Court File and Parties

COURT FILE NO.: CV-16-554708 DATE: 20220311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MANOUCHER BARADARAN, FARIBA BARADARAN, SABA BARADARAN, a minor through her Litigation Guardian, MANOUCHER BARADARAN, and SAMA BARADARAN, a minor through her Litigation Guardian, MANOUCHER BARADARAN Plaintiffs – and – 6325955 CANADA INC., o/a ELITE APPLICANCE SERVICE and ELECTROLUX CANADA Defendants

Manoucher Baradaran, Self-Represented Plaintiff Alana M. Daley and A.J. Billes, for the Defendants

HEARD: March 8, 2022

A. Ramsay J.

Overview

[1] After six days of no evidence being called by the plaintiff in what was to be ten-day judge alone trial, the only remaining defendant in this action, 6325955 Canada Inc. o/a Elite Appliance Service (“the defendant”), brings this motion to dismiss the plaintiff’s action pursuant to subrule 52.02 c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant contends that the plaintiff’s failure to participate at his own trial warrants this severe remedy being granted and costs.

[2] This product liability action involves alleged damage to a refrigerator and resulting property damage. The plaintiff alleges that on July 17, 2013, a technician attended at his house to carry out some repairs to an ice dispenser of the fridge, and, while completing repairs, either damaged or did not close the water pump inside the fridge which, in turn, caused water to leak from the main floor to the basement, below, damaging the ceiling, wall and carpet in the basement area.

[3] The plaintiffs sued the manufacturers of the fridge. On consent, the claims of all the plaintiffs, save Manoucher Baradaran (“the plaintiff”), were dismissed in June 2018.

[4] This matter was scheduled for a ten-day trial commencing February 28, 2021. The trial was preceded by a trial management conference on February 25, 2022. At the outset, I indicated to the plaintiff that any health issues, which he indicated that he had going back to 2013, would be accommodated by the court. The plaintiff later argued both the motion to adjourn the trial and the motion to dismiss the action on his own without requesting any accommodation from the court during his submissions.

[5] On the first day that the trial was slated to start, the plaintiff brought a motion to adjourn the trial.

[6] For reasons given on March 1, 2022, I dismissed the plaintiff’s request for an adjournment of the trial. The motion was the plaintiff’s third attempt in the space of three weeks to have the trial adjourned.

[7] On February 3, 2022, Dow J. declined to do so at a case conference and directed the parties to the Civil Team Lead to seek an adjournment of a fixed trial date, as is the practice in the Toronto region.

[8] On February 9, 2022, after hearing submissions, Wilson, D.A.J. declined to adjourn the trial but suggested that the plaintiff could renew his request before the trial judge. In declining to adjourn the trial, D.A. Wilson J. took into account a number of factors including the age of the case (this was a 2013 incident), the fading of memories with the passage of time, the plaintiff having been represented by counsel on two prior occasions, the opportunity that had been available to the plaintiff to bring any motion for productions and complete discovery, the fact that the plaintiff had been representing himself since July 2021, among other things. She concluded that: “It would be unfair to the defendant to adjourn this trial and add further delay to the adjudication of the case on its merits.”

[9] In dismissing the plaintiff’s third adjournment request, I noted that the situation had not changed. After I dismissed the plaintiff’s motion to adjourn the trial, the plaintiff disconnected from the Zoom platform. After holding the action down until the afternoon, the trial proceeded in the absence of the plaintiff. The defendant has steadfastly maintained that it is ready and prepared to proceed with the trial – the plaintiff, however, has repeatedly insisted that he will not participate at his own trial. He submits that this is a “game” and he knows what the outcome will be. At one point, he called the administration of justice “corrupt” and submitted that my decision was “biased”.

[10] On the morning of the defendant’s motion to dismiss on March 8, the plaintiff raised the issue of service of the defendant’s motion record. The issue of service was previously addressed on March 4, and the plaintiff raised no issue with service then when Ms. Daley confirmed the materials had been served in accordance with the court’s timetable and direction. I am satisfied, based on the sworn affidavit of Ms. Hayley which forms part of the record, that the plaintiff was served with the defendant’s Motion Record, Factum, and Brief of Authorities at his email address on March 2, 2022, pursuant to subrule 16.06.1 of the Rules.

Position of the Defendant/Moving Party

[11] The defendant brings this motion to dismiss the plaintiff’s action on the basis that the trial commenced on the afternoon of March 1, 2022, with the calling of two witnesses but the plaintiff failed show up in court, and thereafter, has refused to participate in his own trial though he attended to argue the motion to adjourn. Ms. Daley submits that the defendant remained ready and willing to proceed with the trial and was prepared to abandon its motion to dismiss if the plaintiff intended to participate at the trial. She argues that the defendant had no choice but to prepare for the trial. She submits that since the plaintiff had no intention of participating in his own trial, the defendant is left in limbo.

