatrists, psychologists and/or therapists since you obtained an Order for Assessment herein on May 8, 2013; and
(e) all documents bearing on and in connection with the issues dealt with in your reply Affidavit of Nov. 19/19.
[6] Mr. Zaldin cross-examined Mr. Chandra on February 19, 2020 but failed to obtain answers to many questions he posed to Mr. Chandra.
COURT ORDERS
Donohue J.’s Order
[7] On May 19, 2016, Donohue J. heard a motion brought by Mr. Zaldin to compel Mr. Chandra to attend a day of examination for discovery. Donohue J. ultimately denied the motion but ordered the following:
(i) That the Client provide further particulars to flesh out his list of complaints with respect to the solicitor’s seventeen accounts;
(ii) That the Client provide a “will-say” statement considering each of the nine considerations set out in Cohen v. Kealey (1985), 26 C.P.C. (2d) 211; and
(iii) That the Client serve and file an Affidavit of Documents and a tabbed document Brief with copies of all documents contained in his Affidavit of Documents.
Petersen J.’s Order
[8] In 2017 Mr. Zaldin brought a motion to set aside the May 8, 2013 Assessment Order and to dismiss Mr. Chandra’s claims in the assessment hearings based on Mr. Chandra’s alleged non-compliance with directions issued to him by an Assessment Officer on November 9, 2015 and with Donohue J.’s order. Petersen J. denied the motion and made the following findings, which are germane to this motion:
(1) At para. 8 of her endorsement Petersen J. noted that:
Although the delay in this matter has been extensive (4.5 years) if counted from the date the Assessment Order was obtained (May 8, 2013), it would be unfair to use that commencement date to calculate the period of delay attributable to Mr. Chandra, since Mr. Zaldin did not produce detailed dockets related to his disputed accounts until February 1, 2016.
(2) At para. 22, Petersen J. found that Mr. Chandra has substantially complied with Donohue J.’s order.
[9] Petersen J. also made the following orders at para. 39 of her endorsement:
[39] Pursuant to Rules 55 and 60.12, in the interest of avoiding further delay and of ensuring a fair process, I order the following Directions with respect to the assessment hearing:
(a) Mr. Chandra shall serve and file, within 30 days of this Order, a bound (hard copy), tabbed and indexed Book of Documents containing all of the documents upon which he intends to rely at the assessment hearing. The Book of Documents shall only contain documents referenced in the August 22, 2016 list of complaints.
(b) Mr. Chandra shall not be permitted to rely at the hearing on any documents other than those contained in the Book of Documents, subject to his right to rely on any additional documents submitted by Mr. Zaldin at the hearing. Mr. Chandra may also rely on the audio recording previously disclosed to Mr. Zaldin on August 22, 2016. However, the admissibility of the audio recording and of any documents submitted by either party shall be determined by the Assessment Officer who conducts the assessment hearing.
(c) Mr. Chandra shall not be permitted to raise additional complaints about Mr. Zaldin’s accounts other than those referenced in his Will-Say Statement and in the particulars that Mr. Sidhu provided by letter dated August 22, 2016.
[10] The parties were ordered to attend before an Assessment Officer on December 20, 2019 to set a date for an assessment.
[11] Mr. Zaldin brought another motion in November 2019 for similar relief. In response to Mr. Chandra’s filed affidavit dated November 19, 2019, Mr. Zaldin served notice of his intention to cross-examine Mr. Chandra on the contents of his affidavit. Fragomeni J. heard the motion and made an endorsement on November 25, 2019, which provided, inter alia, that:
(1) The cross-examination shall take place on December 18, 2019;
(2) The cross-examination is limited to 3 hours and will be related only to the contents of the November 19, 2019 affidavit filed by Mr. Chandra;
(3) The December 20, 2019 set date before the Assessment Officer is hereby cancelled; and
(4) Costs of today’s attendance are reserved to the justice dealing with the long motion.
[12] Fragomeni J. adjourned Mr. Zaldin’s motion to July 22, 2020. On that date, the court adjourned the motion to August 4, 2020.
