COURT FILE NO.: CV-18-1894
DATE: 20210118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adam Drew and Evelyn Drew, Plaintiffs/Moving Parties
AND:
Aaron Topple o/a “Future Perfect Construction”,
Future Perfect Construction Inc. Defendants/Responding Parties
BEFORE: Justice Susan J Woodley
COUNSEL: Tanya Walker and Rishi Nageshar, Counsel, for the Moving Party Plaintiffs
Aaron Topple, unrepresented, appearing for all Responding Defendants.
HEARD: January 14, 2021
RELEASED: January 18, 2021
ENDORSEMENT
OVERVIEW
[1] This motion, brought by the Plaintiffs, seeks an Order striking the Defence and dismissing the Counterclaim of the Defendants, Aaron Topple o/a “Future Perfect Construction” (the “Sole Proprietorship”) and Future Perfect Construction Inc. (“FPC Inc.”) (hereinafter referred to collectively as “the Contractors”).
[2] The Plaintiffs state that the relief is warranted due to the Contractors failure to comply with three Orders of the Court dated December 13, 2019; December 19, 2019, and October 6, 2020. The Orders in question, more particularly, require the Contractors to: (i) appoint counsel for the corporation or obtain leave to self-represent the corporation (Orders dated December 13, 2019, and October 6, 2020); and (ii) comply with an undertaking schedule set by the pre-trial Judge within the pre-trial report (December 19, 2019).
FACTS
[3] On or about September 18, 2017, the Plaintiffs and Future Perfect Construction entered into a custom home construction contract with respect to a new build on that property municipally located at 4894 Old Brock Road, Claremont, Ontario (the “Property”).
[4] The Plaintiffs allege that the Contractors abandoned or terminated the Contract in early June 2018.
[5] The Plaintiffs retained Walker Law and commenced an action by Statement of Claim issued on July 16, 2018 seeking damages in the amount of $400,000.
[6] The Defendants retained Polak, McKay and Hawkshaw, and more particularly Cameron Murkar, and filed a Statement of Defence.
[7] The examination for discovery of Aaron Topple on behalf of all of the Contractors was completed on January 16, 2019.
[8] On February 25, 2019, the Plaintiffs served the Contractors with a copy of their Undertakings Charts. The Contractors provided their answers to the undertakings on July 19, 2019.
[9] On October 10, 2019, the Plaintiffs wrote to the Contractors requesting answers to those undertakings that they claimed had not been fully or properly answered and the Contractors provided further responses to the queries.
[10] After several further exchanges of information and requests for information arising from the undertakings, the parties reached an impasse with respect to the Plaintiffs’ satisfaction of the undertakings by the Contractors.
[11] On December 13, 2019, the Contractors’ lawyer Mr. Murkar, removed himself as lawyer of record. Justice O’Connell issued a standard removal Order with the proviso that Aaron Topple could represent the corporation at the upcoming pre-trial, which was scheduled for December 19, 2019.
[12] On December 19, 2019, the Plaintiffs, their lawyers Walker Law, and the Defendant Aaron Topple, unrepresented on behalf of the Contractors, attended before Justice Casullo, for the pre-trial of the matter.
[13] The Plaintiffs submit that the “Order” of Justice Casullo dated December 19, 2019, required the Contractors to comply with undertakings within a certain time period. The “Order” referenced by the Plaintiffs is that within the body of the pre-trial report (required to be completed by the Pre-trial judge) wherein there are certain scheduling timelines that may be inserted. In the present case, the following was inserted: (i) the date for all undertakings to be answered (January 30, 2020); (ii) the date for further discovery arising therefrom to be completed (March 31, 2020); and (iii) the date for any motion arising from the answers or follow up to be heard (April 30, 2020).
[14] On December 24, 2019, the Plaintiffs contacted Aaron Topple to remind him of the outstanding undertakings.
[15] On January 8, 2020, Aaron Topple provided additional answers to the outstanding undertakings.
[16] On January 13, 2020 the Plaintiffs contacted Aaron Topple: (i) to determine whether he would accept service of all further court documents via a certain email address; (ii) to specifically advise of the manner in which Aaron Topple’s further answers were deficient, and (iii) to enquire whether Aaron Topple (and his companies) intended to retain a lawyer.
