Superior Court of Justice
COURT FILE NO.: CV-12-5720-00
DATE: 2021 04 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DEAN HEFFERNAN
Plaintiff
Dean Heffernan, the Plaintiff, on his own behalf
- and -
JOHN H. KIEFFER PROFESSIONAL CORPORATION, JOHN H. KIEFFER, Barrister and Solicitor
Defendants
James Bennett and Nicole Wozniak, for the Defendants
REASONS FOR DECISION ON MOTION UNDER RULE 24.01
DALEY J.
INTRODUCTION:
[1] This action involves a claim by the plaintiff against his former legal counsel for damages he claims arise from his representation during certain criminal proceedings brought against him.
[2] This action was commenced in 2012 and as outlined below there has been no progress in this litigation whatsoever since its beginning.
[3] The defendant lawyer brought a motion to dismiss this action for delay pursuant to Rule 24 of the Rules of Civil Procedure.
[4] For the reasons outlined below, the defendants' motion is granted, and the plaintiff's action is dismissed.
[5] In order to adequately explain the reasons for the dismissal of this action, the history and context of this action are important.
[6] As will be explained further in my reasons below, the plaintiff is an extremely savvy and experienced self-represented litigant who has successfully "ragged the puck" in this litigation for over eight years. He has demonstrated a high degree of familiarity with the rules of civil procedure and the substantive law relating to this action and the defendants’ motion.
[7] On a return of this motion on March 26, 2021, before me, as the case management judge, the plaintiff sought an adjournment of this motion. The plaintiff's request for an adjournment was denied based on the lack of any reliable and credible evidence and further based on the lengthy history of the defendants’ motion and directions that have been provided in establishing the return date.
[8] The defendants’ motion to dismiss for delay was first returnable before me on December 1, 2020 via Zoom. Following that attendance, in an endorsement outlining the circumstances before the court on that date, further orders and directions was released to the parties on December 2, 2020, as to the conduct of the defendants' motion.
[9] During that attendance, the plaintiff complained that certain material with respect to the defendants’ motion was not properly served upon him and as well he wished further time to file responding materials to the defendants’ motion. The motion was adjourned on that date.
[10] Also, on the return of the motion on December 1, 2020, the plaintiff indicated that he was not physically capable of participating in a motion via Zoom and that he required an in-person attendance in court with me and counsel for the defendants in attendance. Given the Covid-19 pandemic and the safety considerations resulting, I advised the plaintiff that an in-person attendance would not be allowed and that the matter would proceed by Zoom.
[11] The plaintiff further indicated on this attendance that he had certain vision restrictions which limited his ability to properly read and to participate in a motion by Zoom.
[12] Given the multiple issues raised by the plaintiff on the first return date for the defendants’ motion, I addressed all those issues and the plaintiff's requests for special accommodations in my endorsement dated December 2, 2020. A copy of that endorsement is attached to these reasons as Appendix A for ease of reference.
[13] After the attendance of December 1, 2020, the plaintiff advised by correspondence to the court administration that he wished to move to strike out certain portions of the affidavit in support of the defendants’ motion and as such the parties were advised that I would schedule a time for the plaintiff to bring such a motion prior to the hearing of the defendants’ motion. Again, for ease of reference, attached to these reasons is my in chambers' endorsement of December 14, 2020 outlining the directions provided concerning the plaintiff's proposed motion, which is marked as Appendix B.
[14] As he was directed, the plaintiff provided two letters from his ophthalmologist's office from Dr. David S. Rootman, dated November 26, and December 10, 2020 outlining his current vision diagnosis and limitations. Based on the medical evidence adduced via the plaintiff's letter, I determined that the motions in this matter would be conducted over the Zoom platform by use of the audio function only. I further directed that both parties were to submit their respective motion records following which a hearing date for both motions would be scheduled.
[15] Ultimately counsel for the defendants advised that the impugned paragraph in the defendants’ supporting affidavit, which the plaintiff sought to have struck, would be withdrawn and therefore it was unnecessary for the plaintiff to proceed with his proposed motion.
[16] On January 4, 2021, a chambers' endorsement was released to the parties outlining additional orders and directions relating to the scheduling of the defendants’ motion. Attached to these reasons for decision is a copy of that endorsement marked as Appendix C.