POSITION OF THE SOLICITOR
[13] Mr. Zaldin seeks to adjourn his motion originally scheduled to proceed on July 22, 2020, to permit the court to rule on his motion brought on March 16, 2020. In that motion, he asks the court to strike out Mr. Chandra’s November 4, 2019 affidavit due to Mr. Chandra’s refusal to answer questions during the cross-examination on February 19, 2020. He also seeks to dismiss the notice of assessment dated January 25, 2019 because “no accounts were attached to that order”.
[14] Mr. Zaldin submits that Mr. Chandra failed to provide answers to the following questions which he specifically requested from Mr. Chandra on December 10, 2019:
(a) an OHIP Summary from May 8, 2013 to date of production
(b) a LIST OF DATES that you visited you family doctor(s) since the Order for Assessment of May 8/13;
(c) copies of your medical records from your family doctors since you obtained the May 8/13 Order for Assessment;
(d) list of dates that you visited your psychiatrists, psychologists and/or therapists since you obtained an Order for Assessment herein on May 8, 2013;
(e) copies of the medical records of your psychiatrists, psychologists and/or therapists since you obtained an Order for Assessment herein on May 8, 2013;
(f) documents showing you had ample resources to hire Mr. Toor to obtain an Assessment date from May 8, 2013 to November 25, 2019, including:
i. your complete income tax returns from 2013 to 2018 inclusive
ii. your complete Notices of Assessment and Notices of Re-Assessment from 2013 to 2018 inclusive
iii. your bank statements for May 2013, May 2014, May 2015, May 2016, May 2017, May 2018, May 2019, and, for the period November 30/17 to November 25/19
(g) copies of all accounts rendered to you by Rick Toor from May 8, 2013 to date of production 9to show what steps Mr. Toor took to obtain an Assessment date herein)
(h) copies of all correspondence and emails between yourself and Rick Toor and/or any other lawyer, with respect to such lawyer(s) obtaining an assessment date herein;
(i) an articulation of any and all explanations or excuses by you (in chronological order) for your 7-8 year delay in obtaining an assessment date herein;
(j) advising the date on which you filed with the Brampton Court your latest Affidavit of Documents (and to produce written proof of that filing) and advising the date that you filed with the Court, your Book of Documents ordered by Justice Petersen on November 30, 2017 (in Paragraph 39 thereof) and written proof of that filing;
(k) advise WHO you spoke to by phone at the Court Office in March or April 2018 and the exact date of that telephone conversation (in an attempt to obtain an assessment hearing date) and who told you your file was in storage;
(l) advise what health issues you were suffering from in March and April of 2018;
(m) advise what health issues you were suffering from May 1, 2018 to November 25, 2019;
(n) advise WHY you did not ask and/or retain Rick Toor to obtain an assessment date herein from March/April 2018 until mid-October 2018;
(o) advise what steps Rick Toor took from October 31, 2018 to January 25, 2019 to obtain an assessment date herein;
(p) advise why Rick Toor was unsuccessful (from November 13 to December 10, 2018) in scheduling an assessment hearing at the Brampton Court
(q) advise why you took five weeks from Feb 1/19 to Mar 4/19 to advise me of the April 29, 2019 assessment date obtained by Mr. Toor on your behalf on January 25, 2019;
(r) advise and produce any correspondence to me by yourself or by Rick Toor on your behalf (referred to in your email to me dated March 6, 2019, copy attached hereto);
(s) advise why there were no accounts attached to the one-page Order for Assessment obtained by Mr. Toor Jan 25/19
(t) answer my questions in my email to you of March 7/19 at 4:53 p.m. (copy also attached hereto)
(u) produce copies of all other documents bearing on and related to the issues dealt with in your reply Affidavit sworn November 19, 1919.
[15] Mr. Zaldin submits that Mr. Chandra “sabotaged” the February 19, 2020 cross-examination hearing by refusing to answer questions concerning the following:
(1) his finances;
(2) his medical history;
(3) his trip to Dubai; and
(4) his 16-month delay in retaining his counsel.
