COURT FILE NO.: CV-14-518093
DATE: 20220620
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIANA MICHELLE DANIELLA HORDO, Plaintiff
AND:
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant
BEFORE: VERMETTE J.
COUNSEL: Diana Michelle Daniella Hordo, self-represented
Kendall Andjelkovic, for the Defendant
HEARD: February 23, 2022
ENDORSEMENT
[1] The Defendant moves for:
a. an Order that this action be dismissed as against the Defendant for the failure of the Plaintiff to appoint a new lawyer of record or serve a notice of intention to act in person pursuant to Rule 15.04(8) of the Rules of Civil Procedure;
b. in the alternative, an Order that this action be dismissed as against the Defendant for the failure of the Plaintiff to attend at duly scheduled examinations for discovery on March 24, 2016, and March 21, 2018, and as a result of the Plaintiff engaging in conduct that is frivolous, vexatious and an abuse of process, thereby unnecessarily delaying the action;
c. in the further alternative, an Order that the Plaintiff attend in person at an examination for discovery at a date to be scheduled by the Defendant, failing which the Defendant may move, without notice, to dismiss the Plaintiff’s action as against it with costs;
d. in the further alternative, an Order that the Plaintiff attend a defence medical legal assessment at a date to be scheduled by the Defendant, failing which the Defendant may move, without notice, to dismiss the Plaintiff’s action as against it with costs;
e. in the alternative, an Order that this action be dismissed as against the Defendant for the failure of the Plaintiff to pay the costs in the amount of $7,750.00 that she was ordered to pay on November 1, 2021.[^1]
[2] I heard this motion as the Case Management Judge appointed for this matter.
[3] I grant the Defendant’s motion in part. As set out in more detail below, the Plaintiff is ordered to attend an examination for discovery in person, and the Defendant’s motion to dismiss the action for delay is adjourned to a case conference to be held before me after September 30, 2022, i.e. the deadline for the examination for discovery of the Plaintiff to take place.
A. FACTUAL AND PROCEDURAL BACKGROUND
[4] The Plaintiff is a 36-year-old woman who was born in November 1985. This action arises from a motor vehicle accident that occurred on March 30, 2009 and in which the Plaintiff was involved. The dispute between the parties relates to statutory accident benefits.
[5] This action was commenced on December 15, 2014, more than five years after the accident. Seven and a half years later, the action is still at a relatively early stage in that examinations for discovery have not been held.
1. Pleadings
[6] As stated above, the Statement of Claim was issued on December 15, 2014.
[7] On February 5, 2015, the Defendant delivered a Notice of Intent to Defend and Jury Notice. On March 10, 2015, the Plaintiff noted the Defendant in default. The noting in default was set aside by Order of Master McAfee (now Associate Justice McAfee) dated July 22, 2015. No one appeared for the Plaintiff on the motion before Master McAfee.
[8] On July 30, 2015, the Defendant delivered a Statement of Defence.
[9] Amended pleadings were filed on February 10, 2017 (Amended Statement of Claim) and March 10, 2017 (Amended Statement of Defence).
2. Attempts to schedule the examination for discovery of the Plaintiff
[10] On December 21, 2015, the Defendant served a Notice of Examination on the Plaintiff for an examination for discovery scheduled for March 24, 2016. The Plaintiff failed to attend the examination for discovery on that date and a certificate of non-attendance was obtained.
[11] On August 26, 2016, counsel for the parties attended at Civil Practice Court to schedule a motion to be brought by the Defendant. Justice Diamond’s endorsement states that the Defendant’s “[m]otion to strike under Rule 21 coupled with relief arising from non-compliance with costs orders and failure to attend examinations” was scheduled for January 12, 2017.
[12] On January 12, 2017, Justice Kristjanson heard the Defendant’s motion. She ordered that the Defendant deliver a notice compelling the Plaintiff to attend an assessment pursuant to section 44 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”) by February 10, 2017. Justice Kristjanson made further orders regarding: (a) the delivery of amended pleadings, (b) the service of further affidavits of documents by March 30, 2017 (i.e. after the delivery of amended pleadings), and (c) the completion of examinations for discovery by May 15, 2017. Justice Kristjanson stated in her endorsement that if the Plaintiff failed to attend the section 44 examinations and there was no further order regarding these examinations, the Defendant could bring back its motion to strike on seven days’ notice to the Plaintiff.
[13] The examination for discovery of the Plaintiff was subsequently scheduled for May 11, 2017. The Plaintiff was served with a Notice of Examination dated May 4, 2017. Between May 4 and 11, 2017, the parties’ counsel agreed to adjourn the examination for discovery given that the section 44 assessments had not yet been completed and the reports had not been delivered.
[14] On May 9, September 22, December 6 and December 11, 2017, counsel for the Defendant wrote to counsel for the Plaintiff to ask for the latter’s availability in order to reschedule the examination for discovery of the Plaintiff. Ultimately, on December 13, 2017, counsel agreed to reschedule the Plaintiff’s examination for discovery to March 21, 2018. On January 11, 2018, the Defendant served the Plaintiff with a Notice of Examination for an examination for discovery on March 21, 2018.
[15] On March 12, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff confirming that the Plaintiff’s examination for discovery was scheduled to proceed on March 21, 2018, and asking that the Plaintiff provide a current, up-to-date and complete affidavit of documents.
[16] On March 20, 2018, i.e. the day before the examination for discovery, counsel for the Plaintiff sent the following letter to counsel for the Defendant (“March 20, 2018 Letter”):
I have heard from my client in respect of the Examinations for Discovery scheduled for tomorrow (March 21, 2018), and I am advised that she is quite ill and unable to attend. I apologize for the relatively late notice, however, her status has only now been confirmed.
I am instructed, in light of her health, to seek a case conference with Justice Kristjanson, for the purpose of arranging that my client’s Examination for Discovery be conducted by written interrogatories, as she is currently unable to attend to be questioned in person. I will be pursuing appropriate medical confirmation in respect of this.
I am also instructed by my client to request production of all documents previously requested from your client’s draft Affidavit of Documents. Copies of my client’s Schedule “A” documents were produced to your office last year, and a request was made for your client’s Schedule “A” production by letter of May 18, 2017. To date, none have been received. Without those productions, an examination of your client would be premature and incomplete. I attach for ease of reference a scan of my file copy of that correspondence.
I will be inquiring of Justice Kristjanson’s assistant as to when a case conference can be scheduled, and will advise you accordingly. I trust that we will be able, during a case conference, to address the above issues satisfactorily.
[17] No case conference was scheduled with Justice Kristjanson.
[18] On March 21, 2018, since the Plaintiff failed to attend the examination for discovery scheduled for that day, a second certificate of non-attendance was obtained.
[19] On March 23, 2018, counsel for the Defendant wrote to counsel for the Plaintiff in response to the March 20, 2018 Letter. Counsel for the Defendant stated that he had not received the letter dated May 18, 2017 referred to in the March 20, 2018 Letter. He enclosed a complete copy of the Defendant’s Schedule “A” documents and noted that he had not received a complete copy of the Plaintiff’s Schedule “A” documents. Counsel for the Defendant requested that certain specific documents be provided by the Plaintiff.