[17] On February 1, 2021, following the filing of the defendants’ motion record with my administrative assistant, the defendants’ motion was scheduled for the return date of March 26, 2021.
[18] In view of the procedural and hearing accommodations requested by the plaintiff, I requested that my administrative assistant inquire of the trial office staff a few days prior to the return date of the motion as to whether the plaintiff had filed any responding material to the defendants’ motion, as required. I was advised by my administrative assistant that the plaintiff had not filed any material.
[19] On the afternoon of March 25, 2021, the day before the return of the defendants’ motion, my administrative assistant forwarded to me a chain of email communications between the plaintiff, and the defendants’ counsel. I did not read the material which was improperly submitted by the plaintiff by way of email to my administrative assistant.
[20] On the return of the defendants’ motion, the plaintiff sought an adjournment, without any evidence whatsoever being filed with respect to that request. With the consent of counsel for the defendants and at the request of the plaintiff, I considered a medical note relating to the plaintiff dated March 25, 2021 from the office of Dr. David S. Rootman, ophthalmologist, from a Dr. Chan.
[21] The note was addressed "to whom it may concern" and it stated:
This patient reports a recurrent erosion flareup the last four days in the left eye. Since then he has needed to rest his eyes with keeping them closed for extended durations and to reduce screen time use. At today’s eye examination, the eyes looked to be improved but they may still flareup unexpectedly.
[22] This was the only information submitted by the plaintiff in support of his request for the adjournment of the motion on the basis that he wished to file responding material, which was long overdue. He further made submissions that he wished to amend his statement of claim to assert other causes of action including harassment as against the defendants, however this proposed amendment was never verbally articulated with any precision at all.
[23] Although, the medical report from Dr. Chan seemed to indicate that the plaintiff was having some vision flareups in the preceding four days, no evidence whatsoever was provided as to why the plaintiff was not able to serve and file the required responding motion record long before the return date of the defendants’ motion. He offered no submission that could be considered a reasonable explanation as to his lack of compliance in terms of filing a responding record. He raised arguments with respect to not having properly received the defendants’ original and amended motion records which according to the file materials were served by mail. The plaintiff acknowledged that he has moved from time to time and that he had not filed address change notices with the court. However, he acknowledged receiving the defendants’ motion material electronically and as such he was unable to offer any explanation whatsoever for his failure to file a responding motion record within the extended timetable that was granted to him.
[24] Also, it is important to note that, as discussed below, the plaintiff's action had been administratively dismissed as he had failed to set the action down for trial and that that dismissal order was set aside by the order of Master Graham. The Master set a timetable within which the plaintiff was to complete the necessary steps to have the action then set down for trial, however the plaintiff breached all the terms of Master Graham's order.
[25] On the return of the defendants’ motion, initially the plaintiff appeared on the Zoom platform both on audio and video however after a few moments he advised that he would be shutting off his camera and proceeding with the audio function only. No explanation was provided as to why he shut off the camera function, however in keeping with my earlier decisions the motion proceeded on the basis that the plaintiff would remain off-camera throughout. There were no technical impediments to either side making their submissions either by video or audio over the Zoom platform.
[26] Having given the plaintiff every reasonable opportunity and accommodation necessary to allow him to have more than adequate time to prepare for this motion and to file a responding record and having granted an adjournment of the defendants’ motion from December 1, 2020 to March 26, 2021 and absent any reliable evidence supporting the plaintiff's request for an adjournment, his request was denied.
[27] After I informed the parties that the adjournment request was being denied, I called upon counsel for the defendants to proceed with his submissions on the motion. At that point, the plaintiff interrupted those submissions and stated that he wished to accept the defendants’ Rule 49 offer and that he would consent to the defendants’ motion including the dismissal of the action. The terms and conditions of any offer from the defendants to the plaintiff were not shared with me, and the plaintiff was directed that he was not to disclose the terms of the defendants' offer to me.
[28] In response to the plaintiff's request that the motion be terminated based on his acceptance of the defendants’ offer, counsel for the defendants stated that he wished to complete his submissions on the motion and proceed to a determination of the motion on the merits. The plaintiff opposed this, however I then called upon counsel for the defendants to continue with his submissions.