[16] Mr. Zaldin submits that these questions are relevant to the issue of Mr. Chandra’s unseemly delay in scheduling an Assessment hearing in this case.
POSITION OF THE CLIENT
[17] Mr. Chandra’s counsel submits that Mr. Zaldin’s motion should be dismissed given that:
(1) Substantial medical disclosure has been provided to Mr. Zaldin;
(2) Mr. Zaldin has persistently sought to avoid an Assessment hearing and continues to do so;
(3) Mr. Chandra has provided reasons why he could not, due to medical problems, set a date for an Assessment hearing; and
(4) Mr. Chandra’s right to challenge Mr. Zaldin’s accounts should not be undermined by the delay tactics of Mr. Zaldin.
ANALYSIS
[18] This motion raises the following issues:
(1) Should Mr. Chandra’s November 4, 2019 affidavit be struck?
(2) Should the Order of Assessment dated January 25, 2019 be dismissed?
(3) Should the orders of Assessment issued on May 8, 2013 and January 25, 2019 be set aside for delay?
Should Mr. Chandra’s Affidavit be Struck?
THE LAW
[19] Rule 60.12 of the Rules of Civil Procedure provides that:
Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
(a) stay the party’s proceeding;
(b) dismiss the party’s proceeding or strike out the party’s defence; or
(c) make such other order as is just.
[20] A “motion to strike ‘is a most drastic remedy’ and should be resorted to only as a ‘last resort.’ It is only after all else has failed that an order to strike pleadings be made; usually it is done only after allowing the defaulting party every opportunity to remedy the defaults in question”: Talisman v. Stryjak, 2015 ONSC 549, at para. 21.
[21] In Gordon v. Starr (2007), 2007 CanLII 35527 (ON SC), 42 R.F.L. (6th) 366, at para. 23, the court noted the following:
Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences.
[22] In Langenecker, the Court of Appeal for Ontario noted that a court may dismiss a claim for delay where a) the delay is caused by intentional conduct of the plaintiff or its counsel and demonstrates a disdain or disrespect for the court processes; or b) the delay must be inordinate, inexcusable, and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay: Langenecker v. Sauvé, 2011 ONCA 803 at paras. 6-7.
ANALYSIS
[23] Mr. Zaldin advances the following reasons why Mr. Chandra’s affidavit should be struck:
(a) his refusal to answer questions about his health;
(b) his refusal to answer questions about his finances;
(c) his hostile and abrasive responses to questions; and
(d) his refusal to provide documents requested by Mr. Zaldin.
Refusal to Answer Questions About His Health
[24] To properly assess Mr. Zaldin’s contention that Mr. Chandra sabotaged his cross-examination on February 20, 2020, I note the following statements which Mr. Chandra made in his November 19, 2019 affidavit:
(1) He noted at para. 19 that he encountered medical issues in 2017 and 2018 “which delayed my ability to schedule an Assessment hearing”; and
(2) 20. To begin with, from 2017 to present, I have been suffering from major depressive disorder and anxiety for which I am prescribed the medication Escitalopram. A copy of my Patient Medical History from Shoppers Drug Mart where I get my prescription is attached hereto and marked as Exhibit “D”.
As a result of my medication, I often feel any combination of the following side-effects: diarrhea, drowsiness, headache, insomnia, nausea, dizziness, dyspepsia, fatigue, and decreased libido.
As such, I am not able to perform the same activities, both physically and mentally, as I once was.
Scheduling this Assessment hearing was especially difficult for me as I do not live in the Greater Toronto Area, and so attending court to schedule this Assessment hearing was a very big undertaking.
To further complicate matters, on October 17, 2018, I was pushing a piano when I felt a painful pop in my left posterior heel. A copy of the medical reports related to this injury are attached hereto and marked as Exhibit “E”.
It turns out that I ruptured my left Achilles. As I was recovering from this injury, I fell and I broke my arm.
As I was unable to schedule an Assessment date by myself, in or about October 2018 I enlisted the assistance of my former counsel, A. Rick Toor, in attempting to schedule an Assessment hearing.
