COURT FILE NO.: 00-CV-195388
DATE: 20210915
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: DIONNE RENEE FRANCIS Plaintiff
AND:
LEO A. SEYDEL LIMITED o/a CANADIAN TIRE ASSOCIATE STORE #126 Defendant
BEFORE: Mr. Justice Chalmers
COUNSEL: No one appearing for the Plaintiff
J. Goodman, for the Defendant
HEARD: September 13, 2021, in person
ENDORSEMENT
Overview
[1] This action arises from an incident which allegedly occurred at the Defendant’s premises on August 4, 1999. The Plaintiff alleges that while looking at bicycle parts in the Defendant’s store, a box fell from a shelf and struck her head, causing her to sustain personal injuries. The Statement of Claim was issued on August 10, 2000.
[2] In the over 20 years since the Statement of Claim was issued, this action has proceeded very slowly. On June 14, 2021, D. Wilson, J. ordered that the trial was to commence on September 13, 2021. The trial date was peremptory on both parties. When the trial was called this morning, the Plaintiff was not in attendance. The Defendant moved for an order pursuant to R. 52.01(2) dismissing the action.
[3] I am satisfied that the Plaintiff was aware that the trial was scheduled for September 13, 2021 and was peremptory on both parties. For the reasons set out below I allow the Defendant’s motion. The Plaintiff’s action is dismissed.
Background Facts
History of the Proceedings
[4] This action arises out of an event that occurred on August 4, 1999. This may be the oldest civil action in the Toronto Region.
[5] The Defendant filed the affidavit of Nicole Dowling dated September 10, 2021. She sets out the following chronology of this proceeding:
The Statement of Claim was issued on August 10, 2000;
On December 11, 2000, the Plaintiff delivered a Notice of Change of Solicitors, appointing the law firm of Raphael Partners LLP;
The Defendant served a Statement of Defence and Jury Notice dated February 8, 2002;
By order of Master Peterson dated September 4, 2002, Raphael Partners LLP were removed as the solicitors of record for the Plaintiff;
The Plaintiff was involved in an alleged police assault on November 24, 2000, and a motor vehicle accident on October 13, 2002. The Plaintiff commenced a further action; Court File No.: 01-CV-211355;
On January 29, 2003, the Defendant’s motion to dismiss the within action proceeded before Master Sedgwick. Neither the Plaintiff nor any solicitor or agent acting on her behalf attended. The action was dismissed, and the Plaintiff was ordered to pay the Defendant’s costs in the sum of $2,400.00 forthwith;
On July 7, 2004, the Plaintiff successfully brought a motion to strike paragraph 1 of the Order of Master Sedgwick which dismissed the within action. Costs of this motion were ordered payable by the Plaintiff to the Defendant, fixed at $700.00, in any event of the cause;
On November 1, 2004, the Defendant brought a motion to dismiss the Plaintiff’s action for failure to pay costs. Master Clark dismissed the motion, with costs payable by the Plaintiff to the Defendant in the sum of $1,000, if and when the action is disposed of. The two previous cost orders of $2,400 forthwith and $700, in any event of the cause, were ordered payable if and when the action is disposed of;
On February 28, 2005, Siegel, J. dismissed the Defendant’s appeal of the order of Master Clark;
The Examination for Discovery of the Plaintiff started on October 27, 2005 and continued on March 9, 2006. The Examination for Discovery of the Defendant took place on January 30, 2006;
The defence medical examinations were scheduled with Dr. Richard Hershberg, Psychiatrist, and Dr. Hugh Cameron, Orthopaedic Surgeon. The Plaintiff failed to confirm that she would attend the defence medical examinations, and the Defendant brought a motion to compel the Plaintiff’s attendance;
On June 23, 2008, Master Linton ordered the attendance of the Plaintiff at the proposed defence medical examinations and awarded costs payable by the Plaintiff to the Defendant in the amount of $1,700.00, in any event of the cause. Master Linton also ordered that the action bearing Court File No. 01-CV-211355, and the within action, be heard at the same time or one immediately after the other;
The Plaintiff failed to attend either of the defence medical examinations. The Defendant scheduled a motion to dismiss the action, returnable December 4, 2008. On December 4, 2008, Master Dash adjourned the Defendant’s motion for dismissal to allow for the Plaintiff’s counsel to be removed from the record;
On December 10, 2008, Master Dash ordered that the Plaintiff’s counsel, be removed as solicitor of record, and that the Plaintiff retain counsel or file a notice of intent to act in person within 30 days of service of the order;