[20] On May 30, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff asking that the latter contact him to reschedule the examination for discovery of the Plaintiff. Since no response was received, follow-up e-mails were sent on June 25 and July 11, 2018, and another letter was sent on July 11, 2018.
[21] On July 18, 2018, counsel for the Plaintiff sent a letter to counsel for the Defendant enclosing a “report” from Dr. Samuel Wong. The “report” was a letter dated May 14, 2018 from Dr. Samuel Wong to Whom It May Concern (“Wong Letter”). It stated the following:
I had been a treating physician for Ms. Hordo since 2010. I recently assessed Ms. Hordo. Given her persistent symptoms along the low back, I do believe that she would not be able to sit through Discovery. The extensive sitting that would be required would be a hardship for Ms. Hordo. It would be beneficial if she can provide her testimony in writing.
[22] On July 24, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff advising that he had received instructions to proceed with a face-to-face examination for discovery of the Plaintiff, and that if the Plaintiff was not agreeable to that, the Defendant demanded access to the Plaintiff to conduct its own assessment. Counsel for the Defendant asked for an immediate confirmation of the Plaintiff’s position on this issue.
[23] On February 5, 2019, counsel for the Defendant sent another letter to counsel for the Plaintiff. The letter read as follows:
Once again, we have received instructions to proceed with a face to face Examination for Discovery of your client.
In the event that your client is not agreeable we demand access to your client to conduct our own assessment.
Please immediately confirm your positon [sic] in this matter[.]
[24] On February 20, 2019, counsel for the Defendant sent another letter to counsel for the Plaintiff requesting access to the Plaintiff so that the Defendant could conduct its own medical assessment. Counsel for the Defendant sent follow-up letters on April 3, May 7, July 9, August 9, October 3, 2019, and also left a number of voicemail messages to counsel for the Plaintiff. Despite all of these attempts to obtain the Plaintiff’s position and move the matter forward, counsel for the Defendant did not hear back from counsel for the Plaintiff.
[25] On January 16, 2020, counsel for the Defendant sent a letter to counsel for the Plaintiff advising that they had received instructions to bring a motion to dismiss the action for delay and asking for the availability of counsel for the Plaintiff for the motion. Counsel for the Plaintiff did not provide a response and the motion was scheduled for March 2, 2020.
3. Events preceding the March 2, 2020 motion
[26] The Defendant’s Notice of Motion dated February 18, 2020 sought the following relief:
a. an Order that this action be dismissed as against the Defendant for the failure of the Plaintiff to attend at duly scheduled Examinations for Discovery, thereby unnecessarily delaying the herein action;
b. in the alternative, an Order that the Plaintiff attend in-person at an Examination for Discovery at a date to be scheduled by the Defendant, failing which the Defendant may move, without notice, to dismiss the Plaintiff’s action as against it with costs; and
c. in the further alternative, an Order that the Plaintiff attend a Defence Medical Legal Assessment at a date to be scheduled by the Defendant, failing which the Defendant may move, without notice, to dismiss the Plaintiff’s action as against them with costs.
[27] On February 25, 2020, counsel for the Plaintiff sent the following letter to counsel for the Defendant:
I am writing further to my voicemail messages of yesterday (around noon) and of this morning, respecting the Motion you have brought, returnable on March 2, 2020.
As I indicated in my voicemail yesterday, I have been attending to my elderly mother since the middle of December, who has been in hospital since that time, with advancing Alzheimer’s Disease and other health issues. I have been at the hospital virtually every day. When I received your fax dated January 16, 2020 (which was delivered by fax on January 17, 2020 at 4:09 p.m.), I was at the hospital and could not respond in writing. I left a voicemail after hours that day for your associate, Ms. Andjelkovic, and that was the last I heard on this matter. At that time, I had asked your firm to contact me directly so we could discuss possible ways of moving forward without a motion, and if a motion was necessary, to work out some agreed dates.
The situation with my mother has remained the same, with virtually daily attendance and presence at the hospital, trying to coordinate care and a transfer to a nursing home. As a result, I did not follow up again by phone or email after calling on January 17, 2020. I apologize for being remiss in that regard, and my only excuse is that I have been preoccupied with this family matter on a constant basis for the past two and a half months. I am the only family here in Toronto for my mother.
I got your Motion Record on the weekend, as I was able to pick it up from my mailbox. I had intended to call you first thing yesterday morning (Monday), however, I had to accompany my wife to a specialist appointment for a colonoscopy, and as I indicated in my voicemail, she discovered that morning that they found a large mass that needs to be surgically removed without delay. She has been referred to Sunnybrook Hospital, which has already called today to arrange a CT scan to see if the cancer has spread beyond the colon. The matter is moving very quickly, with anticipated surgery very soon. As I am sure you can appreciate, this is an added layer in terms of family health concern, and my focus is on being available for attendance at appointments, including tests and surgery, where they ask a family member to accompany the patient.
I called your office yesterday as soon as I knew the situation that had arisen with my wife.
I appreciate that this is a long-standing matter. I share many of your frustrations in that regard, and I trust you understand the basis for that. On a without prejudice basis, and to be perfectly transparent with you, it is my recommendation that my clients agree to the relief sought, i.e., attendance at Examinations for Discovery, and to arrange same without any further delay. I remain optimistic that we can work out your Motion on a consent basis, in fact. That requires me to meet with my clients, however, especially given the history of this matter, and to obtain firm, written instructions. It also requires me, if we cannot agree on a resolution of the Motion, to be able to put together responding material for your Motion.
The reality - my reality - right now, is that I have to deal with my wife’s cancer diagnosis and be available for attendance over the next week or two on short notice. The reality is that in addition to that, I am still required to address my mother’s health and residential issues on a daily basis, at least for a few more weeks until the space opens up in the nursing home, and to make those final arrangements. The reality for me is that on top of that, I am also going to be primarily responsible for parenting my son, as his mother goes through her surgical procedures and any follow-up cancer treatment. All of that, quite frankly, would be enough on its own, without the realities of being a sole practitioner without any support staff.
It is for that reason that I inquired in my message about agreeing to a brief adjournment of your Motion. There is no intent to delay. There is simply a recognition that I truly will be unable to respond to the Motion, and will need a few weeks to allow other aspects of my world to settle down a bit. I am not looking for a long adjournment - perhaps in April. I can suggest April 9, 16, 20 and 29 as being available.
I look forward to hearing from you regarding the above. Obviously my request for the adjournment is selfish, based on my family’s current health situations, but I am hopeful that it will allow me the opportunity to meet with my clients, and obtain instructions that may avoid the necessity of a Motion and move matters toward a conclusion.
[28] Earlier on February 25, 2020, counsel for the Plaintiff had sent an e-mail to the Plaintiff, her father and her mother. This e-mail was included in the Plaintiff’s motion record and, therefore, she has waived solicitor-client privilege over it. The e-mail read, in part:
As I anticipated, the report from Dr. Wong did not satisfy State Farm in respect of consenting to hold written discoveries. They have maintained that they are entitled to oral examinations for discovery of Daniella, and as I indicated in my earlier emails, I do not believe you can avoid oral examinations for discovery.
I also indicated that Dr. Wong’s report was insufficient for the purpose of trying to avoid discoveries. Given your retraction of my authority to use any written authorizations signed by Daniella to obtain any further documentation on my own, I am unable to write to any third parties (including doctors) to try to get any additional information that might potentially support your position. I cannot even get updated medical information to try to support the claim for benefits on its merits, since you have made it clear that I cannot use the authorizations that Daniella had signed.