[29] Counsel for the defendants had commenced his submissions and even if the plaintiff wished to accept the defendants' offer, he expressly stated that he wished to do so solely in the hopes of reducing his exposure to legal costs.
[30] As the terms of the defendants' offer were not disclosed and given the plaintiff's clear pattern of excessive delay and obfuscation, combined with his continuing breach of court orders, I determined that the proper course was to allow the defendants' counsel to complete his submissions so that the motion could be properly adjudicated on its merits and as well to avoid the risk of bringing the administration of justice into disrepute.
EVIDENTIARY RECORD & LEGAL FRAMEWORK:
EVIDENTIARY RECORD:
[31] As outlined above, the plaintiff did not file any evidence in response to the defendants’ motion to dismiss this action for delay.
[32] During the plaintiff's submission in reply to counsel for the defendants, he requested that I consider the affidavit material filed on the motion before Master Graham, where an order was granted setting aside the administrative dismissal of the action. Although that material was not formally before me, as requested by the plaintiff, I have considered that material and the reasons for decision of Master Graham before reaching the conclusion that the action must be dismissed.
[33] This action was instituted by the plaintiff seeking damages for alleged professional negligence on the part of the defendant lawyer who had represented him with respect to certain criminal charges.
[34] The action has its history starting on June 6, 2010 where the plaintiff drove his motor vehicle into the oncoming lane of traffic, while intoxicated by alcohol and drugs, forcing two vehicles off the road and causing a motor vehicle accident which resulted in injuries to occupants of another vehicle.
[35] The uncontradicted evidence is that following the plaintiff's failure to comply with a judicial interim release order, he was remanded in custody until trial. The plaintiff retained the defendant lawyer while he was in custody.
[36] The defendant lawyer negotiated a resolution of the charges against the plaintiff based on a guilty plea to impaired driving causing bodily harm. The plaintiff was sentenced pursuant to a joint submission and the plaintiff was given credit for actual time served in pretrial custody of 67 days as well as additional credit time such that he was released from custody at the time of his guilty plea. The joint submission was accepted by the court and the plaintiff was released from custody following his guilty plea on October 28, 2010.
[37] The plaintiff did not appeal the conviction and he commenced this action on October 26, 2012 seeking damages of $10.36 million.
[38] The plaintiff also instituted two other actions arising from the charges against him, namely against the police officers involved, the Crown Attorney and the Peel Regional Police Services Board.
[39] Pleadings were closed in this action prior to the end of 2013, however because of an amendment to the Rules of Civil Procedure which was in place at the time the action was commenced, the deadline for the plaintiff to set the action down for trial was extended from two years to five years.
[40] As the plaintiff took no steps to advance the action for five years, the Registrar dismissed the action by an order dated May 9, 2018, following which the plaintiff brought a motion under Rule 37.14 (1) (c) to set aside the administrative order.
[41] The plaintiff's motion came before Master Graham and in his reasons for decision of February 5, 2019, the Master set out a timetable as to how the action was to proceed and specifically noted that further delays in the progress of the action would not be tolerated.
[42] In compliance with the timetable established by Master Graham the defendant lawyer sent a Discovery Plan to the plaintiff on March 6, 2019 by way of mail and email, as well as an Affidavit of Documents on March 11, 2019.
[43] The plaintiff failed to sign and return the Discovery Plan or deliver his Affidavit of Documents, as required by the Master's order.
[44] Counsel for the defendants, on several occasions, notified the plaintiff that the defendants would be seeking an order dismissing the action for delay after the deadline to set the action down for trial had passed on January 31, 2020. The plaintiff failed to comply with any of the deadlines established by the Master, including the requirement that he set the matter down for trial by January 31, 2020.
LEGAL FRAMEWORK:
[45] The defendants move under Rule 24 to dismiss this action for delay.
[46] The test to be met on a motion seeking to have an action dismissed for delay under rule 24.01 is set out in North Toronto Chinese Alliance Church v. Gartner Lee Limited, 2012 ONCA 251, 12 CLR (4th) 1, at para. 11, leave to appeal refused, [2012] SCCA No. 248 (SCC) and was restated in Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at para. 12.