Medical Disclosure
[25] Mr. Chandra also provided a number of medical reports relating to his Achilles heel tendon injury, a list of his prescription medication from 2009 to 2012, letters to him from his family doctor, a list of his prescription medication from 2017 to 2019 showing the dates when Mr. Chandra’s doctor prescribed the medication, his medical history report, medical reports from April 27, 2018 to October 23, 2019, and a note from his doctor covering the period from 2014 to 2019. He also provided Mr. Zaldin a psychiatric report dated October 1, 2012 from Dr. S. Patmanidis which indicates that as a result of his family issues, Mr. Chandra “developed chronic anxiety/depressive symptoms” which resulted in the doctor prescribing Mr. Chandra antidepressant medication. In another letter dated July 7, 2014, Dr. Patmanidis advised that Mr. Chandra “is still exhibiting antidepressant effects”.
[26] Given this disclosure which was provided to indicate Mr. Chandra’s delay in setting an assessment hearing date in this matter, I fail to see the relevance of many questions that Mr. Zaldin posed to Mr. Chandra in his December 10, 2019 correspondence. These include:
(a) a list of dates Mr. Chandra visited his family doctor since May 8, 2013;
(b) copies of medical records from family doctors since May 2013;
(c) lists of dates Mr. Chandra visited his psychiatrists, psychologists since May 2013;
(d) copies of all medical reports of these medical prognosis;
(e) copies of all income tax assessments from May to November 2019;
(f) “an articulation of any and all explanations or excuses … for your 7-8 year delay in obtaining an assessment date herein.”
[27] In my respectful view, it is unnecessary for Mr. Zaldin to request this information to embark upon a forensic questioning of Mr. Chandra about his medical issues and about his finances. Mr. Zaldin has received documentation about Mr. Chandra’s medical issues and about his finances. He has sufficient information to enable him to again seek to set aside the Assessment orders issued against him. He also has Mr. Chandra’s affidavit regarding the setting of an Assessment date in this matter and has been afforded an opportunity to question Mr. Chandra on his version of the events surrounding the setting of an Assessment date.
[28] In my view, Fragomeni J.’s order does not provide Mr. Zaldin an unfettered licence to conduct a microscopic cross-examination of Mr. Chandra about matters he was already provided information about, the moreso when this information has precious little to do with having an Assessment hearing for which there has been an order since May 8, 2013.
[29] I am therefore not persuaded that Mr. Chandra, despite the heated exchanges between Mr. Zaldin and himself during the cross-examination, has sabotaged Mr. Zaldin’s right to cross-examine him. This right is not an unlimited one. The scope of the cross-examination is determined, to a significant degree, by the outstanding issue or issues between the parties. Mr. Zaldin has received, in my view, adequate disclosure about Mr. Chandra’s medical issues and has information about his finances which he seeks to use in his long motion concerning Mr. Chandra’s delay in setting an Assessment date in this matter.
[30] For these reasons, I deny Mr. Zaldin’s motion to strike Mr. Chandra’s November 19, 2019 affidavit.
[31] That said, Mr. Chandra should provide Mr. Zaldin an updated report from his psychiatrist covering the period November 2017 to the present. This report can be provided to Mr. Zaldin without the necessity of cross-examination.
Should the Assessment Order dated January 25, 2019 be dismissed?
[32] Mr. Zaldin submits that the order is null and void because no accounts were attached to the order. Specifically, he submits that Mr. Chandra:
[W]rongfully obtained 9resurrected) the lapsed Order for Assessment dated May 8, 2013 on January 25, 2019 (to which NO accounts were attached/referred to Assessment), despite the fact that more than six years had passed since the Client obtained the May 8, 2013 … Order for Assessment of the Solicitor’s 17 accounts dated Apr(sic) 12/12 to December 2/12 inclusive.
[33] I do not agree with Mr. Zaldin’s submission that the January 25, 2019 is null and void because no accounts were attached to it. First, Mr. Zaldin failed to appeal the Registrar’s decision to issue the order and cannot now seek to set it aside. Second, Ms. Zaldin clearly knows what accounts the Order relates to. Indeed, he has had knowledge of the accounts which Mr. Chandra seeks to assess since 2013. For these reasons, I cannot find a valid reason for setting aside this order.
