COURT FILE NO.: CV-14-512464
MOTION HEARD: 20211019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: YLLKA DACI, Plaintiff
AND:
1062204 ONTARIO INC. o/a AUTO SHOW PLACE and R. SERPA AUTO SERVICE INC., Defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
APPEARANCES:
R. Zatzman Stein and M. Dunk, Counsel for the Moving Party / Defendant R. Serpa Auto Service Inc.
M. Fan, Counsel for the Moving Party / Defendant 1062204 Ontario Inc. o/a Auto Show Place
Yllka Daci, self-represented Plaintiff
HEARD: 19 October 2021
REASONS FOR DECISION
[1] These are two companion motions by the Defendants seeking an order dismissing this action due to delay. In the alternative, the Defendants seek an order dismissing the action due to the failure of the plaintiff, Yllka Daci (“Ms. Daci”), to comply with the order of Master Abrams (as she was then titled) dated January 24, 2019, the order of Master Muir dated August 28, 2019, the order of Master Wiebe (as he was then titled) dated May 13, 2021, and my orders dated June 21, 2021 and July 30, 2021. In the further alternative, the Defendants seek an order dismissing the action for Ms. Daci’s failure to deliver answers to undertakings.
[2] For the reasons that follow, the motions are granted and the action is dismissed.
BACKGROUND
[3] The Plaintiff’s action arises from a single motor vehicle accident that allegedly occurred on November 17, 2012.
[4] The Statement of Claim was issued on September 16, 2014 and an Amended Statement of Claim was issued on October 19, 2015. In the Amended Statement of Claim, Ms. Daci alleges that she purchased a defective vehicle from the Defendant 1062204 Ontario Inc. o/a Auto Show Place (“Auto Show”) and that Auto Show was negligent in selling her an unsafe vehicle. She also alleges that the Defendant R. Serpa Auto Service Inc. (“Serpa”) failed to inform her that her vehicle was not in a good state of repair and failed to advise her that driving the vehicle without repair was dangerous.
[5] Serpa served its Statement of Defence and Crossclaim on January 5, 2016. Auto Show served its Statement of Defence and Crossclaim on March 10, 2016.
[6] Ms. Daci was examined for discovery on January 26, 2017, at which time she gave twenty‑three undertakings and took one question under advisement, which is now a refusal. Twenty undertakings remain outstanding.
[7] Throughout 2017, the Defendants wrote to the Plaintiff on seven occasions requesting that she provide answers to her undertakings.
[8] On February 12, 2018, Ms. Daci’s former counsel was removed as her lawyer of record by order of Master McAfee (as she was then titled). On June 21, 2018, the Defendants brought a motion to dismiss the action for delay and for the Plaintiff’s failure to appoint new counsel or deliver a notice of intention to act in person. After three motion appearances, including two adjournments, Ms. Daci served a notice of intention to act in person on September 18, 2018.
[9] Despite multiple further requests by the Defendants, Ms. Daci failed to answer her undertakings. On January 24, 2019, the Defendants brought a motion to compel Ms. Daci to answer her undertakings. Master Abrams (as she was then titled) ordered that Ms. Daci answer her undertakings by May 31, 2019 (the “January 2019 Order”).
[10] Ms. Daci failed to comply with the January 2019 Order. On August 28, 2019, the Defendants brought a motion to dismiss the action for delay and for the Plaintiff’s failure to comply with the January 2019 Order. Master Muir granted Ms. Daci “one further opportunity” to comply with January 2019 Order and set a deadline of January 31, 2020 for Ms. Daci to do so (the “August 2019 Order”).
[11] Ms. Daci did not answer the undertakings as required by the January 2019 Order and the August 2019 Order.
[12] Between October 14, 2020 and April 13, 2021, the Defendants sent multiple letters and emails to Ms. Daci advising her that she remained in breach of the August 2019 Order. Ms. Daci was advised of the Defendants’ intention to bring another motion to dismiss her claim and the Defendants attempted, without success, to obtain her availability for motion dates. The motion was ultimately scheduled for May 13, 2021.
[13] By the May 13, 2021 return date for the motion to dismiss the action, Ms. Daci had still failed to provide answers to the outstanding undertakings. On May 13, 2021, the motion proceeded before Master Wiebe (as he was then titled). Ms. Daci did not appear.
[14] In his May 13, 2021 endorsement (the “May 13, 2021 Endorsement”) Master Wiebe (as he was then titled) adjourned the motion and ordered that Ms. Daci appear at the next motion, provide an explanation corroborated by evidence to explain her inordinate delay in complying with her undertakings, and provide a short timetable for her compliance with the outstanding undertakings. His endorsement also provided that a failure to comply with any timetable to be set or any of aspect of the order would result in the action being dismissed, and it described the order as peremptory and a “last chance” order.