[47] The jurisprudence under rule 24.01 states that an order dismissing an action for delay under this rule is warranted where: (I) the default is intentional or contumelious; or (II) the delay is inordinate, inexcusable, and prejudicial to the defendants, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible.
[48] Under the first situation the case law provides that the default is intentional or contumelious where there is (a) no reasonable explanation for the delay/default and (b) there is an element of disrespect to the court, usually involving a breach of one or more court orders: Langenecker v.Sauve, 2011 ONCA 803, at para. 6; Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd, 2021 ONSC 1278 at paras. 79 – 85.
[49] As to the alternate second circumstance warranting dismissal of an action for delay, this is engaged where the delay is inordinate, inexcusable, and prejudicial to the defendants, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible. Inordinance is measured "by reference to the length of time from the commencement of the proceeding to the motion to dismiss": Langenecker, at para 8; Ticchiarelli, at para 15.
[50] A delay is inexcusable where there is no "reasonable and cogent" explanation for it: Langenecker, at paras 9 – 10; Ticchiarelli, at para 16.
[51] There is a presumption of prejudice "inherent in long delays" that increases with the length of delay: Langenecker , at para 11.
[52] The moving defendant bears the ultimate burden on a Rule 24.01 motion; however the plaintiff bears an evidentiary burden to: (I) provide a reasonable explanation for the delay; and (II) rebut the presumption of prejudice arising from the delay: Langenecker, at paras 10 – 12;Ticchiarelli at paras 27 – 29.
[53] As a rule, until a credible excuse is made out for the delay, the natural inference would be that it is inexcusable and that the defendants are likely to be seriously prejudiced by the delay: Saikaley v. Commonwealth Insurance Co. et.al., 1978 CanLII 1575 (ON SC), 21 OR (2d) 629, at 633.
[54] It is the primary responsibility of the plaintiff to move in action along: the party who commences a proceeding bears the primary responsibilities for his progress and must move the litigation forward: Faris v. Eftimovski, 2013 ONCA 360; Wellwood v. Ontario Provincial Police, 2010 ONCA 386.
[55] Where litigation is not driven solely by documentary evidence, a fair trial may not be possible due to memory lapses and a witness' inability to recall statements and observations where considerable time has passed between the events in question and a trial: Wallace v. Create's Marine Sales Ltd., 2014 ONCA 671.
[56] An order dismissing an action is a severe remedy, especially in an action involving a self-represented party, however the prejudice to the defendants cannot be ignored. In the Court of Appeal decision in Langenecker v. Sauve, 2011 ONCA 803 at para. 3, Doherty JA observed:
This patient reports a recurrent erosion flareup the last four days in the left eye. Since then he has needed to rest his eyes with keeping them closed for extended durations and to reduce screen time use. At today’s eye examination, the eyes looked to be improved but they may still flareup unexpectedly.
[57] In addition to the authority contained in Rule 24, the court also has the inherent jurisdiction to prevent an abuse of its own process: Marché D'Alimentation Denis Theriault, 2007 ONCA 695 . Lengthy and unexplained delay may amount to an abuse of the court's process. The interest of litigants involved in the civil justice system in timely justice is obvious. Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness: Marché, at para 24 – 25.
[58] The Ontario Court of Appeal in Wallace stated:
There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandated it: Wallace at para 22.
[59] In addition to the jurisdiction derived from Rule 24 and the courts inherent jurisdiction to manage its own process, Rule 60.12 also provides authority to the court to dismiss an action for the plaintiff's failure to comply with an interlocutory order.
ANALYSIS:
[60] Considering the defendants' motion within the context of Rule 24, and the disjunctive branches of the established test to determine whether an action should be dismissed for delay, I have concluded that the plaintiff has been both intentional and contumelious in his delay as he failed to comply with the timeline imposed by a court order. Master Graham granted the plaintiff a final opportunity to move his case forward, however he failed to adhere to the timetable and has offered no explanation whatsoever for his failure to do so and the breach of the Master’s order.
[61] Even if the plaintiff’s default was not intentional and contumelious, I have concluded that the delay in the progress of this action, which solely rests with the plaintiff, is inexcusable in that he is failed to take any steps towards advancing the action, including the delivery of his affidavit of documents and scheduling examinations for discovery. No evidence whatsoever has been offered to explain the plaintiff's delay and as such it is reasonable to draw the natural inference that the delay is in inexcusable.