[17] On February 4, 2020, the parties appeared before Justice Edwards via teleconference for trial scheduling. His Honour ordered the parties to attend a second trial scheduling conference in June 2020.
[18] On March 13, 2020, the Plaintiffs attempted to file a motion regarding outstanding undertakings and the appointment of a lawyer. However, due to the COVID-19 pandemic and court closures, the motion materials were not accepted by the Court.
[19] There is no information that the Plaintiffs ever sought to re-file the undertakings motion nor has there been any judicial determination regarding the undertakings.
[20] On March 17, 2020, the parties exchanged further correspondence.
[21] By email dated April 15, 2020, Aaron Topple advised that he had attempted to file a motion to obtain permission to represent his corporation without a lawyer but due to the pandemic only emergency motions were being accepted. Aaron Topple also provided further information to satisfy those undertakings the Plaintiffs alleged remained unanswered or incompletely answered.
[22] On April 20, 2020 Aaron Topple advised that he was “working on the motions [sic] for self-representation”.
[23] Further correspondence was exchanged between the parties regarding the undertakings.
[24] On October 6, 2020, the Plaintiffs filed a motion to strike the Statement of Defence and dismiss the Counterclaim of the Defendants for non-compliance with Justice O’Connell’s December 13, 2019 Order and Justice Casullo’s December 19, 2019 “Order” made within the context of the pre-trial report.
[25] The motion was read by Justice Verner on the same date that it was filed, being October 6, 2020. The Contractors had not filed any material, which is understandable, as they would not have had any notice of the hearing date.
[26] After reviewing the material filed by the Plaintiffs, to strike the defence and dismiss the counterclaim, Justice Verner noted: “The defendants in the case at bar have not flagrantly disregarded the court orders. In fact, evidence suggests that they have attempted to comply with one and are financially unable to comply with the other. In these circumstances, I am not prepared to strike the defence, nor am I prepared to permit the moving party to apply without notice, to strike the defence if the defendants fail to serve and file the requested material within 30 days”.
[27] Justice Verner then provided for service of her endorsement upon the defendants by email and ordered that the Defendants:
i. Shall provide answers to their outstanding undertakings within 30 days following service of this Order; and
ii. The Defendant, Future Perfect Construction Inc., shall appoint a lawyer of record or bring a motion to have someone other than a lawyer represent Future Perfect Construction within 30 days following service of this Order.
iii. In the event the Defendants do not comply with this order, the moving party may apply with notice to strike out the Statement of Defence and to dismiss their counterclaim.
[28] The Contractors (via Aaron Topple) were served with Justice Verner’s Order on October 19, 2020.
[29] To date, the Contractors have not appointed a lawyer nor has any non-lawyer been granted permission to represent the corporation. Further, no motion has determined whether any undertakings remain outstanding.
[30] On December 7, 2020, the Plaintiffs served an Amended Notice of Motion, to strike the statement of defence and to dismiss the counterclaim amongst other procedural matters.
[31] The parties appeared before me to argue the Plaintiffs’ Motion to Strike, on January 14, 2021, by Zoom hearing.
[32] The Plaintiffs filed a Motion Record with exhibits (two volumes); a Factum; and a draft Order.
[33] The Defendant Aaron Topple was unrepresented and filed no response. Aaron Topple did appear at the hearing and provided some evidence to the Court that he has attempted to answer the undertakings and is unable to afford to retain a lawyer due to the negative effect of the pandemic on his construction business.
ISSUES
[34] The issues are as follows:
i. Should the Court grant the Plaintiffs’ Motion and strike the Contractors’ Defence and dismiss the Counterclaim? or
ii. Are there any other remedies short of striking/dismissal that would provide a just and effective disposition of the Motion?