[15] On May 18, 2021, Serpa wrote to Ms. Daci enclosing an Amended Notice of Motion and advising that the motion has been adjourned to June 21, 2021. Ms. Daci was provided with the Zoom coordinates for the motion by the Defendant Auto Show on June 17, 2021 and was reminded of the motion date by the Defendant Serpa on June 20, 2021.
[16] Ms. Daci did not appear at the return of the motion on June 21, 202, which proceeded before me. Although she had not complied with the conditions ordered in the May 13, 2021 Endorsement, I adjourned the motion for a second time. My June 21, 2021 endorsement included the following:
[9] Ms. Daci has been given numerous chances to take steps to comply with existing orders of the court and she has repeatedly failed to do so over a prolonged period of time. This includes the "one last opportunity" given to her by Master Muir in August 2019 and the "further 'last chance'" provided on May 13, 2021 by Master Wiebe. Ms. Daci has had ample notice of the defendants' intentions to seek an order to have her action dismissed and she remains in breach of orders of this court. She failed to appear on May 13, 2021 and she failed to appear again today. However, after the matter was heard and prior to release of this endorsement, each of the counsel who appeared today received email correspondence from Ms. Daci’s email address. (Counsel are commended for bringing these emails to the Court’s attention promptly.) The emails indicate that they were not written by Ms. Daci. One begins “Please be advised that Ms. Daci is very sick to continue with her case. She is getting a little better but needs time to recover. She has a bunch of letters from lawyers, unopened.” The second email begins: “This is Ms. Daci's cleaner. I come to help her twice monthly, she's still very sick and paralysed from a stroke. She has a bunch of letters not opened from your office. She gets very sick and upset when you continue to pressure her. Is her interest to continue her case.”
[17] In light of the belated communication sent on behalf of Ms. Daci, I ordered that Ms. Daci or someone on her behalf appear at the next return date for the motion. As well, reiterating what had been ordered on May 13, 2021, I ordered that she provide an explanation corroborated by evidence that explains her inordinate delay in complying with her undertakings and a short timetable for her compliance with the outstanding undertakings, and that a failure to comply with any timetable set would result in the action being dismissed. My endorsement also provided that the order was peremptory on Ms. Daci and urged her to comply with the “last chance” order.
[18] The return of the motion proceeded before me on July 30, 2021. Ms. Daci attended the motion by Zoom (with a video connection). My July 30, 2021 endorsement provided as follows:
This is further to my endorsements dated June 21, 22 and 25, 2021. At the motions today, Ms Daci appeared by Zoom. She typed many messages into the chat on Zoom which indicate that she is both able to communicate and that she is responding to specific questions and comments that are being made during the Zoom motion. Her chat messages indicate that she has a number of health problems and an inability to speak. She also says that she has already answered the outstanding undertakings, but counsel for the defendants advise that only a limited number of undertakings have been answered. Given that Ms. Daci has appeared today and has expressed a continued interest in pursuing her action, I am not prepared to dismiss the action today. I am ordering Ms. Daci to answer the outstanding undertakings within 45 days of today and provide counsel with signed authorizations to the Ministry of Health and Long-Term Care and the Toronto Eye Clinic, as well as her automobile insurer, TD Insurance, within that time frame. Ms. Zatzman Stein's office will send the required authorizations by both email and regular mail. All parties will appear before me for a telephone case conference on September 17, 2021 at 10:00am at which point I will assess compliance with today's Order and the previous Orders of the Court. The motions are adjourned to a date to be set at the September 17, 2021 case conference.
[19] The Defendant Serpa delivered the required authorizations to Ms. Daci on August 3, 2021 and again on August 19, 2021. On September 13, 2021, Ms. Daci sent an email to Serpa’s counsel indicating that she had sent the outstanding undertakings and signed authorization forms in the pre‑paid envelope that had been provided by Serpa, and advised that she would not be attending the case conference. Counsel for Serpa responded and urged Ms. Daci to attend the case conference or to have a representative attend on her behalf.
[20] Ms. Daci did not attend the telephone case conference on September 17, 2021. My endorsement from the September 17, 2021 case conference provides, in part, as follows:
Ms. Zatzman Stein provided an update on events since the July 30, 2021 attendance. She advised that her office had forwarded the required authorization forms to Ms. Daci twice since the July 30 appearance but has not received back any signed copies from Ms. Daci, nor has Ms. Daci provided any answers to undertakings as required by my July 30, 2021 Order. Ms Zatzman Stein indicated that on September 13, 2021, the deadline provided in the July 30, 2021 Order, Ms. Daci sent her an email that reads as follows:
It is two weeks now since I mailed you undertakings in your prepaid envelopes and not confirmation received. I do not want to experience the same falsification as with the outstandings [sic] of May 30th 2019 which are proved to be sent and you denied. Please send confirmation within the limit date.