Until examinations for discovery are held, I cannot move the case forward. To set the action down for trial, I have to essentially certify that discoveries and other pre-trial steps are complete. Once the matter is set down for trial, I cannot initiate discovery. Unless Daniella is prepared to attend at oral examinations for discovery, I am also not in a position to compel State Farm to be examined. Accordingly, until Daniella attends for examinations for discovery, I cannot set the action down for trial, thereby risk of being dismissed for delay.
For all intents and purposes, your position that Daniella will not attend at examinations for discovery has brought her claim to a standstill. I cannot get updated information that might allow me to deal with the claim on its merits. I cannot move the action forward without Daniella participating in steps that are mandated by the Rules of Civil Procedure.
State Farm has now brought a Motion, returnable on March 2, 2020. They are seeking to dismiss the action for delay (for non-attendance at the previously scheduled discoveries), and in the alternative, they seek an order compelling Daniella to attend at an examination for discovery. They are also seeking, in the further alternative, an order that Daniella attend at a defence medical assessment to determine whether Dr. Wong’s opinion is supported, i.e ., that Daniella cannot attend at discoveries.
For all the reasons I have outlined previously in my earlier emails (set out in the chain below), I have no reason to believe that the Court will not dismiss the action by virtue of Daniella’s non-attendance at discoveries. If we are fortunate, the order will only be one that compels her to attend, and if she then fails to attend in response to the order, then State Farm will be at liberty to dismiss the action. All of these orders will necessarily also have costs awarded against Daniella.
[Emphasis added.]
[29] On February 27, 2020, counsel for the Defendant advised that they were agreeable to a short adjournment of the motion based on the personal circumstances of counsel for the Plaintiff. Counsel for the Defendant also noted that an attendance on March 2, 2020 to adjourn the motion would likely be necessary given that the motion had already been confirmed.
[30] On February 28, 2020, Michael Hordo, the Plaintiff’s father and a former lawyer, sent an e-mail to the attention of: (a) Justice Kristjanson; and (b) Master Short (now Associate Judge Short), who was going to hear the Defendant’s motion. While the e-mail was sent by Mr. Hordo, it purported to be sent on behalf of the Plaintiff and her parents, and it requested an adjournment of the Defendant’s motion. The e-mail also contained allegations against counsel for the Plaintiff, including that he was “mentally sick”; he failed to do a number of things; he was a “danger to himself, to his clients, and to the Administration of Justice”; “[he] lied to us”; and he was incompetent and should not be practicing law. Mr. Hordo also indicated in his e-mail that the Plaintiff was willing to answer written interrogatories, and he referred to the Wong Letter.
[31] Later on February 28, 2020, Justice Myers sent the following e-mail to Mr. Hordo and the persons who were copied on his e-mail:
I am writing to you as co-Lead of the Civil Team and delegate of the Regional Senior Justice. The court has been copied on correspondence recently that did not comply with Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194. This is improper and must stop immediately. I will be appointing a Case Management Judge to replace Kristjanson J. who is no longer hearing civil matters and therefore can no longer case manage these actions. Counsel will be contacted by the new Case Management Judge once appointed. The court will not communicate further with parties who are represented by counsel of record.
[32] Mr. Hordo attended at the return of the Defendant’s motion on March 2, 2020. In light of the recent communication from Justice Myers, Master Short adjourned the motion to Justice Myers to be dealt with in case management. He noted in his endorsement that “[t]here are issues regarding progress of action and involvement of parents in this and companion matter […].”
4. September 14, 2020 case conference before Justice Pinto
[33] On March 2, 2020, Justice Myers advised the parties that Justice Pinto would replace Justice Kristjanson as Case Management Judge in this matter. He asked that the parties contact Justice Pinto’s assistant to arrange a first case conference. On March 9, 2020, counsel for the Defendant sent an e-mail to Justice Pinto’s assistant to ask that a case conference be arranged. Counsel for the Defendant sent a number of follow-up e-mails and, eventually, a case conference was scheduled before Justice Pinto on September 14, 2020.
[34] In the weeks leading to the case conference, Mr. Hordo sent numerous e-mails to counsel for the Plaintiff, counsel for the Defendant and Justice Pinto’s assistant which contained derogatory statements about, and serious allegations against, counsel for the Plaintiff. The e-mails to Justice Pinto’s assistant were sent in contravention of Rule 1.09 of the Rules of Civil Procedure and Justice Myers’ endorsement dated February 28, 2020. In response to these e-mails, counsel for the Plaintiff indicated that the issue of his removal as counsel for the Plaintiff would need to be discussed during the case conference before Justice Pinto.
[35] The case conference before Justice Pinto proceeded as scheduled on September 14, 2020. However, due to various reasons, Justice Pinto did not issue an endorsement until January 22, 2021. On December 17, 2020, the parties were advised that Justice Papageorgiou was replacing Justice Pinto to case manage this matter.
[36] Justice Pinto’s endorsement dated January 22, 2021 stated, in part:
A Case Conference was held before me on September 14, 2020 in respect of this matter. At the time, I was the Case Management Judge under Rule 77 dealing with this matter. As per a subsequent endorsement of Myers J. dated December 17, 2020, the parties were advised that, as I am no longer available to case manage this matter, Justice Papageorgiou is the new Rule 77 Case Management Judge. I am issuing this endorsement in respect of the September 14, 2020 case conference, however, further steps will be presided over by Papageorgiou J.
On March 2, 2020, State Farm brought a motion before Master Short to dismiss the action on the basis of the plaintiff’s failure to attend examinations for discovery. In light of Myers J.’s correspondence and the appointment of a Case Management judge, Master Short adjourned the motion.
Due to COVID-19 and its initial impact on the Superior Court and due to scheduling challenges, a Case Conference was not held before me until September 14, 2020.
The plaintiff has not been discovered by State Farm. She has resisted discovery on the basis of alleged medical reasons and obtained a report from a medical doctor. State Farm does not agree that the plaintiff can avoid discovery and has brought a motion for dismissal of the action (for plaintiff’s failure to attend discovery) or, in the alternative, for an order compelling the plaintiff to attend at discovery.
The plaintiff is not a minor, nor a person under a disability as there has never been a finding of incapacity. As plaintiff, she is represented by a lawyer, Mr. Besunder. However, the plaintiff’s father, Michael Hordo, a former lawyer, has continued to write directly to the court, copying others, criticizing Mr. Besunder’s representation of his daughter and conduct of the action. Mr. Besunder has stated, in light of Mr. Hordo’s criticisms, which the plaintiff did not disavow on the conference call or otherwise, that it is impossible or virtually impossible for him to continue to act for the plaintiff and either the plaintiff must file a notice to appear in person, or she must appoint new counsel, or he must bring a motion to remove himself as lawyer of record.
At the September 14, 2020 Case Conference, Mr. Besunder estimated that he could provide the plaintiff’s entire legal file to the plaintiff within 3 weeks which would provide the plaintiff with sufficient time to identify new counsel.
Counsel for the defendant insurer requested a quick time line by which it would be permitted to bring its motion to have the action dismissed, or to have the action move forward expeditiously including by way of the plaintiff’s mandated attendance at discovery.