[12] Ms. Daley argues that the plaintiff’s repeated refusal to participate in his own claim warrants the extreme remedy of dismissal of his claim. She submits that the other plaintiffs have never attended the trial. She argues that the defendant acknowledges that a dismissal was a severe remedy but submits that the court must control its own process to ensure fairness to all litigants.

[13] Counsel for the defendant urged the court to apply the principles articulated in rule 1.04 of the Rules to liberally construe the rules “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[14] In response to the plaintiff’s submission regarding delay in receiving the defendant’s documents, Ms. Daley submitted that i) the defendant’s documents were produced during the course of the litigation; ii) the defendant served the plaintiff with an electronic copy of their trial documents on February 10, 2022; iii) the plaintiff was served with a physical copy of the defendant’s trial documents by courier (which he initially refused to accept on February 25, 2022; and, iv) the defendant’s documents were uploaded to Caselines on February 25, 2022.

Position of the Plaintiff/Responding Party

[15] The plaintiff submits that the defendant is anxious to dismiss the claim. He submits that he never refused to participate in the trial. He reiterated arguments raised on the motion to adjourn the trial, and without any evidence before the court, submits that he received the file the second week of January or February from his own counsel, and it was incomplete. He claimed he received the defendant’s materials on March 2, 2022.

[16] The plaintiff further submits that there are four plaintiffs in the action, and he and his wife, as well as his two daughters, had suffered mental stress and depression.

[17] He submits that the claims of the children were dismissed by a Master (now Associate Judge) contrary to rule 7.01 and rule 23.01. He submits that he received the physical file from the defendant on March 1st and has received emails from defence counsel that he could not open.

[18] He renewed arguments raised on the adjournment motion. He submits that there are “critical” missing documents. He argued that the order of Berger J. (the Small Claims Court judge) directed that the file of “Steve” be provided thirty days before trial as well as Steve’s qualification. He questioned how the defendant could not have the file. He submits that Glenn Donnelly (a representative of the defendant) in fact provided two affidavits, one in 2014 and another a month previously, and he was entitled, under the Rules, to clear up any inconsistencies before the trial.

[19] As he did on the adjournment motion, the plaintiff levelled allegations of misconduct against defence counsel. He submits that defence counsel had taken advantage of a self-represented party, had communicated with the court, had communicated with his insurance company without his knowledge, had communicated with his witnesses, without his knowledge, and had threatened his witnesses with jail if they did not co-operate with them.

Significant events in the case

[20] This case has a lengthy procedural history marked by various amendments to the pleadings, transfer between courts, representation of the plaintiff, on two separate occasions, by a lawyer. The plaintiff was last represented by a lawyer in July 2021. The following procedural history is noteworthy:

July 13, 2013 A technician attended at the plaintiff’s home to repair an ice dispenser, and allegedly broke the unit, while attempting the repair. The damage allegedly led to water damage October 21, 2013 Plaintiff commences action in the Small Claims Court against the defendant and one other defendant, Electrolux Canada October 21, 2014 Plaintiff’s wife, Fariba Baradaran, and daughters, Saba Baradaran, born December 22, 2022 and Sama Baradaran, born December 7, 2001 are added as party plaintiffs. April 28, 2016 Action transferred to the Superior Court by Order of Faieta J. June 14, 2016 Plaintiff amends statement of claim increasing damages from $25,000 to $268,699.00 for repair and replacement costs At para. 9 the plaintiffs plead that: “The Plaintiffs suffered emotional stress as a result of damages caused by the defendants by the lack of water and ice during a part of the summer and as a result of the damages caused by the poor repair of the fridge.” April 12, 2017 The defendant delivers a Fresh As Amended Statement of Defence June 25, 2018 Consent order of then Associate Justice Sugunasiri dismissing claims of wife, Fariba Baradaran and of the two children, Sama, and Saba Baradaran. July 18, 2018 Glenn Donnelly, a representative of the defendant examined for discovery September 24, 2018 Defendant provides answers to undertakings. Advises the employment file of Steve Lee does not exist. November 27, 2018 Mediation held January 17, 2019 Action dismissed against defendant Electrolux Canada by order of Matheson J. June 26, 2019 Plaintiff served Trial Record January 11, 2021 Trial Co-Ordinator confirms 10 day judge alone trial scheduled for the week of February 28, 2022 August 30, 2021 Notice of Intention to Act Person, executed by the plaintiff on July 5, 2021, served on counsel for the defendant January 19, 2022 Pre-Trial of this matter took place before Sanderson J. February 3, 2022 Case conference before Dow J. who declined to adjourn the Trial and directed the parties to the Team Lead February 9, 2022 Team Lead, D.A. Wilson J., dismissed the plaintiff’s motion to adjourn the trial March 1, 2022 Plaintiff’s motion to adjourn the trial was dismissed. Plaintiff left the trial and did not return. March 4, 2022 Plaintiff attended court. Counsel for the defendant indicated they were prepared to proceed with the trial and abandon their motion to dismiss. The plaintiff declined to do so and requested an extension of time to deliver his motion materials. Extension granted to March 8, 2022. March 8, 2022 Counsel for the defendant indicates the defendant is ready, willing and able to proceed with trial and would abandon its motion to dismiss if the plaintiff were to proceed with the trial. The plaintiff declined to do so and the defendant proceeded with its motion to dismiss.