[62] This action is not solely a case relying on documents. The parties' recollections and memories of discussions and events as well as observations will be critical to the fair conduct of a trial. Given the lengthy passage of time and delay, I find that the delay is inexcusable and that the conduct of a fair trial is significantly at risk as a result of the delay.
[63] This action has been outstanding for eight years and the events giving rise to the action occurred more than 10 years ago and the plaintiff has made no attempt to proceed with the action.
[64] Furthermore, the plaintiff benefited from the amendment to the Rules of Civil Procedure whereby rather than being required to set his action down for trial within two years following the close of pleadings, the rule change allowed him five years to do so and by the order of Master Graham setting aside the administrative dismissal of the action, the plaintiff was granted a further three years to set the action down for trial and yet he has failed to comply with a single deadline whether under the Rules of Civil Procedure or the order of Master Graham.
[65] Furthermore, considering this motion within the context of the court's inherent jurisdiction to control its own process, the record presented demonstrates more than sufficient evidence for the court to conclude that this action must be dismissed for delay. There has been no attempt on the part of the plaintiff to move this action forward and allow for a timely resolution of the dispute. To the contrary, the action has been hanging over the defendants' head for over eight years.
[66] As was discussed in Marché, I have concluded that the way the plaintiff has conducted this litigation constitutes an abuse of the court's process. Clearly the strong public interest in promoting the timely resolution of disputes in our civil justice system is engaged in the circumstances of this case and as was noted in Wallace: "enough is enough".
[67] The plaintiff has been afforded every possible and reasonable indulgence and accommodation to move this action forward and he has failed to do so. Similarly, with respect to the present motion, again, the plaintiff was given all reasonable opportunity to respond to the motion by the filing of a record of relevant evidence, however without any explanation, he failed to do so.
[68] Thus, based in the court's inherent jurisdiction to eliminate an abuse of process , the plaintiff's action must be dismissed as well.
CONCLUSION:
[69] For the reasons expressed, the defendants' motion is granted and in turn the plaintiff's action is dismissed.
[70] Counsel for the defendants shall serve and file submissions as to costs both with respect to the present motion and the action. The submissions shall be no longer than four pages, plus a bill of costs. Those submissions shall be served and filed within 20 days from the date of release of these reasons. The plaintiff shall serve and file responding submissions as to costs of a similar length within 20 days thereafter. There will be no reply submissions filed without leave.
Daley, J.
Released: April 13, 2021
Appendix A
December 1,2020
Via video conference
Dean Heffernan (deanheffernan@gmail.com) James Bennett (jbennett@kw-law.com)
(1) This matter came before the court today as a motion by the defendant seeking an order dismissing the plaintiff's action for delay.
(2) The motion was scheduled to be argued virtually over the Zoom platform.
(3) I was advised by the court administrative staff late in the afternoon of November 30 that the plaintiff had contacted the court indicating he could not participate in a Zoom hearing for this motion due to certain disabilities.
(4) On the return of the defendant's motion, I directed that the plaintiff participate in the hearing through Zoom, however only through the audio function provided by that platform. Counsel for the defendant appeared both on audio and video over Zoom.
(5) The plaintiff made a preliminary objection with respect to the motion on the basis that he stated it was not served properly in accordance with the Rules of Civil Procedure in that inadequate notice was given to him.
(6) As the plaintiff had not filed any responding materials, I determined that the matter must be adjourned on terms.
(7) Given that the matter was being adjourned, the plaintiff did not take issue with the service of the motion material any further.
(8) The plaintiff advised that he had informed the court staff on the day prior to the return of this motion that he required medical accommodation due to limitations with his vision which prevented him from properly participating in this motion by Zoom.
(9) As I informed the plaintiff, while his concern regarding attendance on a Zoom hearing was brought to my attention, I was not provided with any other information, including any medical evidence relating to his disability or limitations. Further, as I explained to the plaintiff, it would be most unusual for the court staff to provide such information to me in advance of the motion which had not been served upon counsel opposite.