Counsel for the defendant also requested that I issue directions so that the plaintiff, or anyone purporting to act on her behalf, including her father, cease writing directly to the court or, when corresponding with counsel, cease copying counsel who were formerly engaged on this file but who are no longer involved.
I regret that, due to a variety of developments, there has [sic] delay in my issuing this endorsement. In the interim, Papageorgiou J. has been appointed the Case Management Judge. In my view, the parties having attended the Case Conference before me on September 14, 2020, there are some orders that should come from me and, subject to the parties attending another Case Conference before Papageorgiou J., certain orders that should come from Her Honour based on an update of developments that may have taken place between September and now.
In light of the foregoing, an Order shall go as follows:
a) Michael Hordo is prohibited from communicating, directly or indirectly, with opposing counsel or with the court (or court staff) with respect to this matter. I repeat, this is an order of the court.
b) The plaintiff, or anyone acting on her behalf, shall refrain from communicating with or copying the following counsel who were formerly working on this matter (or on companion actions), but whom [sic] are no longer doing so: Michael Chadwick, John Olah, Mark Gelowitz. If one of these lawyers confirms that they are once again involved in this proceeding, communications may resume.
c) The parties shall attend a Case Conference before Papageorgiou J. by writing forthwith to Her Honour’s judicial assistant […].
[37] On January 31, 2021, counsel for the Defendant first contacted Justice Papageorgiou’s assistant to schedule a case conference before her. Ultimately, no case conference was held before Justice Papageorgiou and, in the spring of 2021, the case management of this matter was transferred to me.
5. First case conferences before me
[38] The first case conference held before me took place on April 30, 2021 by telephone. Counsel for the Plaintiff and for the Defendant were in attendance. I directed counsel for the Plaintiff to do the following by May 28, 2021: (a) either advise me, through my assistant, that he had received satisfactory instructions allowing him to continue to represent the Plaintiff, including on the Defendant’s motion to dismiss the action for failure to attend examinations for discovery; or (b) serve and file motion materials for an order removing him as lawyer of record in this matter.
[39] The second case conference took place on June 17, 2021 by telephone, with the same counsel in attendance. Counsel for the Plaintiff reported that despite his efforts, he had been unable to obtain a motion date before a Master (now an Associate Justice) for his motion to be removed as lawyer of record. Further, he stated that he had not heard back from his client since the last case conference, even though he had sent her a number of e-mails and also left a voicemail message. I held that I would hear the Plaintiff’s counsel’s motion and I established a timetable for the delivery of motion materials. My endorsement stated that if the motion was opposed, a case conference or a short hearing would be arranged.
[40] On July 14, 2021, counsel for the Plaintiff advised my assistant by e-mail that the Plaintiff had served responding motion materials on July 13, 2021. In accordance with my endorsement dated June 17, 2021, he requested that a case conference be scheduled. This request was followed by numerous communications from the Plaintiff and counsel for the Plaintiff that were sent to my assistant in contravention of Rule 1.09 of the Rules of Civil Procedure. Both the Plaintiff and counsel for the Plaintiff were directed to stop such communications.
[41] Another case conference was held before me by telephone on July 29, 2021. The Plaintiff participated personally in the case conference, as well as her counsel and counsel for the Defendant. My endorsement of that date stated the following:
At the last case conference in this matter on June 17, 2021, I ordered a timetable for Mr. Besunder’s motion to be removed as lawyer of record. The timetable provided that if Mr. Besunder’s motion was going to be opposed by the Plaintiff, Ms. Hordo, then a further case conference should be scheduled before me. I was advised that after Mr. Besunder served his motion record, Ms. Hordo served responding materials, which also purported to bring a new motion and were served on a number of third parties. I have not seen the motion materials served by the parties. Given Ms. Hordo’s apparent intention to oppose Mr. Besunder’s motion, a case conference was scheduled for today.
This case conference proceeded by telephone conference. It was obvious that Ms. Hordo was being told what to say by someone else during the case conference, which is concerning in light of previous endorsements made by other judges in this matter. Consequently, I have advised all parties that future case conferences will take place by videoconference. I have also urged Ms. Hordo to start looking for a new lawyer. She was reminded during the call that her father cannot represent her in this litigation.
I have advised Ms. Hordo that, given that this case is case managed by me and that all motions in this matter are to be made to me (unless I direct otherwise), she needs to arrange for a case conference with me and the Defendant before bringing any motion. This also applies to the Defendant. Any motion that Ms. Hordo purported to bring in the last month is not going to proceed. Mr. Besunder’s motion to be removed as lawyer of record needs to be determined first. The next steps in the action can be discussed at the next case conference in October.
Despite the fact that Mr. Besunder was prepared to consent to an order that he provide to Ms. Hordo a copy of his file within three weeks after an order removing him as lawyer of record, Ms. Hordo was still not prepared to agree to an order removing Mr. Besunder as lawyer of record, even though she confirmed today that she did not want Mr. Besunder to continue to act as her lawyer in this litigation. However, she was unable to articulate any valid ground in opposition to Mr. Besunder’s motion, and just repeated that I had to read her motion materials. As a result of her position, a formal motion was scheduled, but I warned Ms. Hordo that she could be ordered to pay costs on the motion in the event her response to Mr. Besunder’s motion raises irrelevant grounds and simply confirms that there has been a breakdown in the lawyer-client relationship making the removal of Mr. Besunder necessary. I advised Ms. Hordo that she should get legal advice and that she or a lawyer retained by her can reach out to Mr. Besunder directly if she wishes to resolve the motion before September 13, 2021.
[42] The formal order I made read as follows:
I order the following with respect to Mr. Besunder’s motion to be removed as lawyer of record, which the parties agreed will proceed in writing:
Mr. Besunder will deliver his motion materials by August 9, 2021.
Ms. Hordo will deliver her responding motion materials by August 23, 2021. The responding motion materials are to be strictly limited to a response to Mr. Besunder’s motion to be removed as lawyer of record. The responding motion materials are not to be served on any third parties and cannot seek any unrelated relief.
Mr. Besunder will deliver his Factum by August 30, 2021.
Ms. Hordo will deliver her Factum by September 9, 2021.
I will hear the motion in writing on September 13, 2021.
If any issues arise with respect to the timetable set out above, the parties can contact my assistant to schedule a case conference.
[Emphasis in the original.]
6. Motion of the Plaintiff’s counsel to be removed as lawyer of record
[43] I released my endorsement granting the motion of counsel for the Plaintiff to be removed as lawyer of record on September 17, 2021 (2021 ONSC 6193). As I noted in my endorsement:
“[w]hile this could and should have been a simple motion to determine in the circumstances of this case, Ms. Hordo filed more than 600 pages in response to the motion and is seeking various relief, not only against Mr. Besunder, but also against his wife, the Defendant, the Defendant’s lawyers and other non-parties. She also alleges apprehension of bias and bias on my part.