[21] The motion to adjourn the trial proceeded on February 28, 2022. On March 1, 2022, I dismissed the plaintiff’s motion to adjourn the trial. I indicated to counsel and to the plaintiff that as I had indicated the previous day, after the adjournment motion was determined, the trial would be started promptly. I asked the plaintiff whether he was prepared to do his opening or whether he wished to wait until the afternoon.

[22] In response, the plaintiff stated: “I am very disappointed with your decision. I am not going to proceed any further with your file to make whatever your decision are (sic). I will make a notice of appeal to the Court of Appeal for your decision…Very unfair your decision. Unfortunately, there is a corruption in our judicial system whether in the lawyers, whether in court, some of the court and the government and …..” He went on to state: “I respect your court, but I do not appreciate it of the discipline therefore, I am not going to be further wasting my time.” The plaintiff then added that he was not saying wasting the court’s time, but went on to state: “wasting my time here to sit down and go to the end ….”. The plaintiff went on to repeat that he was wasting his time, would be appealing and advised: “.. and I am not going to be sitting with the court.” After further comments, the plaintiff indicated that he was going to pick up his medication and take his dog for a walk, and indicated that he would disconnect (from Zoom) and stating that he did not want to be rude but he stated: “But, I have to be rude with your court.”

[23] After some further comments, most of which were inaudible, the plaintiff remained present in the Zoom courtroom for a few more minutes. I advised the plaintiff that he was still in court and asked to hear from Ms. Daley. In turn, Ms. Daley indicated that the defendant was able to do their opening and advised the court that the individuals that they summonsed were present in court. In the mist of Ms. Daley addressing the court, the plaintiff disconnected from Zoom. The plaintiff did not return after a morning break and in the result, Ms. Daley asked the court to dismiss the plaintiff ‘s action for failure to attend trial. I declined to do so in the absence of notice to the plaintiff and the defendant serving their motion materials on him to afford the plaintiff an opportunity to re-attend at the trial or respond.

[24] The trial was held down until the afternoon partly to permit the defendant’s two witnesses, who were in court that morning under summons, to determine how best to transmit the documents to be deposited with the court in an electronic form to the registrar. During the break, Mr. Billes, counsel for the defendant, emailed the plaintiff advising him that the defendant would be calling witnesses at 3:30 p.m.. Mr. Billes also placed a call to the plaintiff and left a message advising him that the defendant would be calling witnesses in the afternoon. In addition, at my direction, the registrar sent the following email to the plaintiff, which was copied to counsel for the defendant:

“Court will resume at 3:30 p.m. at which point the defence will call the custodian of documents to deposit documents into court.”

[25] None of the overtures from either defence counsel or the court registrar elicited any response from the plaintiff. Upon resumption at 3:30 p.m., defence counsel were present and the witnesses were present. The plaintiff did not attend court. The court elected to proceed with the trial and accordingly, the defendant’s two witnesses, Mr. Zahair Ali, in-house counsel for Tarion Warranty Corporation, and Ms. Jasvinder Singh, in-house counsel for Desjardins Insurance, were called to deposit documents with the court in the absence of the plaintiff.

[26] At the conclusion of the first day of trial on March 1, Ms. Daley indicated that should the plaintiff not participate at his own trial, the defendant would bring a motion to dismiss his action. In the absence of the plaintiff, the court set a timetable for the defendant’s motion if they wished to proceed. Paragraph five of the endorsement indicated that: “Absent any request for an extension by the plaintiff, the defendant’s motion to dismiss will be heard on Friday, March 4, 2022, at 10:00 a.m.” The endorsement containing the timetable was released to the plaintiff and to counsel for the defendant.