(10) Recognizing that the plaintiff may have certain disabilities that may require specific accommodation related to the conduct of the hearing of this motion over Zoom, I directed that the plaintiff provide a medical report from his treating ophthalmologist as to his vision limitations and disabilities in participating in a Zoom hearing.
(11)I further directed that the plaintiff provide such a medical report from his treating ophthalmologist in those terms on or before December 18, 2020. That report shall be sent to counsel for the defendant and a copy submitted to the court as well within that timeframe.
(12) The plaintiff's position originally was that he wished to have the defendant's motion argued in person in the Brampton Courthouse.
(13) As I advised the plaintiff and counsel for the defendant, I would not order anyone involved in this matter to appear in person in the Brampton Courthouse if they had any concerns whatsoever as to their personal safety and that of their family given the current Covid-19 pandemic and its status in particular in Brampton.
(14) Following receipt of the aforementioned medical report from the plaintiff's ophthalmologist as to any limitations he has in participating in a virtual hearing of the defendant's motion over Zoom, if I determine it is necessary I will convene a further teleconference with the plaintiff and defence counsel to receive submissions as to the proper mode to be used to hear this motion.
(15) Failing receipt of the required medical opinion, the defendant's motion shall proceed virtually by way of Zoom. The plaintiff confirmed that he has a computer equipped with a camera which is capable of running Zoom.
(16)In the event that the plaintiff produces the required medical report from his ophthalmologist within the time required and that that report supports consideration of an accommodation being granted to the plaintiff, a hybrid hearing may be scheduled, whereby the plaintiff would attend at the Brampton Courthouse in person and counsel for the defendant would attend virtually via Zoom. Similarly, as I will remain seized of this matter, I would attend over Zoom as well. In the event such arrangements are put in place, given the myriad of concerns in the safe operation of the court rooms within the Brampton Courthouse, a police officer would be stationed within the court room in order to ensure that all health and safety protocols are complied with so as to protect those within the courtroom from any risk of contamination.
(17) The plaintiff also sought an indulgence from the court allowing him more time than provided for by the Rules of Civil Procedure to file his responding motion materials.
(18) Currently there is no medical evidence before the court as to the plaintiff's limitations that would give rise to a consideration of an accommodation whereby he would be provided with more time to serve and file his responding material on this motion. However, unless such medical evidence is provided by December 18, 2020, the plaintiff shall serve and file his responding motion material no later than January 11, 2021. (19)The plaintiff indicated that he had sent a letter to the court administration in November, 2020 enclosing certain medical documentation in support of his request for an accommodation, however that material was not made available to the court on the return of this motion. The plaintiff was directed to provide a copy of that letter and the enclosed material to the court and to counsel for the defendant. In the event that medical evidence was delivered and supported some accommodation, I would give further consideration to the deadline of January 11, 2021 with respect to the service and filing of the plaintiff's responding motion material, and if warranted would extend the time for delivery of the responding motion material.
(20) During the submissions regarding the adjournment of the pending motion, the plaintiff further advised that he is intending on bringing a motion to strike certain paragraphs of the affidavit material in support of the defendant's motion.
(21) The plaintiff has not served any motion seeking to strike portions of the defendant's affidavit evidence. In order to assist the court and counsel for the defendant, the plaintiff shall provide details as to the motion he intends on bringing including exact particulars as to the impugned paragraphs in the defendant's affidavit material. His letter providing those particulars shall be delivered to the defendant's solicitor and to the court within 10 days of this date.
(22) In the result, the defendant's motion is adjourned to a date to be set, following the determination of what accommodations may be required for the plaintiff. A further teleconference will be scheduled by me before setting the hearing date in order to discuss with the parties the mode of the hearing and to clarify all the further scheduling particulars with them.
(23) Costs of today's attendance are reserved to the conclusion of the defendant's motion.
(24) All correspondence, including the delivery of the medical reports mentioned herein shall be directed to my administrative assistant Kimberly Williams at kimberly.williams@ontario.ca.
Daley J.
Dated: December 2, 2020
Appendix B
December 14, 2020
In Chambers
Dean Heffernan (deanheffernan@gmail.com) James Bennett (jbennett@kw-law.com)
[1] The Plaintiff submitted a letter dated December 13, 2020 with an attachment, namely an email from him to counsel for the Defendant dated April 26, 2019 setting out the details of his intended motion to strike certain portions of the Affidavit of Nicole Kimberly Wozniak of November 13, 2020.