The Plaintiff did not file a notice of intention to act in person or appoint counsel. On February 19, 2009, the Defendant brought a motion for an order dismissing the action for delay and for the breach of the order of Master Linton for her failure to attend the defence medical examinations;
On February 19, 2009, Master Dash ordered that the Plaintiff comply with the order of Master Linton, and that she pay cancellation fees of the defence medical examinations, and costs of the motion;
On March 6, 2009, the Plaintiff served a notice of motion to vary or set aside the orders of Master Linton and Master Dash, returnable May 14, 2009;
On May 12, 2009, the Plaintiff rescheduled the motion for July 23, 2009. On July 21, 2009, the Plaintiff rescheduled her motion to November 12, 2009. The Plaintiff did not file materials on time, and the motion was not on the court list for November 12, 2009;
The Plaintiff did not attend the defence medical examination scheduled for February 12, 2010. The Defendant brought a motion returnable April 1, 2010, for an order dismissing the Plaintiff’s action for breaching the orders of Master Linton and Master Dash. The Plaintiff stated that she was not comfortable being examined by male physicians. Master Brott adjourned the motion and instituted a timeline for the motion to vary the order, with all dates peremptory on the Plaintiff. The Plaintiff failed to comply with the timelines;
On September 3, 2010, the Plaintiff’s motion to vary or set aside the orders of Master Linton and Master Dash was to be heard by Sanderson, J. The motion was adjourned to allow counsel to serve and file facta;
On October 5, 2010, the Defendant’s counsel wrote to Joseph Kary, the lawyer who had been assisting the Plaintiff for the purpose of her appeals of the Orders of Master Linton and Master Dash, advising that defence medical examinations had been scheduled for January 6, 2011 and December 13, 2011, with female physicians. The Plaintiff was requested to confirm her attendance. The Plaintiff did not confirm her attendance until the eve of the scheduled examination on January 6, 2011, at which point the examination had already been cancelled;
On March 28, 2011, the Plaintiff attended a rescheduled appointment with Dr. Boynton. In her report dated March 29, 2011, Dr. Boynton noted that she felt uncomfortable with the Plaintiff’s behaviour, and she was not prepared to proceed with the examination;
On April 12, 2011, Master Dash stayed the action without prejudice to either party to lift the stay. Master Dash indicated to defence counsel in his oral reasons, to schedule defence medication examinations with Dr. Boynton or Dr. Cameron;
The Plaintiff did not attend the appointment with Dr. Cameron, scheduled for September 6, 2011;
On December 8, 2011, the Defendant’s motion to lift the stay and dismiss the within action was adjourned by Master Dash to allow for the Plaintiff’s motion with Sanderson, J. to vary or set aside the orders of Master Dash and Master Linton to proceed;
On February 6, 2012, Sanderson, J. ordered the Plaintiff to attend a defence medical examination with a female orthopaedic surgeon;
On March 23, 2012, Master Dash lifted the stay of the action. He ordered that the Plaintiff attend at an examination with Dr. Rajka Soric, a female physiatrist, on May 31, 2012;
On May 4, 2012, Master Dash made an order regarding productions and mediation. The order included provisions as follows:
a) Mr. Kary was to provide all letters of request to third parties, follow-up letters, and responses by May 25, 2012;
b) The Plaintiff was to attend a further Examination for Discovery on her answers to undertakings and on documentation provided since her last examination, to be conducted no later than October 31, 2012;
c) Any undertakings arising out of the follow-up examination were to be answered within 60 days of the examination;
d) Mediation was to be conducted no later than April 30, 2013; and
e) The Plaintiff was to serve and file her notice of intention to act in person or notice of appointment of lawyer by May 18, 2012;
On May 23, 2012, the Plaintiff wrote to the Defendant’s counsel and advised that she would not be attending the defence medical examination with Dr. Soric on May 31, 2012;
On October 11, 2012, the Plaintiff delivered a Notice of Change of Solicitors appointing Andrew Kerr as solicitor of record;
On October 12, 2012, a further motion was heard by Master Dash seeking the dismissal of this action, or in the alternative, to seek further relief which included contempt orders. The following was among the items ordered by Master Dash:
a) Payment of $400 in the cause for the cancellation of Dr. Soric’s appointment;
b) Attendance at an assessment with Dr. Soric by January 17, 2013;
c) Production of relevant documentation by Mr. Kerr;
d) A timeline with respect to Rule 30.10 motions, further discoveries, and mediation;
e) Mediation on January 6, 2014; and
f) Costs in the amount of $2,000, in any event of the cause.