[27] The plaintiff attended court on the morning of March 4, 2022, but only to seek an extension to deliver responding materials. Ms. Daley indicated that the defendant would abandon its motion to dismiss the plaintiff’s action if the plaintiff was prepared to proceed with the trial that day. In response to the court’s enquiry as to whether he intended to proceed with the trial that day, the plaintiff stated: “Quick question and quick answer – No.”

[28] The defendant’s motion to dismiss was heard on March 8, 2022. Despite seeking an extension to deliver responding materials, the plaintiff delivered none. At the outset of the motion, Ms. Daley again advised the court that the defendant was prepared to abandon its motion to dismiss the plaintiff’s action should the plaintiff wish to proceed with the trial. In response to the defendant’s overtures, the plaintiff’s response was: “I am not participated (sic) to continue with this. I got the second opinion from the senior counsel, and I am responding to the dismissal of this action, if you allow.”

Analysis and the Law

[29] Subrule 52.01(2)(c) of the Rules provides that where an action is called for trial and where the defendant attends and the plaintiff fails to attend, the trial judge may dismiss the action.

[30] Subrule 52.01(2)(d) of the Rules, under the heading “Failure to Attend at Trial”, states that where an action is called for trial and a party fails to attend, the trial judge may make such other order as is just.

[31] Where a party fails to attend at trial, the court has the discretion to proceed with the trial in the absence of the party: subrule 52.01(2)(a) of the Rules; Limironi Inc. v. Susin (1992), 1992 CarswellOnt 2766 (Ont. C.A.).

[32] The court has discretion to dismiss a plaintiff’s action for failure to attend the trial: subrule 52.01(2)(c) of the Rules; Armour v. Bate, [1891] 2 Q.B. 233 at 235 (C.A.) [Armour v. Bate].

[33] The plaintiff bears the onus of proof and where the plaintiff fails to appear, or in this case fails to participate in his own trial, the plaintiff is unable to discharge that onus. As the plaintiff bears the burden of proof, a defendant may obtain an order dismissing the action without adducing any evidence that exonerates the defendant: Abrams, McGuinness, Canadian Civil Procedure Law, 2nd Ed., §16.68; Armour v. Bate, supra.

[34] During his submissions, the plaintiff raised “rule 61 and 63”, which he later conceded meant that my decision not to adjourn the trial was stayed pending an appeal. Counsel for the defendant argued that the plaintiff had not even delivered a Notice of Appeal at the time the motion. She argued however, that there was no automatic stay of a decision denying an adjournment.

[35] I agree with Ms. Daley, that the court should exercise its inherent jurisdiction to control its own procedure by doing justice to both sides. On the motion before me, the rights of both parties must be considered. The jurisprudence establishes that on a motion for dismissal, the court must consider the rights of all of the parties and the history of the action: Romanko v Aviva, 2017 ONSC 2393, at para. 20, aff’d 2018 ONCA 663 and Lochner v. Toronto (City) Police Service, [2016] O.J. No. 3396. In Lochner v. Toronto, Dunphy J. stated:

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.

[36] I adopt Dunphy J.s comments. In this case, despite the court’s refusal to grant an adjournment of the trial, the plaintiff has all but attempted to circumvent that order. A ten-day trial which was to be completed by March 11, 2022, turned into a marathon of delay for no valid reason. The plaintiff attended on February 28, March 1, March 4, and March 8th. On March 1, March 4, and March 8, he refused to open his case. He was afforded multiple opportunities by defence counsel on March 4 and March 8 to start his case, and in exchange, the defendant would abandon its motion to dismiss the action. The plaintiff steadfastly and resolutely refused to start his case, all the while with the defendant being ready and willing to defend the case against it, having waited eight plus years. A motion to dismiss the action, and attendant delay, would not have been necessary but for the plaintiff’s refusal to call any evidence to prove his case.

[37] With full knowledge of the consequences for refusing to participate in his own trial, the plaintiff deliberately chose not to call any evidence to prove his case. By the time the motion to dismiss was argued on March 8, 2022, the ten-day trial was off schedule a total of seven days following the denial of the adjournment of the trial. Despite the considerable down time, and an extension granted to the plaintiff to deliver any responding motion materials, he delivered none. There is not a scintilla of evidence from either his wife or his adult children about their intention to renew or re-open their personal injury action.

[38] Aside from the plaintiff himself, the balance of his witnesses are his wife and two daughters, all family members, and all, according to the plaintiff, who live with him and are aware of the trial date. Aside from the attendance at the trial management conference on February 25th by one of his daughters, none of them have attended at the actual trial.