[2] The Defendant's motion to dismiss the Plaintiff's action for delay will be scheduled, however before the return date of that motion, a motion must be scheduled to allow the Plaintiff to bring his proposed motion.
[3] The Defendant's motion will be argued virtually by Zoom, or alternatively in a teleconference call with a court reporter, in the event the Plaintiff provides sufficient evidence as to his disabilities, such that I determine that a Zoom video conference cannot proceed.
[4] The Plaintiff shall serve his motion within 20 days from the date of the release of this endorsement, such service to be affected upon counsel for the Defendant by email.
[5] The Plaintiff's motion shall not set a return date for the hearing of his motion as that will be determined during a teleconference meeting with counsel and the Plaintiff in order to establish a mutually convenient date. Thus the return date on the notice of motion shall simply be left blank.
[6] The Defendant shall serve and file any responding motion record upon the Plaintiff by email within 20 days following receipt of the Plaintiff’s motion.
[7] Both the Plaintiff and the Defendant shall submit their motion records to my administrative assistant Kim Williams at kimberly.williams@ontario.ca. Upon receipt of the motion materials from both sides, a teleconference will be arranged in order to schedule a return date.
Daley J.
Dated: December 15, 2020
Appendix C
January 4, 2021
In Chambers
Dean Heffernan (deanheffernan@gmail.com) James Bennett (jbennett@kw-law.com)
Mr. Heffernan sent a letter to the court and to counsel for the defendant dated December 18, 2020 in which he attached 2 medical notes from the office of Dr. David S. Rootman dated November 26, 2020 and December 10, 2020 respectively outlining his current vision diagnosis and limitations.
In his letter, Mr. Heffernan outlines other alleged limitations relating to his ability to participate in an in-person attendance at the courthouse on the hearing of the motions, including his concerns with respect to the presence of a police officer within a court room.
I have reconsidered how the parties' motions can best be argued before the court having regard to health concerns relating to the Covid-19 exposure risks in Brampton and as well the vision limitations experienced by Mr. Heffernan.
The Covid-19 exposure risks have increased significantly over the last several weeks in Peel Region and as such I have concluded that an in-person attendance at the Brampton Courthouse by any party in this proceeding for the argument of the pending motions is the least safe procedure that could be followed.
Given the medical evidence submitted by Mr. Heffernan regarding his vision limitations, I have further concluded that the pending motions will be argued by way of a teleconference as opposed to a Zoom video conference. A previous teleconference/Zoom conference was conducted where Mr. Heffernan only attended via the audio function in the Zoom conference platform. That process worked very successfully and as such I have concluded that there is no need for the court or the parties and counsel to use the Zoom platform.
The plaintiff wishes to bring a motion to strike certain portions of the affidavit evidence submitted on behalf of the defendant. In my endorsement of December 14, 2020, I set out the details as to how the motions are to be scheduled.
As a result of the evidence submitted by the plaintiff regarding his vision limitations and as a result of the increasing risk associated with the Covid-19 virus, I have concluded that the safest and most efficient way in which these motions can be dealt with is by way of a teleconference, with both motions scheduled for the same return date.
The plaintiff's motion to strike certain aspects of the defendant's affidavit evidence will be argued first, and immediately following the ruling with respect to that motion, the defendant's motion shall proceed.
The teleconference motions will be conducted with a reporter/monitor such that a record will be maintained of the argument of these motions.
As per the terms of my endorsement of December 14, 2020 at paragraph (7) both parties are to submit their motion records to my administrative assistant by email and once those records have been filed within the timelines established, a return date will be scheduled for both motions on the same day.
Daley J.
Dated: January 4, 2021
COURT FILE NO.: CV-12-5720-00
DATE: 2021 04 13
ONTARIO
SUPERIOR COURT OF JUSTICE
DEAN HEFFERNAN
Plaintiff
- and -
JOHN H. KIEFFER PROFESSIONAL CORPORATION, JOHN H. KIEFFER, Barrister and Solicitor
Defendants
REASONS FOR DECISION
ON MOTION UNDER RULE 24.01
Daley, J.
Released: April 13, 2021