On January 17, 2013, the Plaintiff attended a defence medical examination with Dr. Soric. Dr. Soric wrote to the Defendant’s counsel on February 1, 2013 and stated that the Plaintiff was “extremely defensive and at times very inappropriate and insulting” during the assessment. Dr. Soric was unable to complete the examination of the Plaintiff;
On May 28, 2013, Laxton Glass LLP served a Notice of Change of Solicitors on the Plaintiff’s counsel, Mr. Kerr (Tab 29: Notice of Change of Solicitors dated May 28, 2013);
A continued Examination for Discovery of the Plaintiff took place on July 4, 2013;
The mediation took place on January 6, 2014;
On September 29, 2015, Master Dash ordered that the companion action bearing Court File No. 01-CV-211355 be dismissed for delay;
On October 19, 2016, this matter was set down for trial. The trial was to proceed for 20 days commencing on October 9, 2018;
A pre-trial conference proceeded before Gans, J. on May 18, 2018;
A judicial case conference proceeded on October 3, 2018 with Justice Firestone. The Plaintiff took the position that in the interest of justice, the Defendant should pay her legal costs to take this matter to trial. Justice Firestone scheduled the motion and vacated the trial date of October 9, 2018;
The Plaintiff’s motion for the payment of interim costs proceeded on May 28, 2019 and June 28, 2019 before Justice Dow. In his decision of August 27, 2019, Justice Dow dismissed the Plaintiff’s motion with costs payable to the Defendant in the amount of $2,000;
A judicial teleconference proceeded before D. Wilson, J. on June 22, 2020. This matter was subsequently set down for a 4-week jury trial commencing May 3, 2021;
Jury trials were not available in Toronto region as of May 3, 2021 and the trial was adjourned;
On June 14, 2021, D. Wilson, J. rescheduled the trial for September 13, 2021. The trial was marked peremptory to both parties;
On July 26, 2021, Ramsay, J. officially removed Andrew Kerr as counsel of record for the Plaintiff.
A trial management conference proceeded on August 30, 2021 before D. Wilson, J. The Plaintiff failed to participate. Justice Wilson confirmed that the trial was fixed to commence on September 13, 2021, on a peremptory basis.
Plaintiff’s Knowledge of the Trial Date
[6] The Plaintiff has not provided her home address to the Defendant or the court.
[7] Joseph Kary assisted the Plaintiff for the purpose of appealing the orders of Master Linton and Master Dash. His office address is 90A Isabella Street, Toronto. The pre-trial conference with Gans, J. on May 18, 2018 was recorded. In response to Gans, J.’s question of how to contact her, the Plaintiff advised that her address was 90A Isabella Street, Toronto. She also stated that she had two e-mail addresses; insolidary@icloud.com; and mycity@torontomail.com. The advised Plaintiff that the iCloud address may not be working.
[8] The Defendant argues that the mycity@torontomail.com e-mail address has been used by the Plaintiff throughout this action and that the e-mails sent to this address came to the Plaintiff’s attention. The Defendant states that the Plaintiff ran for mayor in 2014. The e-mail published on the City of Toronto website is mycity@torontomail.com. On February 7, 2019, the Plaintiff used this address to correspond with counsel for the Defendant with respect to the trial scheduling court.
[9] On June 14, 2021, Ms. Kidd, a judicial assistant, e-mailed the parties with D. Wilson J.’s endorsement advising the parties of the trial date of September 13, 2021.
[10] In her endorsement dated June 16, 2021, Ramsay, J. noted that the Plaintiff had sent several e-mails to her assistant. In that endorsement, Ramsay, J. states that she made it clear to the Plaintiff that there would be no further adjournment of the trial. Ms. Diamante, a judicial assistant, e-mailed the endorsement to the Plaintiff on June 16, 2021.
[11] On July 8, 2021, Ms. Perri, the assistant trial co-ordinator, sent an e-mail to all parties advising that the trial was fixed to proceed on a peremptory basis on September 13, 2021. On the same day, D. Wilson, J. sent an e-mail to the parties confirming the trial would proceed on September 13, 2021.