[39] The plaintiff raised the issue of re-opening the personal injury case of his family members. The claims Mrs. Baradaran was settled by way of a consent dismissal order in June 2018. Mrs. Baradaran has not moved in the three plus years to set aside the consent order and, in any event, the plaintiff has not raised any issue of fraud, unconscionability or other factors to suggest that there would be any likelihood, at all, of setting aside the consent order dismissing her claims. As for the plaintiff’s two daughters, Saba, now nineteen, and Sama, now twenty, neither of them have attended at the trial. Both were over sixteen at the time of the dismissal order. Both signed a consent, but neither have moved promptly, or at all, to set aside the consent dismissal order of the Associate Judge.

[40] If they wished to set aside the order of the Associate Justice dismissing their action on consent, they could have moved promptly to do so upon attaining the age of majority. They have not done so. Without deciding the issue, it would appear that any approval under subrule 7.08 to dismiss the action is a mere technicality. In my Endorsement of March 1, 2022, I indicated that technically, they may still be parties to the action, but neither one of them have attended the trial despite being adults. And, if they intended to proceed with the action, neither Saba nor Sama have moved promptly to set aside the order, made on consent, dismissing their claims over three years ago. At a minimum, if either of them was interested in pursuing their claims, they would have brought the appropriate motion well before trial or, at the very least, shown up at the trial. They did neither.

[41] Moreover, the plaintiffs’ amended statement of claim set out at paragraph 11, particulars of the claim for damages totaling $268,669, claimed in paragraph 1 of the prayer for relief as follows:

[42] The amounts claimed for damages relate solely to claims for repairs and replacement costs.

Conclusion

[43] This is not a situation where a party fails to attend court through inadvertence, mistake, insufficient notice, or lack of notice. The trial in this matter commenced on February 28, 2022. At a trial management conference on February 25, 2022, the plaintiff and defence counsel were advised that depending on the outcome of the plaintiff’s motion to adjourn the trial, the trial would commence after a decision had been rendered.

[44] Additionally, while the plaintiff is unrepresented, he made it clear to the court that he had access to and was obtaining legal advice. Therefore, with actual and informed knowledge of the consequences of refusing to participate in his own case, the plaintiff chose not to prosecute his case, leaving the defendant in limbo. In so doing, the plaintiff was attempting to make an end run around the court’s denial of his adjournment request, and such conduct should not be countenanced.

[45] In my view, the trial also commenced on March 1, 2022, in the afternoon with the calling of the defendant’s two witnesses. Thereafter, despite numerous indulgences, the plaintiff refused to participate at his own trial. The adjournment request having been denied, the plaintiff has not called any evidence. The onus being on the plaintiff to prove his case on a balance of probability, no evidence having been called at the trial, the plaintiff’s action is dismissed for failure to participate at the trial.

[46] The issue involving the children, who were minors (but over the age of 16 and signed consents) is not an impediment to the dismissal of the plaintiff’s action. The dismissal of their actions by an Associate Judge, as opposed to a judge, is not a nullity and may be cured by an order of a judge. Since neither of them, now adults, attended at the trial, the utility of such an order is questionable in the circumstances. The plaintiff’s wife and children never attended even one day of the trial. As for the plaintiff’s allegations of misconduct on the part of defence counsel, they are baseless, and as previously stated in my March 1, 2022, endorsement, are borderline defamatory. Yet, despite my previous endorsement, he made the same charges.

Disposition

[47] While it is an extreme remedy, it is extremely unfair to a defendant who is ready for trial, has repeatedly offered the plaintiff a chance to reconsider his position, and remained ready and willing to proceed with the trial on March 1, March 4, and March 8, to be left to be left in limbo, as Ms. Daley puts it, and be at the whim and mercy of a plaintiff, who has stated repeatedly on the record, has no intention of participating in his own trial.

[48] For the reasons set out above, the plaintiff’s action is dismissed for failing to participate at his own trial and to prove his case.

Costs

[49] If the parties are not able to resolve the issue of costs within 15 days, they may contact Ms. Diamante to schedule a case conference to address costs. Costs submissions, a Bill of Costs, and a Costs Outline will be expected from the parties in advance of any submissions on costs

A. Ramsay J.

Released: March 11, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MANOUCHER BARADARAN, FARIBA BARADARAN, SABA BARADARAN, a minor through her Litigation Guardian, MANOUCHER BARADARAN, and SAMA BARADARAN, a minor through her Litigation Guardian, MANOUCHER BARADARAN Plaintiffs – and – 6325955 CANADA INC., o/a ELITE APPLICANCE SERVICE and ELECTROLUX CANADA Defendants

REASONS FOR JUDGMENT A. Ramsay J.

Released: March 11, 2022