THE LAW AND ANALYSIS
[35] The Plaintiffs claim that since the close of pleadings in September of 2018, the Defendants have shown a wanton disregard for the Rules of Civil Procedure (the “Rules”) and the Orders made by this Court. The Plaintiffs’ claim that the particulars of this conduct are as follows:
i. Pursuant to Rules 15.01(2), 15.04(6) and 15.04(7) and Justice O’Connell’s December 13, 2019 Order, the Contractors (FPC Inc.) were to appoint a lawyer of record or obtain leave to have someone other than a lawyer represent FPC Inc. on or by January 13, 2020. To date, no lawyer has been retained, nor has alternative relief been sought;
ii. Pursuant to rule 31.07(1), a party examined for discovery fails to answer a question if: (i) a question is taken under advisement, but no answer is provided within 60 days after the response; or the party undertakes to answer the question, but no answer is provided within 60 days after the response. The Contractors were examined on January 16, 2019 and, accordingly, their answers were due on March 18, 2019. Despite their non- compliance with the Rules, on December 19, 2019, Justice Casullo afforded the Contractors the opportunity to submit their undertakings at a later date but on a firm deadline of January 30, 2020 which has not been met; and
iii. Justice Verner’s Order served on the Contractors on October 19, 2020, required compliance by November 18, 2020. To date, the Contractors have failed to comply with the terms of the Order.
[36] Where a party fails to comply with an interlocutory order or the Rules, the Court has the authority to dismiss the breaching party’s proceedings and strike their Defence; Rules of Civil Procedure, R.R.O. 1990, O. Reg.194 (the “Rules”), Rules 2.01(b), 31.07(1) and (3), 34.15, and 60.12.
[37] The Court has deemed this remedy necessary when a litigant shows a wanton disregard for interlocutory orders and the Rules as a litigant should not be permitted to trivialize the Rules and judicial orders through repeated non-compliance; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para 19.
[38] The Plaintiffs submit that proportionality is required to ensure that disputes are resolved on their merits. However, as noted by the Court of Appeal for Ontario “at some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits”; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para 33.
[39] The Plaintiffs submit that the Contractors, in the present case, have shown a “wanton disregard for the Rules and the Orders of this Court” such that they have lost the right to have the dispute decided on the merits.
[40] Despite the earnest submissions of the Plaintiffs’ counsel, I do not view the Contractors as having reached this point. Instead, having reviewed all materials filed, I find that the Plaintiffs have overreached.
[41] Firstly, Justice O’Connell’s Order dated December 13, 2019, is a standard form Order obtained by Defendants’ previous lawyer, Mr. Murkar, upon his removal as lawyer of record. There was ample evidence that Aaron Topple was financially unable to retain a lawyer and unable to file a motion seeking his appointment (due to his lack of lawyer and the pandemic). Simple cooperation through the preparation of a consent Order appointing Aaron Topple, to be filed with the Court would have easily resolved this issue.
[42] Secondly, Justice Casullo’s “Order” dated December 19, 2019, oft repeated as being breached by the Defendants was in fact a timetable found within the body of the pre-trial report. The “Order” was neither issued nor entered. To the extent that there was any breach of the “Order”, such breach would need to be proven as the Contractors were of the view that they had answered all undertakings to the best of their ability, appeared to have no follow up questions, and did not seek a motion regarding the undertakings.
[43] Lastly, Justice Verner’s Order dated October 6, 2020, was not a “last resort” Order as repeatedly referenced by the Plaintiffs. Justice Verner noted that the Defendants had attempted to comply with one Order (undertakings) and were financially unable to comply with the other (appointment of lawyer). Justice Verner provided an extension to comply with the December 2019 Orders, which as noted above, could have been achieved simply through the filing of a consent Order. As for the allegation of breach of the Casullo “Order”, breach has not been proven.
[44] The central question on a motion to strike or dismiss a pleading for non-compliance with court orders and the Rules is whether the responding parties are deserving of a lesser remedy. The Court considers whether it is being asked to end an action due to trivial or technical non-compliance or if continuing the action is no longer viable and appropriate. In conducting this analysis, the Court is required to balance the interest of having a matter heard on its merits while also allowing flexibility for unexpected intervening circumstances; Starland Contracting Inc. v 1581518 Ontario Ltd., [2009] O.J. No. 2480 at para 28.
In the present case, the Plaintiffs argued that the Contractors’ delays are not the result of unusual circumstances. I cannot accept this argument.
[45] We are currently in the midst of a global pandemic. This reality cannot be ignored and certainly qualifies as “unusual circumstances”. The pandemic has necessarily prolonged and delayed court proceedings for the safety of the public, the judiciary, and the court staff. In the present case, Aaron Topple advised the court that his source of income completely collapsed as a result of the pandemic and he has been unable to afford to retain a lawyer. The evidence filed by the Plaintiffs established that Aaron Topple was unable to file the necessary motion as it was not an emergency as per the pandemic protocols of the Superior Court.