[44] The Plaintiff’s motion materials in response to her counsel’s motion to be removed as lawyer of record did not comply with my order dated July 29, 2021, which clearly stated that the Plaintiff’s responding materials were to be strictly limited to a response to her counsel’s motion to be removed as lawyer of record and could not seek any unrelated relief. Her materials contained three affidavits sworn by her father, Mr. Hordo, numerous exhibits to these affidavits, and a Notice of Constitutional Question. In addition to seeking unrelated relief, the Plaintiff’s materials were replete with criticisms towards, and serious allegations against her counsel, including allegations of bad faith, gross negligence, forgery, breach of undertaking, breach of the Rules of Professional Conduct, receiving bribes from the Defendant, misleading the Court, criminal offences and other wrongdoing.
[45] As stated above, I granted the motion of counsel for the Plaintiff to be removed as lawyer of record, and I also ordered him to provide a copy of his file to the Plaintiff within three weeks of the date of my endorsement. I denied the Plaintiff’s request for various orders, without prejudice to motions for the same or similar relief being properly brought in the future. I also declined to recuse myself as I found that the Plaintiff had failed to establish a reasonable apprehension of bias.
[46] On November 1, 2021, after receiving written submissions from the parties, I released a costs endorsement ordering the Plaintiff to pay costs on a substantial indemnity basis to her former counsel in the amount of $7,750 within 30 days (2021 ONSC 7229). I stated the following on the issue of the appropriate scale of costs:
In my view, this is a case where substantial indemnity costs are warranted. As set out in more detail in my Endorsement dated September 17, 2021, the Plaintiff ignored and failed to comply with my order dated July 29, 2021 that her responding materials were to be strictly limited to a response to Mr. Besunder’s motion to be removed as lawyer of record and could not seek any unrelated relief. The Plaintiff filed voluminous and improper responding materials that were largely irrelevant to the issues raised on the motion and asked for numerous orders in her favour. Further, the Plaintiff’s materials contained numerous disparaging and vexatious statements and serious allegations against Mr. Besunder and others, including allegations of criminal conduct and professional misconduct that were unsubstantiated.
7. The Plaintiff’s Application for judicial review and motions for leave to appeal
[47] On October 25, 2021, the Plaintiff served a lengthy Notice of Application for Judicial Review of my order dated September 17, 2021. On October 29, 2021, the Divisional Court sent to the Plaintiff a “Notice that Proceedings May Be Stayed or Dismissed” pursuant to Rule 2.1.01 of the Rules of Civil Procedure because the Plaintiff’s application appeared on its face to be frivolous, vexatious or otherwise an abuse of process of the Court. Guidance was provided to the Plaintiff with respect to issues that she should address in response to the notice.
[48] On December 1, 2021, Justice Corbett dismissed the Plaintiff’s application as frivolous, vexatious and an abuse of process (2021 ONSC 7908). He stated the following:
Ms Hordo provided a written response to the R.2.1.01 notice, including fourteen attachments. The response fails to address the concerns raised by the court respecting this application. Therefore, for the reasons that follow, the application is dismissed as frivolous, vexatious and an abuse of process. In addition, the court concludes that Ms Hordo is likely to engage in further vexatious litigation and that her recourse to the courts should be controlled to protect the administration of justice from wasting resources on further vexatious litigation: Ms Hordo may not bring or pursue any proceedings in this court in connection with the claims at issue in her action against State Farm unless either (a) she is represented by a lawyer licensed to practice law in Ontario; or (b) she obtains permission from an administrative judge of the Divisional Court or their designate.
[49] However, Justice Corbett held that the dismissal of the application for judicial review was without prejudice to the Plaintiff bringing a motion for leave to appeal: (a) my decision to refuse the Plaintiff permission to have her father represent her; and (b) my costs order. The time for the Plaintiff to bring such a motion for leave to appeal was extended to January 4, 2022. Justice Corbett expressly cautioned the Plaintiff that “the proceedings below are not stayed pending decision on the motion for leave to appeal.”
[50] The Plaintiff did bring a motion for leave to appeal in the Divisional Court in early January 2022. She also brought a motion for leave to appeal in the Court of Appeal with respect to the order of Justice Corbett dismissing her application for judicial review.
[51] The Plaintiff’s Notice of Motion for Leave to Appeal filed in the Divisional Court is not restricted to the relief set out in Justice Corbett’s order. Among other things, the Plaintiff also seeks “[a] recommendation for the Panel of the Divisional Court to use their inherent jurisdiction to use direct indictment under s. 577 of the Criminal Code of Canada, for fraud, forgery, and uttering.”
[52] In connection with her application for judicial review and motion for leave to appeal in the Divisional Court, the Plaintiff has sent numerous communications to the Divisional Court and my assistant that did not comply with Rule 1.09 of the Rules of Civil Procedure.
[53] The delivery of notices of motion for leave to appeal by the Plaintiff did not trigger an automatic stay and the Plaintiff has not obtained a stay order from the Divisional Court or the Court of Appeal. At the time of the release of this decision, I am not aware of any decision of the Divisional Court or the Court of Appeal with respect to the Plaintiff’s motions for leave to appeal.
8. Subsequent case conferences
[54] A case conference was held before me on November 3, 2021. At that time, I established a timetable for the present motion. We also discussed a motion that the Plaintiff was considering bringing, which appeared to be a motion for partial summary judgment. I included in my endorsement references to case law on this issue for the parties to consider before the next conference.
[55] Another case conference was held before me on December 15, 2021. At that time, we finalized the scheduling and timetable for this motion. I also established a timetable to receive submissions from the parties with respect to the settling of the order removing the Plaintiff’s counsel as lawyer of record, which had not yet been approved by the Plaintiff as to form and content, despite a number of requests.
[56] On December 23, 2021, I issued an endorsement on the issue of the settling of the order, and signed the draft order forwarded to me by the Plaintiff’s former counsel, with one minor change. My endorsement read as follows:
Further to my endorsement dated December 15, 2021, I received from Mr. Besunder, the Plaintiff’s former lawyer, his proposed draft order with respect to: (a) my decision dated September 17, 2021 removing him as lawyer of record, and (b) the related costs decision dated November 1, 2021. Mr. Besunder sent the draft order to my assistant on December 15, 2021 and, as required, he copied Ms. Hordo and counsel for the Defendant. Mr. Besunder advised that the draft order had been approved as to form and content by counsel for the Defendant, but that he had not received any response or comments from Ms. Hordo.
My December 15, 2021 endorsement provided that Ms. Hordo had until 3 p.m. on December 22, 2021 to advise me of her position regarding the draft order by sending an e-mail to my assistant. No e-mail was received from Ms. Hordo.
My endorsement also provided that Mr. Besunder had until 3 p.m. on December 23, 2021 to send me comments in reply. No such comments were received, presumably because Ms. Hordo did not provide any comments regarding Mr. Besunder’s proposed draft order.
I have reviewed the draft order sent by Mr. Besunder. It accurately reflects my decisions and contains the language required by Rule 15.04 of the Rules of Civil Procedure for this type of order. It is a typical order removing a lawyer of record and is not controversial in any way.
However, to reflect the fact that the Plaintiff had 30 days to pay the costs ordered on November 1, 2021, I have changed the date from which the order bears interest.
[57] As of the date of the hearing of this motion, the Plaintiff had not appointed a new lawyer of record or served a notice of intention to act in person.
