Court File and Parties

COURT FILE NO.: CV-19-00140651 MOTION HEARD: 12162021 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mancini Homes Ltd., Plaintiff AND: Anthony Caradonna and Dora Caradonna, Defendants

BEFORE: Associate Justice Jolley COUNSEL: Danielle Muise, counsel for the moving party plaintiff Michael Panacci, counsel for the responding party defendants

HEARD: 16 December 2021

REASONS FOR DECISION

[1] The plaintiff brings this motion for an order striking the defences as a result of the defendants’ failure to comply with various court orders; or, in the alternative, an order for (a) leave to amend their claim, (b) a revised timetable; and (c) requiring the defendants to answer their undertakings, questions taken under advisement and refusals.

[2] The defendants sought to bring a cross motion for an order compelling the plaintiff to produce certain business records. The defendants also relied on this alleged non-production to defend the plaintiff’s motion arguing that it was premature in light of its own non-compliance. They argued for an adjournment of this motion in the event I would not allow their motion to proceed as well.

[3] I refused to hear the defendant’s cross motion for productions and refused the adjournment request for six reasons. First, the motion raises is a separate and independent production issue that the defendants are welcome to deal with by way of motion. Second, the plaintiff has waited for almost six months to have its motion heard, having obtained this date in June 2021. Third, the defendants did not serve their notice of cross motion until 7 December 2021 and then served experts report in support of that motion on December 9 and 10. The motion was never filed or properly before me. I received an emailed copy in the course of the motion and was asked to rely on portions of the affidavit as the response to this motion. Fourth, today’s list as it was already substantially overbooked with parties who have also been waiting months to have their properly booked motions heard. Fifth, the defendants are in default of two court orders. Pursuant to rule 60.12, where a party is in default of an interlocutory order, its action may be stayed. At a minimum, it may be precluded from bringing its own motions while it remains in default. Lastly, counsel for the defendants advised me that he now had a date in April for his clients’ motion.

[4] On the timetable, the parties agreed that the defendants’ undertakings will be answered by 31 January 2022. Given the delay these various interlocutory motions have caused, I have also extended the set down date to 30 November 2022, as requested.

[5] I put the plaintiff’s counsel to the election as to which parts of the motion she wished to argue given the time she had booked. She advised that she argue the motion to dismiss and the motion to amend. That portion of the motion dealing with the defendants’ under advisements and refusals is hereby adjourned sine die.

Motion to Dismiss

[6] Before the motion was argued, Mr. Panacci advised that he had $2,000 to pay the costs award ordered by Brott, A.J. on 12 March 2020 and had in his trust account the $2,900 to pay the costs award ordered by Josefo, J. on 7 December 2020 and was prepared to deliver those funds to the plaintiff today.

[7] While the plaintiff was appreciative of the offer and argued the transfer should occur regardless of the outcome of the motion (and I agree), she argued that this was too little, too late. The defendants were required to pay those costs awards in any event and it should not have required a motion to obtain payment.

[8] Further, it was not only the payment obligation with which the defendants hadn’t complied. They had not delivered their affidavit of documents and productions by the deadline set out in the order of Brott, A.J. The defendants acknowledged before Josefo, A.J. on the hearing arising from those defaults that they had not complied with the timetable order. By way of explanation, they advised that they intended to bring a motion to vary that order and would like the motion before Josefo, A.J. adjourned for that purpose. Associate Justice Josefo did not adjourn the motion, characterized the request to be a “(creative) last-ditch delaying tactic” and imposed a peremptory timetable with costs fixed at $2,900 payable within 30 days.

[9] The plaintiff argues that the defendants have tried to use the same tactic today to attempt to derail this motion and will likely continue to do so to thwart the plaintiff moving this simplified procedure matter forward on any cost-effective basis. Further, they failed to comply with the amended timetable order of Josefo, A.J. and did not deliver their affidavit of documents by 18 December 2020 pursuant to his order but, instead, delivered it (and then, only delivered partial productions) one day before the scheduled January 2021 discoveries.

[10] I agree that the defendants’ failure to pay the costs and to abide by court orders has been part of a pattern of non-compliance and has resulted in unreasonable delay and gutted the intent of the simplified procedure process.

[11] The defendants have now delivered their productions and have been examined for discovery. I do not find it would be reasonable to strike the defendants’ defence at this stage, particularly where their lawyer represents that the outstanding costs will be December 16 or 17, latest. While I am not prepared to strike the statement of defence, I make the following order:

(a) subject to the April motions judge exercising his or her discretion otherwise, the defendants’ motion returnable that date is stayed unless the outstanding costs orders have been paid;

(b) if the outstanding costs are not paid within 30 days of the date of these reasons, the defendants’ defence may be struck by the registrar upon the plaintiff filing an affidavit swearing that payment had not been made and requisitioning same. (See Rana v. Unifund 2016 ONSC 2502).

Motion to Amend the Statement of Claim

[12] The plaintiff seeks a minor amendment to its prayer for relief, as follows:

1. The plaintiff claims:

(a) damages for breach of contract in the amount of $56,000, or such other and further amounts as may be proven at trial;

(b) in the alternative, restitution in the amount of $100,000, or such other and further amounts as may be proven at trial, for unjust enrichment and/or quantum meruit.

[13] The plaintiff pleads no new facts and raises no new causes of action so the proposed amendment does not give rise to any limitation period issue. The present statement of claim already pleads the plaintiff’s contract claim as well as its claims based on restitution, unjust enrichment and quantum meruit.

[14] There is nothing scandalous, frivolous, vexatious or abusive about the proposed amendment. While it is almost impossible to imagine what kind of prejudice could arise, the defendants have not led any evidence that the amendment would cause non-compensable prejudice.

[15] The plaintiff shall have leave to amend its claim in the form set out at Schedule “A” to its notice of motion.

Costs

[16] The plaintiff seeks its substantial indemnity costs in the amount of $19,617.37. It argues that the defendants were already given a lifeline by Josefo, A.J. through his peremptory order and still did not comply with either that order or the order of Brott, A.J.

[17] Even if the defence is not struck, the plaintiff argues that there should be significant sanctions for the defendants’ failure to comply. While the costs may seem disproportionate, given this is a simplified procedure action, the plaintiff has had to spend beyond all measure of reasonableness to ensure its action moves forward and that fault lays entirely with the defendants.

[18] The defendants proposed that any costs be in the cause.

[19] I find that the argument that the defendants advanced did not address the issues on this motion. They simply reiterated their argument about the plaintiff’s non-disclosure which is the subject of the cross motion that was expressly not before me. Further, they raised an argument about the role of the plaintiff’s law firm that they raised before Josefo, A.J. more than a year ago. That argument is also non-responsive to this motion. Further, while they continue to raise the spectre of some conflict, they have brought no motion to vary any order on that or any other basis.

[20] Having heard the argument on this motion and considered all the circumstances, I fix the costs of the motion at $12,000 payable by the defendants to the plaintiff within 30 days. Subject to the ultimate direction of the motions judge, I stay the defendants’ cross motion until this payment is made. If payment is not made within 30 days, the plaintiff may move on that basis with an affidavit to the registrar certifying non-payment to have the defence struck and the defendants noted in default, as set out in paragraph 11(b) above.

Associate Justice Jolley

Date: 17 December 2021