[12] The pre-trial conference with Ramsay, J. took place on July 22, 2021. The Plaintiff attended the pre-trial by videoconference. She stated that she has no internet access and did not receive all of the court’s endorsements. Justice Ramsay was satisfied that the Plaintiff had received notice of the fixed trial date.
Her lack of internet access may explain why Ms. Renee has not received some of the court’s endorsements though it became apparent that she is aware of the contents of some of these endorsements including:
- There is a fixed trial date of September 13, 2021 peremptory to all parties (Justice D. Wilson’s endorsement dated June 14, 2021, attached, set out the date and notified Ms. Renee that the case will proceed to trial regardless of whether she has representation.)
[13] On the pre-trial, the Plaintiff again provided the Isabella Street address for service of documents. Justice Ramsay ordered the Defendant to deliver its pre-trial conference memorandum to the Plaintiff by e-mail and regular mail. On July 23, 2021, Ms. Diamante e-mailed the parties enclosing the endorsement of Ramsay, J. dated July 22, 2021.
[14] On July 26, 2021, Ramsay, J. heard the motion brought by Mr. Kerr to be removed as counsel of record. She notes in her endorsement that the trial is scheduled for September 13, 2021, peremptory to all parties, and that the Plaintiff is aware of the trial date. On July 26, 2021, Ms. Diamante e-mailed Ramsay, J.’s endorsement to the parties.
[15] Tamilla Fatalieva, a legal assistant with Defendant’s counsel, attempted to serve the Plaintiff with the trial documents by courier. The courier could not serve the documents because he did not have the unit number or buzzer code. On July 29, 2021, Ms. Fatalieva sent an e-mail to the Plaintiff and requested the unit number or buzzer code. On July 30, 2021, Ms. Perri, e-mailed the Plaintiff and requested the unit number and buzzer code. The Plaintiff did not respond to the e-mails.
[16] The pre-trial conference was scheduled for August 30, 2021 with D. Wilson, J. The Plaintiff failed to attend. In her endorsement, D. Wilson, J. states that the four-week jury trial is to commence on September 13, 2021 on a peremptory basis. Ms. Kidd e-mailed D. Wilson, J.’s endorsement to the parties on August 30, 2021.
Analysis
Is the Defendant entitled to the Dismissal of the Action?
[17] I am satisfied on the evidence before me that the Plaintiff was aware that the trial was scheduled to commence on September 13, 2021, and that the trial date was peremptory to the parties. The trial date was discussed at the time of the pre-trial with Ramsay, J. on July 22, 2021. In her endorsement dated July 22, 2021, Ramsay, J. notes that the Plaintiff received notice of the trial date and that it was peremptory on both parties. In her endorsement dated July 26, 2021, Ramsay, J. states that the Plaintiff is aware of the trial date.
[18] The Plaintiff failed to attend the trial. She did not advise the court or counsel for the Defendant that she would not be attending the trial. No reason for her non-attendance was provided to the court.
[19] The accident giving rise to this claim occurred over two decades ago. From a review of the chronology set out at paragraph 5, it is apparent that the Plaintiff failed to move this matter along with any degree of urgency. She did not comply with court orders. She failed to attend court appearances. I am satisfied that as a result of the passage of time, there is risk that the trial will not be fair to the Defendants if there is a further delay.
[20] For much of the history of the action, the Plaintiff was self-represented. She has been accommodated by various judicial officers. She has been given every opportunity to proceed with her action. In Lochner v. Callanan, 2016 ONSC 4136, the court noted:
This court must be very wary of allowing the admirable precepts of access to justice and reasonable accommodation of self-represented parties to be stretched and abused by over-indulgence of unacceptable behaviour. Access to justice is a right, but not without limit. Parties responding to self-represented litigants also have a right to access to justice on a level playing field. No litigant has the right to operate by rules of their own choosing while exhibiting open contempt for rulings of the court and its procedures: at para. 7.
[21] The Plaintiff had sufficient time to prepare for trial. She received clear and unambiguous notice that the case would proceed on September 13, 2021 regardless of whether she was represented by counsel. She chose to ignore this notice. This is consistent with the way she responded to previous orders of this court. The delay in this case has reached the point that, “enough is enough”: Romanko v. Aviva, 2017 ONSC 2393, at para. 22.
[22] No explanation has been provided by the Plaintiff for her failure to attend the trial today. There is no basis for me to provide relief to the Plaintiff from the order that the trial date is peremptory. I adopt the dicta of Master Pope in Wood v. Shoppers Drug Mart, 2018 ONSC 1097, at para. 58:
[…] The ordinary meaning of peremptory is absolute or unconditional. […] what is the purpose of terms of an order being made peremptory to a party if a court does not enforce the term?
