Court File and Parties
COURT FILE NO.: CV-15-528168-00A1 DATE: 20220627
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Reza Lotfizadeh, Plaintiff AND: John Doe, Unifund Assurance Company, Maurice Chabot and Gertrude Mourant, Defendants AND: Reza Shirani, Jane Doe, 123 Taxi Company, 123 Taxi Dispatcher, and Khaled Mozahar, Third Parties
BEFORE: D.A. Wilson J.
COUNSEL: Trevor J. Buckley, for the Defendant, Unifund Assurance Company Jason Frost, for the Third Parties, Reza Shirani and Khaled Mozahar
HEARD via Videoconference: June 22, 2022
ENDORSEMENT
1This is a claim for damages arising out of 2 motor vehicle accidents; the first occurred in 2013; and the second in 2014. In the 2013 accident the Plaintiff alleges he was struck by a taxicab; the owner of the taxi, Shirani, asserts that he leased his taxi and plate to the Third Party Mozahar (“Mozahar”), who denies he was the driver on the date of the accident. As a result, the Plaintiff’s own insurance company, Unifund, was added as a Defendant pursuant to its coverage for uninsured claims. The action was commenced in 2015; notwithstanding the passage of time, very little has transpired and the case is nowhere near being ready for trial. The fault for the current state of affairs lies squarely at the feet of counsel, all of whom specialize in personal injury actions.
2By way of a brief background, this action appeared in trial scheduling court in 2021 and counsel sought to fix a trial with a length of 21 days. I fixed a trial date for November 2022 and I convened a case conference to determine why so much trial time was needed. During the course of discussions with counsel, I learned that the Plaintiff had failed to serve expert reports; the Defendant had undertaken no defence medical examinations.
3I was advised that the examination for discovery of the Third Party, Mozahar had not taken place despite having been arranged multiple times. I issued an order on June 24, 2021 requiring Mozahar attend for an examination for discovery within 60 days of the date of my order failing which counsel for Unifund could bring a motion to strike his Statement of Defence.
4Counsel contacted me recently and advised the discovery had not taken place. I directed counsel to file formal motion materials with a return date before me of June 22, 2022. That was done and I heard submissions from counsel.
Positions of the Parties
Unifund
5The moving party notes that Mozahar was served with 5 notices of examination for discovery and he has failed to attend. He has not provided a sworn affidavit of documents. If his counsel has had difficulty getting in contact with him, there has been ample time for counsel to bring a motion to be removed from the record or take whatever steps were necessary. He has not complied with my order and his defence should be struck.
The Third Parties
6Counsel submits that they have attempted to contact Mozahar numerous times but he has failed to respond. There was some contact last summer but he did not attend the scheduled discovery in August 2021 that was arranged after my Order was made. Counsel submits the order sought is drastic and would be unfair in the circumstances.
Analysis
7Much of the affidavit filed in response to this motion is irrelevant and fails to address the issue that is before the Court. It is clear that going back to 2017, Mozahar has been advised of the examination for discovery date and has failed to attend. If the insurer wished to bring a motion to be removed from the record for Mozahar, that could have been done years ago. If the insurer wished to add itself as a statutory Third Party due to the failure of Mozahar to cooperate in the defence, that could have been accomplished years ago as well.
8Counsel is aware that their insured must attend for an examination for discovery. If there is uncertainty about where Mozahar resides and whether he has received correspondence from the law firm, counsel ought to have retained a private investigator to ascertain the address of Mozahar. Why that was not done a year ago after my order requiring the discovery of Mozahar within 60 days has not been explained. Mr. Frost suggests that I indicated at the June 2021 case conference that the Third Party could not bring a motion; that is incorrect. I made no such order.
9In the affidavit filed by the Third Parties, the solicitor deposes that “it is possible [Mozahar] no longer resides at the address the law firm has on file for him”. That is obvious and was obvious back in 2017. It was incumbent on counsel to make further investigations to ascertain where the insured was/is residing, and this was not done. The affidavit is notable for the fact that it completely fails to address why Mozahar has failed to attend discovery or what the proposed plan is moving forward.
10The fact that counsel would attend trial scheduling court seeking a trial date in these circumstances is incomprehensible. It sounds as if nothing has transpired on this action since my case conference a year ago; it appears no expert reports have been delivered and this case is no closer to being ready for trial or ready for settlement discussions than it was in June 2021. It is perplexing to me why clients are willing to accept such a glacial pace of moving an uncomplicated action forward either to resolution or to trial.
Order
11Counsel for the Third Party Mozahar is to produce him for discovery before August 30, 2022. They are directed to retain an investigator forthwith to locate him. In the event that Mozahar cannot be produced for a discovery, counsel are to bring a motion for removal as counsel of record. Counsel for Unifund may renew its motion to strike the defence of Mozahar. Today’s attendance was necessitated by the failure of counsel for the Third Parties to deal with the issue of the non-attendance of Mozahar on numerous occasions. Unifund is entitled to costs of today which I fix at $1,000 payable by the Third Parties to Unifund forthwith.
Date: June 27, 2022