B. SUBMISSIONS OF THE PARTIES
1. Submissions of the Defendant
[58] The Defendant submits that the action should be dismissed under Rule 34.15(1) for the Plaintiff’s failure to attend an examination for discovery. In the Defendant’s view, the Plaintiff has shown complete disregard for participating in the discovery process required in this litigation, and she was given multiple chances to comply with her discovery obligations. The Defendant argues that, despite making reasonable efforts to have this matter proceed, it has been forced into a holding pattern and has been unable to move the matter forward due to the unreasonable and unacceptable delay caused by the Plaintiff. The Defendant states that it has incurred unnecessary and significant legal costs and suffered prejudice due to the impact that the passage of time has on evidence.
[59] The Defendant also submits that the action should be dismissed for delay under Rule 24.01(1)(c). The Defendant argues that a period of thirteen years from the original accident and eight years from the commencement of the action constitutes an inordinate and inexcusable period of time in and of itself such that it raises a substantial risk that a fair trial will not be able to occur. The Defendant further argues that the Plaintiff and her father have repeatedly demonstrated a disdain and/or disrespect for the court process, including failing to adhere to orders of the Court, and that the accusations contained in the Plaintiff’s materials demonstrate a disrespect for counsel, the court and the administration of justice. The Defendant points out that the Plaintiff is responsible for moving the action along, but it has been the Defendant that has been working tediously to attempt to have this matter progress through the stages of litigation. The Defendant also points out that the Plaintiff has failed to provide: (a) a reasonable explanation for the delay she has caused in moving this matter forward, and (b) convincing evidence that there is no substantial risk that a fair trial is not possible, including evidence that all relevant documents have been preserved, key witnesses are available, and medical evidence of the progress of the injuries is available.
[60] In addition, the Defendant relies on Rule 15.04(9) and argues that the action should be dismissed because of the Plaintiff’s failure to appoint a new lawyer or serve a notice of intention to act in person. It submits that the Plaintiff has been aware that she would need to seek out new counsel as early as September 2020, and that the endorsement removing her former counsel as lawyer of record was released on September 17, 2021. The Defendant states in its Factum that the Plaintiff was served with the formal order removing the Plaintiff’s counsel as lawyer of record on January 15, 2022, but there is no evidence (such as an affidavit of service) before me to this effect.
[61] Finally, the Defendant takes the position, based on Rule 57.03(2), that the action should be dismissed as a result of the Plaintiff’s failure to pay to her former counsel the costs in the amount of $7,750 that were awarded against her on November 1, 2021. There is no evidence in the record before me from the Plaintiff’s former lawyer confirming that the costs have not been paid.
2. Submissions of the Plaintiff
[62] The only affidavit evidence filed by the Plaintiff on this motion consists in an affidavit of her father, Michael Hordo. The Plaintiff’s motion materials, which include some of the materials that she filed in the Divisional Court and the Court of Appeal, contain numerous misleading and inaccurate statements, and some outright falsehoods. The Plaintiff’s materials are voluminous – more than 675 pages. Nevertheless, almost all of her materials are irrelevant to the issues raised on this motion.
[63] The Plaintiff asks that this Court stay further action in this matter until the Divisional Court and the Court of Appeal hear all the motions for leave to appeal that have been brought by the Plaintiff. The Plaintiff also argues that the Defendant should be barred from bringing any motion because they have been in breach of the SABS for more than 13 years.
[64] The Plaintiff’s response to the delay in this proceeding and her failure to attend an examination for discovery is very brief and is summarized as follows in her Factum:
The Defendant, non-insurer, Certas/Desjardins and their lawyers are protesting profusely in their Factum that the Appellant failed to attend examinations on March 24 2016 and March 21 2018. These protestations are without merit as the matter of the collusions between Mr. Besunder and the Defendant’s lawyers, Beard Winter is before the Divisional Court and their criminal conversion of a cost order from another matter, another pleading and file, belonging to another law firm, is currently under investigation and it would be highly improper for this Court to rule on a matter that is now before the criminal authorities. The Plaintiff attended medical examinations including Dr. Wong September 2018 who determined that I was unable to sit to in-person examinations under Oath.
[65] I note that the Wong Letter is not attached to Mr. Hordo’s affidavit filed on this motion. However, it was included in a document entitled “Judicial Review, Compendium and Case Law” that the Plaintiff uploaded onto CaseLines.[^2] The record before me does not include any evidence of the Plaintiff herself regarding her ability to participate in an examination for discovery in 2022. There is also no evidence from a doctor or other health professional regarding the Plaintiff’s ability to participate in an examination for discovery in 2022.
C. DISCUSSION
1. The Plaintiff’s objections based on the pending motions for leave to appeal
[66] I reject the Plaintiff’s submission that the determination of this motion should wait until the final determination of the motions for leave to appeal that are pending before the Divisional Court and the Court of Appeal. The Plaintiff was expressly advised in the endorsement of Justice Corbett that “the proceedings below are not stayed pending decision on the motion for leave to appeal.” Despite this, the Plaintiff has failed to bring a motion for a stay. Further, she has failed to articulate on this motion how she meets the test for a stay.
[67] The issues raised on this motion are different from the issues that are the subject matter of the Plaintiff’s motions for leave to appeal. The delay in this matter has been significant, and the Defendant has been seeking to obtain a determination of the issues raised on this motion since March 2020. I see no valid reason to create additional delay by postponing the determination of this motion and pausing the progress of this action. This is particularly the case given that the bulk of the issues raised by the Plaintiff with respect to my endorsement dated September 17, 2021 have been found by the Divisional Court to be frivolous, vexatious and an abuse of process.
[68] I also reject the Plaintiff’s submission that the Defendant should be barred from bringing any motion because it has allegedly been in breach of the SABS for more than 13 years. The issue of whether the Defendant is in breach of its obligations is the subject matter of this action and cannot be determined on this motion.
2. Dismissal based on the failure to serve a Notice of Intention to Act in Person
[69] In my view, the action cannot be dismissed pursuant to Rule 15.04(9) of the Rules of Civil Procedure for the failure of the Plaintiff to appoint a new lawyer of record or serve a Notice of Intention to Act in Person as required by Rule 15.04(8).
[70] Rule 15.04(9) provides that the court may dismiss the proceeding if a party fails to appoint a new lawyer or serve a Notice of Intention to Act in Person “within 30 days after being served with the order removing the lawyer from the record” [emphasis added]. As stated above, there is no evidence (such as an affidavit of service) before me showing when the order removing the Plaintiff’s counsel as lawyer of record was served on the Plaintiff. Further, I note that since my order removing the Plaintiff’s counsel as lawyer of record, the Plaintiff has been an active participant in the action.
[71] However, the Plaintiff must comply with court orders, including the terms of my order removing the Plaintiff’s counsel as lawyer of record, which has not been stayed. The Divisional Court has not allowed the Plaintiff to bring a motion for leave to appeal with respect to the removal of her counsel as lawyer of record. Consequently, the Plaintiff must either appoint a new lawyer or serve a Notice of Intention to Act in Person forthwith if more than 30 days have elapsed since she was served with the order. If she fails to do so, this factor will be considered by me when the matter comes back before me, as set out below.