September 13th, 2021 3;47 P.M
In addition, I am notifying you that I am not participating in the Conference of September 17th, it is not fair to do it in unfavourable conditions of being nonverbal and writing with one hand, as the leftone [sic] is paralysed, besides being in constant pain. I am undergoing treatment and many tests. I will notify the Masters about my conditions. It was not your forcing that I participated last time but the respect and appreciation for Masters time.
Regards,
Yllka Daci
(647)648 8250
September 13th, 2021 3:52pm
[21] At the Case Conference, the Defendants, once again, sought a dismissal of the action or alternatively asked for a date on which their motions to dismiss could proceed. I was not prepared to dismiss the action at the September 17, 2021 case conference and scheduled the return of the motion for October 19, 2021.
[22] Ms. Daci did not file any responding record prior to the return of the motion on October 19, 2021. She did deliver a letter to the court dated September 12, 2021 with certain attachments that she says are responsive to certain of the undertakings.
[23] Ms. Daci appeared at the October 19, 2021 motion. She attempted, without success, to join the Zoom meeting by video but was able to join by telephone. She was advised of all of those in attendance. She was able to communicate with the court and make submissions. She spoke clearly and forcefully.
[24] Ms. Daci confirmed that she had received materials from the Defendants’ counsel both by mail and by email. She indicated that she reviewed only some of the materials due to health issues. She was clearly able to hear the submissions of counsel for the Defendants as she interrupted them on numerous occasions where she wished to express a different view, and she had no difficulty communicating with the Court Registrar or me during the hearing of the motion. At the outset of the hearing, Ms. Daci advised that someone was with her and that the person had assisted her with certain paperwork. However, that person did not wish to identify themself for the record and Ms. Daci advised that they left her place of residence and did not participate in the hearing.
[25] At the October 19, 2021 hearing of the motion, counsel for the Defendants advised that they had not received a copy of Ms. Daci’s September 12, 2021 letter, and the Registrar provided each of them with a copy of it.
ISSUES
[26] The issues on this motion are as follows:
a) Should the Plaintiff’s claim be dismissed in its entirety for delay pursuant to Rules 24.01 and 48.14?
b) Should the Plaintiff’s claim be dismissed in its entirety for failure to comply with an interlocutory order pursuant to Rule 60.12(b)?
c) Should the Plaintiff’s claim be dismissed in its entirety pursuant to Rule 30.08(2) for failure to answer undertakings that include production obligations?
LAW AND ANALYSIS
(i) Should the action be dismissed for delay?
[27] Rule 24.01(1) provides that the Court may dismiss an action for delay where, among other things, a plaintiff has failed to set the action down for trial within six months after the close of pleadings. Rule 24.01(2) provides, in conjunction with Rule 48.14, that a Court shall dismiss an action for delay if the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. The Court also has inherent jurisdiction to dismiss an action for delay in order to prevent an abuse of the Court’s process.[^1]
[28] An Order dismissing an action for delay is justified where the delay is (1) inordinate, (2) inexcusable, and (3) prejudicial to the defendant such that it gives rise to a substantial risk that a fair trial of the issues will not be possible.[^2] In considering these factors, the case law has outlined the following general principles:
a) The assessment as to whether a delay is “inexcusable” requires an examination of the reasons for it; an explanation for the delay must be “reasonable and cogent” or “sensible and persuasive”.[^3]
b) Delay is assessed by considering the delay in its global context.[^4]
c) Inordinate delay creates a presumption of prejudice. “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 defendants flowing from that delay”.[^5]
d) The burden lies on the plaintiff to rebut the presumption of prejudice, and there is no onus on defendants to lead evidence of actual prejudice.[^6]
e) Plaintiffs are responsible for moving an action along in a responsible manner and defendants have a legitimate interest in the timely resolution of disputes and the avoidance of mounting legal costs.[^7]
f) While an order dismissing an action is a severe remedy, especially in an action involving a self-represented party, prejudice to the defendants cannot be ignored.[^8]
[29] The Defendants submit that the length of Ms. Daci’s delay is inordinate and that Ms. Daci has not rebutted the presumption of prejudice. The alleged accident occurred in November 2012. Over seven years have elapsed since the commencement of the action. More than four years have passed since the Plaintiff was examined for discovery, and there has been no progress in the action since that time. There is no plan put forward by the Plaintiff to move the action ahead. Indeed, that remains blocked by the Plaintiff’s failure to provide answers to the undertakings given at her January 2017 examination for discovery. The Defendants also refer to the May 13, 2021 Endorsement that describes the delay as inordinate, a sentiment I echoed in my June 21, 2021 endorsement.