[46] I reject the Plaintiffs’ claim that the Contractors have continuously and purposefully delayed the proceedings to prevent a full adjudication of this matter on its merits. Much of the delay has been caused by or has resulted due to the pandemic and/or arguments relating to the sufficiency of the answers provided to the undertakings. A proportionate and balanced approach is to provide a lesser remedy that will move the matter forward while allowing a determination on the merits.
[47] The Contractors’ failure to appoint a lawyer and provide answers to undertakings can and will be remedied. Retrieval of third-party documents can be obtained by an executed authorization and direction or by Court Order.
[48] In my view, striking the defence and dismissing the counterclaim would constitute severe, disproportionate, and unnecessary relief.
[49] The parties are entitled to have the matter determined on the merits. As such, lesser Orders shall be made that will allow the Plaintiffs to move forward with their claim which shall be determined on the merits.
DISPOSTION AND ORDER
Appointment of a Representative for the Corporation
[50] Although Aaron Topple did not file material, there was ample material in the Plaintiffs’ record to allow issuance of this Rule 15.04 (5) Order, and it shall so issue.
[51] The Defendant, Future Perfect Construction Inc., be and is hereby granted leave to be represented by a person other than a lawyer, namely Aaron Topple.
Compliance with Undertakings
[52] By their motion materials, the Plaintiffs claim that ten undertakings remain unanswered and of those ten, four require third party information (CIBC, TD, Co-Construct, and ESA) to satisfy the undertaking.
[53] While this is not an undertakings motion, it is my view that such a motion would have been more appropriate. Based on my review of the Plaintiffs’ material, five of the outstanding undertakings appear to have been fully answered (best efforts provided) and five remaining outstanding.
[54] As for the five outstanding undertakings, four require third party disclosure, (undertakings #8, #9, #23, and #29). The information should already have been provided to Aaron Topple by the third parties. As Aaron Topple failed to obtain the information from the third parties, despite his stated efforts, the Plaintiffs shall be entitled to obtain the information directly from the third parties.
[55] In this regard, Aaron Topple shall execute four separate authorizations for each of the third parties (CIBC, TD Bank, Co-Construct and ESA) who shall be directed to release the information and documents required to satisfy undertakings #8, #9, #23, and # 29, said information and documents to delivered by the third parties directly to the Plaintiffs, who shall provide a copy to the Defendants, with 2 days of receipt. The authorizations shall be prepared by the Plaintiffs, emailed to Aaron Topple for signature on behalf of all Defendants, and returned to the Plaintiffs within five days of receipt by Aaron Topple, failing which an Order shall issue upon request of the Plaintiffs, directed to be filed to my attention, directing the third parties to release the requested information to the Plaintiffs, on the terms as noted without requiring the signature of Aaron Topple.
[56] As for undertaking #13, that Aaron Topple provide the addresses for the homes or properties that he claims that Future Perfect Construction and/or Aaron Topple did new builds on, Aaron Topple shall provide the property address and details of all such alleged new builds to the Plaintiffs, in writing, within 30 days, failing which the Plaintiffs shall be at liberty to bring an undertakings/refusal motions or such other proportionate relief, and otherwise shall be at liberty to allege at trial that a negative inference should attach to the Defendants’ failure to provide the requested information.
[57] The Parties are granted an extension to April 30, 2021, to bring any undertaking/refusal motion if they deem such motion necessary.
[58] Upon the courthouse reopening to the public, the Plaintiffs shall file with the Civil Motions Office a copy of all the material delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.
[59] Notwithstanding Rule 59.05, this Order is effective from the date it is made and is enforceable without any need for entry and filing. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.
[60] As the results of this Motion are mixed, the costs of the Motion are reserved to the trial judge.
Justice S. J. Woodley
COURT FILE NO.: CV-18-1894
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Adam Drew and Evelyn Drew
Plaintiffs/Moving Parties
AND:
Aaron Topple o/a “Future Perfect Construction”,
Future Perfect Construction Inc.
Defendants/Responding Parties
BEFORE: Justice Susan J. Woodley
COUNSEL: Tanya Walker and Rishi Nageshar, Counsel, for the Moving Party Plaintiffs
Aaron Topple, unrepresented, appearing for all Responding Defendants.
ENDORSEMENT
The Honourable Susan J. Woodley
DATE RELEASED: January 18, 2021