Should the Assessment Orders be Set Aside on Account of Delay?
[34] The delay in setting an Assessment date int his matter is attributable to three factors, based on my review of the evidence presented in this matter, namely:
(a) Mr. Chandra’s delay in retaining Mr. Toor to handle the matter;
(b) Mr. Zaldin’s motions to the court; and
(c) COVID-19.
Delay in Retaining Counsel
[35] Mr. Zaldin maintains that Mr. Chandra delayed some sixteen months following Petersen J.’s November 2017 endorsement. Even I accept his contention that Mr. Chandra’s alleged financial woes do not justify this delay, I do not accept the suggestion that Mr. Chandra simply dragged his feet in setting such a date. First, a medical report from the Southlake Regional Health Centre dated October 22, 2018, which indicates that Mr. Chandra is in good health, nevertheless states that he “ruptured his left tendon Achilles” while moving a piano on October 17, 2018 causing him to seek medical attention the next day. Second, Mr. Chandra’s patient medical history indicates that from August 2017 to August 24, 2019, Mr. Chandra’s family doctor, Dr. P. Zanette, prescribed the drug Escitalopram which Mr. Chandra deposed was for his depression. The fact that Mr. Chandra travelled to Dubai may support Mr. Zaldin’s position that lack of financing does not adequately explain the delay in obtaining an Assessment date; however, it does not undermine Mr. Chandra’s contention that his ongoing depression partly caused some of the delay in setting an Assessment.
Mr. Zaldin’s Actions
[36] Mr. Chandra obtained an Assessment date for March 29, 2019. Mr. Zaldin was unavailable on that date. This date was therefore changed to April 29, 2019.
[37] The hearing did not proceed on that date because Mr. Zaldin served a Notice of Motion returnable on November 25, 2019. The Assessment hearing was therefore adjourned to December 20, 2019. The Assessment did not take place on this latter date due to Mr. Zaldin’s Notice to Cross-Examine Mr. Chandra on his November 19, 2020 affidavit. Furthermore, an Assessment could not be scheduled before the hearing of Mr. Zaldin’s motion initially scheduled for July 22, 2020. I also note, parenthetically, that Mr. Zaldin unsuccessfully tried to have an Assessment officer set aside the Order for Assessment. Finally, Mr. Zaldin, in this hearing, has requested an adjournment of his motion to dismiss Mr. Chandra’s action on account of delay.
[38] The chronology of events calls into question whether Mr. Zaldin wishes to proceed with the Assessment hearing. He has repeatedly sought to have the court dismiss the assessment orders and has, on at least one occasion in the past, sought to have an Assessment officer dismiss an Order of Assessment.
COVID-19
[39] I can take judicial notice of the fact that the pandemic has disrupted the court process and has caused delays in the hearing of court matters and the setting of dates for them.
CONCLUSION
[40] For the above reasons, Mr. Zaldin’s motion is dismissed.
ORDERS
(1) Order to go that Mr. Chandra contact the Assessment Office within thirty (30) days of today’s date and set a hearing date or dates for the Assessment hearing. Mr. Zaldin’s available dates must be obtained prior to the setting of dates for this hearing.
(2) Mr. Chandra must provide Mr. Zaldin an updated report from his psychiatrist within thirty days of today’s date.
COSTS
[41] Mr. Chandra seeks costs in the amount of $8,000 approximately in this matter.
[42] In determining what amount of costs can be considered fair and reasonable in this matter, I consider the following factors:
(a) the matter is moderately complex and involved a fair amount of preparation;
(b) Mr. Chandra was substantially successful; and
(c) the costs sought cannot be described as unreasonable in the circumstances of this case.
[43] Based on these factors, I award costs in favour of Mr. Chandra in the amount of $5,000 inclusive. Mr. Zaldin must pay the amount within ninety (90) days of today’s date.
André J.
Date: August 27, 2020