3. Dismissal based on the Plaintiff’s failure to pay costs to her former counsel
[72] I also conclude that the action cannot be dismissed based on Rule 57.03(2) for the Plaintiff’s failure to pay the costs in the amount of $7,750.00 that she was ordered to pay to her former counsel on November 1, 2021. As stated above, there is no evidence in the record before me from the Plaintiff’s former lawyer confirming that the costs have not been paid. In addition, the Defendant has not referred me to any case law where an action was dismissed as against a defendant as a result of the plaintiff’s failure to pay costs to a non-party. In my view, the policy and principles underlying Rule 57.03(2) do not squarely apply in a situation where an outstanding costs award is owed to a non-party. Even if Rule 57.03(2) could apply to such a situation, I would decline to grant the drastic remedy of a dismissal in this case given that only one costs award is outstanding and the costs in issue are owed to a non-party. Further, the Plaintiff was allowed to bring a motion for leave to appeal with respect to this costs award and the motion is still pending.
4. Dismissal based on the Plaintiff’s failure to attend an examination for discovery
[73] Under Rule 34.15(1)(b) of the Rules of Civil Procedure, where a plaintiff fails to attend an examination for discovery, the court may dismiss the plaintiff’s action. However, it is rare that a dismissal order is made and, typically, the plaintiff is given a further opportunity to comply with their obligations, i.e. the plaintiff is ordered to attend an examination. The dismissal of a proceeding is regarded as draconian, and courts are reluctant to dismiss a potentially meritorious claim on grounds that do not address its merits. This sanction is reserved for the most extreme cases where the delinquent party has been contumacious or has deliberately flouted the law, and the other party can demonstrate that their ability to prosecute or defend the claim would be prejudiced by the delinquent party being ordered to reattend to be examined. See Gomommy Software.com Inc. v. Blackmont Capital Inc., 2014 ONSC 2478 at paras. 1-2, 50-52, 62 (Div. Ct.).
[74] The discretion to strike a pleading should be exercised as a last resort where warranted in order to protect the integrity of the justice system from abuse by a recalcitrant litigant. See Starland Contracting Inc. v. 1581518 Ontario Ltd., 2009 CanLII 30449 at para. 27 (Ont. Div. Ct.).
[75] In this case, the Plaintiff has suggested that the examination for discovery proceed by way of written questions and answers. She relies on the Wong Letter which states that Dr. Wong recently [in 2018] assessed the Plaintiff and, given “her persistent symptoms along the low back”, he believed that she would not be able to sit through an examination for discovery. The Wong Letter further states that “[t]he extensive sitting that would be required would be a hardship for Ms. Hordo” and “[i]t would be beneficial if she can provide her testimony in writing.”
[76] While the Plaintiff has suggested that the examination for discovery proceed by way of written questions and answers, Rule 31.02(1) only allows for written questions and answers at the option of the examining party: see Mohotoo v Humber River Hospital, 2021 ONSC 4894 at paras. 33-37. Here, the Defendant does not consent to proceeding in writing and, in my view, its position is not unreasonable. In light of the manner in which the Plaintiff has been conducting the litigation and preparing written materials, it is my view that proceeding in writing would be inefficient and create further delay. Among other things, the Defendant would not have the ability to immediately ask follow-up questions in the event of an incomplete or unresponsive answer.
[77] The evidence relied upon by the Plaintiff in support of her position that she is unable to attend an in-person examination for discovery is completely inadequate. In my view, the fact that the Plaintiff has failed to provide affidavit evidence about her ability to attend an examination for discovery is fatal. As for the Wong Letter dated May 14, 2018, it is both inadmissible and insufficient. Dr. Wong did not provide affidavit evidence on which he could have been cross-examined by the Defendant. Further, his letter is short, largely unsubstantiated and unsatisfactory for the purposes of this motion. The letter was written more than four years ago and there is no evidence before me regarding the Plaintiff’s current condition. Moreover, Dr. Wong does not specify in his letter the assumptions on which his letter is based (e.g., how many hours did he think that the examination would last?) and he does not appear to have considered that accommodation could be provided (e.g., frequent breaks, shorter examination periods spread over a few days, etc.).
[78] The Plaintiff has been aware since at least July 2018 that the Defendant’s position is that the Plaintiff has to attend an examination for discovery in person, and that the Wong Letter and other medical evidence are insufficient to justify conducting the Plaintiff’s examination for discovery in writing. Numerous correspondence has been exchanged on this point over the years, and the issue was raised in the motion that was before Master Short and the case conference before Justice Pinto. Despite this, the Plaintiff chose not to include any current evidence of her ability to attend an examination for discovery in person in her motion materials.
[79] As stated above, I have held a number of case conferences via videoconference in this case in which the Plaintiff participated. The Plaintiff also participated in the hearing of this motion, which took place by videoconference. In the absence of any current and admissible medical evidence to the contrary, I conclude that the Plaintiff is able to participate in an in-person examination for discovery, with appropriate accommodation. Thus, I find that the Plaintiff’s refusal to attend an in-person examination for discovery is unjustified.
[80] However, I am of the view that it is not appropriate at this stage to make an order dismissing the action based on the Plaintiff’s failure to attend an examination for discovery. This is the first time that the issue of the Plaintiff’s failure to attend an examination for discovery is being adjudicated. The motion for similar relief previously brought by the Defendant did not proceed before Master Short. Before the instant motion, the Plaintiff’s grounds for not attending an in-person examination for discovery had not been ruled on by a judicial officer, and the Plaintiff had never been formally ordered to attend an examination for discovery. Further, I find that the Defendant has not demonstrated that its ability to defend the claim would be prejudiced by the Plaintiff being ordered to attend to be examined. As set out below, the Defendant’s right to move to dismiss the action for delay after the examination for discovery is preserved.
[81] Thus, I am giving the Plaintiff a last chance to comply with her discovery obligations under the Rules of Civil Procedure. The relevant terms are set out below. If the Plaintiff fails to comply with this “last chance order”, she should expect, in light of the procedural history of this matter, that her action will be dismissed in the absence of exceptional circumstances.
5. Dismissal based on delay
[82] An order dismissing an action for delay is a severe remedy. The plaintiff is denied an adjudication on the merits of their claim. Equally, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant. See Langenecker v. Sauvé, 2011 ONCA 803 at para. 3 (“Langenecker”).
[83] The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits. See 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para. 20.
[84] The power to dismiss an action for delay should not be exercised without giving the plaintiff an opportunity to remedy their default, unless the court is satisfied either that: (1) the default has been intentional and contumelious, or that (2) the inexcusable delay for which the plaintiff or their lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. See Langenecker at para. 5.
[85] The first category of cases (i.e. cases where the default has been intentional and contumelious) refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or their counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s process. These cases usually “feature at least one, and usually serial violations of court orders”: see Langenecker at para. 6.
[86] The plaintiff is responsible for moving the action along: see Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 at para. 18 (“Wallace”). Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional. See Szpakowsky v Tenenbaum, 2017 ONSC 18 at para. 19 (“Szpakowsky”), Berg v. Robbins, 2009 CanLII 85303 at para. 13 (Ont. Div. Ct.) (“Berg”) and Francis v Rego, 2015 ONSC 5546 at para. 14 (“Francis”).