[23] I allow the Defendant’s motion. The Plaintiff’s action is dismissed.
Are Costs Payable to the Defendant?
[24] Based on the outstanding cost awards, the net amount the Plaintiff currently owes to the Defendant is $13,150.
[25] In addition to the existing cost awards, the Defendant seeks its costs of the action. The Defendant filed a Bill of Costs in the amount of $105,803.06 on a partial indemnity basis and $153,571.60 on a full indemnity basis, inclusive of counsel fee, disbursements and HST. These amounts exclude the costs previously awarded for the motions and appeals.
[26] In exercising my discretion with respect to fixing costs, I considered the factors identified in Rule 57.01 of the Rules of Civil Procedure. I also considered the overall objective of any costs award; that it be fair and reasonable and within the reasonable expectation of the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26, 38.
[27] The Defendant argues that the following factors resulted in increased costs;
a. The length of the litigation of 22 years;
b. The multiple motions and appeals;
c. The numerous attendances at pre-trial conferences, case management conferences and trial management conferences;
d. The fact the Plaintiff was for long periods of the litigation, self represented which resulted in delays and increased costs; and
e. The fact the trial was peremptory on the parties which required the Defendants to fully prepare for trial.
[28] It is my view that the most significant factor in the assessment of costs in this case is R.57.01(1)(e); the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceedings. As noted in the history of the proceeding at paragraph 5 above, the Plaintiff failed to comply with court orders, failed to attend hearings and failed to attend medical examinations. Her conduct unnecessarily lengthened the proceedings and resulted in increased costs to the Defendant.
[29] The Defendant brought a number of motions and appeals during the course of the proceeding. Costs were awarded on those motions. I do not include the costs incurred in the motions or appeals in assessing the costs of the action.
[30] The Defendant made two Offers to Settle the action. On September 13, 2018, the Defendants offered to settle with the payment to the Plaintiff of $75,000 for all pecuniary and non-pecuniary damages with interest, costs and disbursements to be agreed upon or assessed. The offer was open for acceptance until 5 minutes after the commencement of trial. The offer was not withdrawn. The second offer was made on September 7, 2021 in the amount of $170,000 for all pecuniary damages and non-pecuniary damages, inclusive of interest, plus costs and disbursements to be agreed upon or assessed. The offer had not been withdrawn.
[31] Rule 49.10 provides that the Defendant’s offer is to be made at least seven days before the commencement of the hearing. The offer made on September 7, 2021 was made six days before the commencement of trial and therefore does not comply with R. 49.10. The offer made on September 13, 2018 complied with the requirements of R. 49.10, however the Plaintiff’s action was dismissed and therefore the circumstances are not caught by the language of R. 49.10: Beauchamp v. DeMan, 2019 ONSC 1479, at para. 9. I do not consider the offers in the exercise of my discretion: Iannarella v. Corbett, 2015 ONCA 110, at para. 138.
[32] I note that the Plaintiff has taken the position in this action that she is impecunious. A court has the discretion to make no cost order on the basis of impecuniosity however such awards should be rare: Sutherland v. Manulife, 2011 ONSC 1170, at para. 8. Although hardship and impecuniosity may be factors, a party without means cannot expect to be immune from a cost order: Mark v. Bhangari, 2010 ONSC 4638, at para. 10. Here the Plaintiff’s actions resulted in increased costs to the Defendant. The Plaintiff cannot conduct herself in this manner and then expect the court to reduce her entitlement to costs because of impecuniosity. I do not take into account the Plaintiff’s alleged impecuniosity is assessing the Defendant’s costs.
[33] I find the Defendant is entitled to its costs of the action on a partial indemnity basis. I am of the view that a reasonable amount for partial indemnity costs, excluding the costs awarded on the motions and appeals, is $50,000. I assess the Defendant’s costs of the action as follows:
a. Outstanding cost awards $13,150.00
b. Partial Indemnity costs – counsel fee $50,000.00
c. HST on counsel fee $ 6,500.00
d. Disbursements including HST $13,075.88
Total $82,725.88
Disposition
[34] I make the following order:
a. The Plaintiff’s action is dismissed; and
b. Costs are payable by the Plaintiff to the Defendant fixed in the amount of $82,725.88.
DATE: September 15, 2021