[87] The second category of cases that will justify an order dismissing the action for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay. The following has been said about these three characteristics:
a. The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss.
b. The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. Explanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate. In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole.
c. The third requirement is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay. In addition to the prejudice inherent in lengthy delays, a long delay can cause case-specific prejudice. Inordinate and inexcusable delay in an action gives rise to a presumption of prejudice which the plaintiff has the onus to rebut. It is therefore necessary to consider the evidence presented by the plaintiff on the issue of prejudice and specifically whether the plaintiff has demonstrated that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. If the plaintiff rebuts any such presumption of prejudice, the onus is on the defendant to adduce convincing evidence of actual case specific prejudice resulting from the delay. If the plaintiff fails to rebut the presumption there is no need for the defendant to adduce evidence of actual prejudice.
See Langenecker at paras. 6-12, Szpakowsky at paras. 19, 58, Berg at para. 13-15 and Francis at para. 35.
[88] Courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which includes the discretionary power to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent power of the court to prevent an abuse of its own process. See Wallace at paras. 21-22 and Szpakowsky at para. 19.
[89] Turning to the facts of this case, I am of the view that I should not exercise the power to dismiss the action for delay at this time, without giving the Plaintiff an opportunity to adduce evidence and file submissions that are responsive to the test set out above.
[90] Among other things, the Plaintiff has not adduced evidence on this motion with respect to the delay experienced in this action over the years and any explanation for such delay. For instance, the Plaintiff has not provided any explanation regarding the absence of response to the numerous communications from counsel for the Defendant in 2017-2019 regarding the scheduling of her examination for discovery. Further, the Plaintiff has failed to adduce evidence to rebut the presumption of prejudice based on delay, such as evidence regarding the preservation of documents, the availability of witnesses and the quality of their recollection of events.
[91] The Plaintiff is self-represented and may not have understood that she had the onus to explain the delay in this matter, as well as the burden to rebut the presumption of prejudice. While the issue of the Plaintiff’s attendance at an examination for discovery in person has been front and center in this action for a long time, the issue of delay is not articulated in detail in the Defendant’s Notice of Motion. In fact, the list of orders sought in the Notice of Motion does not include a separate paragraph asking for the dismissal of the action for delay. Instead, delay is referred to in the same paragraph as the paragraph seeking a dismissal of the action based on the Plaintiff’s failure to attend an examination for discovery, which is based on a different Rule of Civil Procedure. This may have created confusion on the part of the Plaintiff when she prepared her responding evidence. I note that the motion brought in 2020 was also focused on the Plaintiff’s failure to attend an examination for discovery.
[92] Based on the foregoing, I find that it would not be appropriate to dismiss this action purely based on the absence of evidence and explanation by the Plaintiff. Given the seriousness of the relief sought, the Plaintiff should be given the opportunity to provide a substantive response.
[93] In light of the delay in getting a motion date and my conclusion above that the Plaintiff should be ordered to attend an examination for discovery, I conclude that the best course to follow in this action is for the examination for discovery to take place first, and to preserve the right of the Defendant by adjourning its motion to dismiss the action for delay until after the examination for discovery. If the Plaintiff fails to attend an examination for discovery, a motion to dismiss for delay may not be necessary as the action may be dismissed on grounds other than delay. If the Plaintiff does attend an examination for discovery and the Defendant still wishes to pursue its motion to dismiss for delay, a case conference can be held to establish a timetable for the delivery of additional materials. The issue of prejudice should be clearer at that time and, based on this endorsement, the Plaintiff would then be aware of the kind of evidence that she needs to adduce in order to address the applicable legal test.
[94] As a result, I adjourn the Defendant’s motion to dismiss the action for delay to a case conference to be held before me after September 30, 2022, i.e. the deadline set out below for the examination for discovery of the Plaintiff to take place.
D. CONCLUSION
[95] The Defendant’s motion is granted, in part.
[96] I order the following with respect to the Plaintiff’s examination for discovery:
a. The Defendant will send to the Plaintiff a list of outstanding documents to be produced by July 4, 2022. I note that, contrary to the submissions made at the hearing, the correspondence between the parties reflects that the Plaintiff has served an affidavit of documents, but a copy of all Schedule “A” documents may not have been provided. Further, given the time that has elapsed since the preparation of the affidavit of documents, additional relevant documents may exist.
b. The Plaintiff is to produce all relevant documents that are in her possession, control or power and that have not been already provided to the Defendant by August 26, 2022. If the Plaintiff has to request documents from third parties, such requests should be made as soon as possible so that the documents are obtained by August 26, 2022. The failure to produce all relevant documents in a timely fashion may necessitate multiple attendances by the Plaintiff to complete her examination for discovery. Therefore, it is in the interest of the Plaintiff to produce all relevant documents as soon as possible.
c. The parties are to have discussions as soon as possible regarding reasonable accommodations to be provided to the Plaintiff during her examination for discovery (e.g., frequency of breaks, etc.). If the parties cannot agree, a case conference is to be scheduled before me before the end of August 2022 so that I can rule on the appropriate accommodations to be provided. Disagreements between the parties with respect to accommodations will not justify delaying the examination for discovery of the Plaintiff, and the Plaintiff will not be allowed to reargue the issues raised on this motion when the issue of accommodations is discussed.
d. The examination for discovery of the Plaintiff is to take place by September 30, 2022.
e. If the Plaintiff fails to attend her examination for discovery, the Defendant may contact my assistant to request a case conference to schedule a motion to dismiss the action.
[97] The Defendant’s motion to dismiss the action for delay is adjourned to a case conference to be held before me after September 30, 2022.
[98] The balance of the Defendant’s motion is dismissed, without prejudice to the Defendant bringing a similar motion at a later date, if the appropriate conditions apply.
[99] If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than four pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Plaintiff shall deliver her responding submissions (with the same page limit) within 14 days of her receipt of the Defendant’s submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.
[100] The Plaintiff argues in her materials that the Defendant abandoned its motion before Master Short, and she complains that the costs of that motion have not been dealt with. The motion that was before Master Short was not abandoned. Rather, it was adjourned to the Case Management Judge to be appointed by Justice Myers. Further, the adjournment was in large part due to the conduct of the Plaintiff’s father prior to the motion. As set out above, the Defendant was not able to proceed with its motion until now, as the issue of the Plaintiff’s representation by her counsel had to be dealt with first. Given everything that has occurred since March 2020, new motion materials were required so that the Court could have a complete picture of the status of this action. However, the relief sought by the Defendant on both motions was substantially the same. If the parties cannot agree on costs, I invite them to include submissions regarding the costs of the motion before Master Short in their costs submissions (within the page limit indicated above).
[101] At this stage, however, I am only going to deal with the costs of this motion and the motion that was before Master Short. I reject the Defendant’s request to deal with the costs related to the various case conferences. These costs are not costs of the motion and they can be addressed as part of the costs of the action.
Vermette J.
Date: June 20, 2022
[^1]: The Defendant also seeks in its Notice of Motion an order that the Plaintiff must be represented by a lawyer in good standing with the Law Society of Ontario for the duration of this proceeding. However, this request is not discussed in any detail in the Defendant’s Factum. In my view, it would be inappropriate for me to deal with this issue at this time given that the issue of the Plaintiff’s representation by her father, a non-lawyer, is currently before the Divisional Court as part of the Plaintiff’s motion for leave to appeal filed earlier this year.
[^2]: The same document, i.e. “Judicial Review, Compendium and Case Law”, also includes a report of Dr. Wong dated September 26, 2018, but, contrary to the Wong Letter, this report does not directly address the Plaintiff’s ability to attend an examination for discovery.