[30] The Defendants also submit that Ms. Daci’s delay is inexcusable. To date the only explanation Ms. Daci has provided is her assertion that she has health complications that prevent her from diligently pursuing the litigation. The May 13, 2021 Endorsement and my June 21, 2021 endorsement both required Ms. Daci to provide corroborating evidence for these assertions, which she has not done. It is true that the materials delivered to the Court prior to the hearing of the motion (which were marked as Exhibits A to C for identification) reference certain of Ms. Daci’s medical reports. However, even putting aside that those reports are not properly in evidence, they are dated and insufficient to support Ms. Daci’s contention that her inability to move the litigation forward is a result of health issues. Ms. Daci has had a fair opportunity (since May 2021) to provide corroboration – even through a simple doctor’s note – about her current and recent medical condition, but she failed to do so. In this regard, and in contradiction to Ms. Daci’s claims of incapacity, I note that Ms. Daci attended the June 21, 2021 hearing by Zoom and communicated through the chat function. Since the May 13, 2021 hearing date, Ms. Daci has corresponded with the Defendants’ counsel by email. She wrote to the court (Exhibits A-C). She attended the hearing on October 19, 2021 and spoke forcefully. She was clearly able to follow the submissions of counsel for the Defendants and, on numerous occasions, she had to be reminded not to interrupt and to wait for her turn to speak. The same was the case during the June 21, 2021 hearing during which she sent numerous texts in response to submissions by the Defendants’ counsel. Her correspondence indicates that she has obtained assistance from friends and others, including someone from a legal aid clinic. In short, I find that when Ms. Daci wishes to be heard, she takes the time and makes the effort to do so. Even accepting that there may be days where it is more difficult or impossible for her to respond or communicate, this does not excuse the months that have passed in failing to comply with the order in the May 13, 2021 Endorsement and my subsequent orders.
[31] It has now been seven years since the action was commenced and almost five years since the Plaintiff’s examination for discovery. In order for this inordinate delay to be excused, the Plaintiff must offer a “sensible and persuasive” explanation to the court. Although there have been brief periods of activity in this action since Ms. Daci’s lawyer was removed as her lawyer of record in February 2018 (such as serving a notice of intention to act in person in 2018 and answering three undertakings in 2019), the delay has to be considered in a global context, and Ms. Daci’s occasional periods of limited activity do not excuse the overall delay.[^9]
[32] It is the Plaintiff who has (or has access to) the documentary evidence with respect to the alleged accident and the damages she claims to have suffered. That evidence is the subject of the undertakings that remain unanswered. Further, in addition to the missing documentary evidence, witness evidence will have to be called at trial. The alleged events which gave rise to the action occurred nine years ago and the memory of the defence witnesses has undoubtedly eroded. The parties are at least a few years away from a trial date even if the action were to move ahead promptly from this point forward, and there is no indication of a commitment or a plan by the Plaintiff to do so. I accept the Defendants’ submissions that this prejudices their right to a fair trial.
[33] I also accept the Defendants’ submission that, absent tangible steps to move the action forward, Ms. Daci’s expression of interest in pursuing the litigation is an “extremely weak” explanation that should not be considered persuasive by the court.[^10] Further, Ms. Daci has failed to meet the burden of demonstrating that the Defendants have not been prejudiced by her delay.[^11]
[34] I am mindful of the fact that Ms. Daci is self-represented, which she made reference to several times at the hearing. That being said, in my view, Ms. Daci has been afforded many indulgences and accommodations to answer the undertakings given at her examination for discovery and, more generally, with respect to this motion and her obligation to move this action forward. She has failed to do so, and she has failed to provide a reasonable explanation for the delay.[^12] Since Ms. Daci’s examination for discovery in January 2017, she has taken no meaningful steps to meet her obligation to advance the action. Despite the numerous indulgences provided by the Defendants and the accommodations referred to above, Ms. Daci remains in breach of several orders to answer undertakings, including two “last chance” orders.
[35] As the Court of Appeal has held:
There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A Court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it.[^13]
[36] In summary, it is my view that Ms. Daci’s delay has been inordinate and inexcusable, and Ms. Daci has failed to demonstrate that the Defendants have not been prejudiced by the delay. This gives rise to a substantial risk that a fair trial of the issues will not be possible. Given the history of this action, and considering the delay from a global perspective, the action should be dismissed for delay pursuant to Rule 24.01 and the Court’s inherent jurisdiction.
(ii) Should the action be dismissed for failure to comply with prior Court Orders?
[37] Rule 60.12(b) of the Rules provides that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction, dismiss the party’s proceeding. A party seeking to belatedly comply with an order must establish: (1) an acceptable explanation for the delay, and (2) that the opposite party will not suffer non-compensable prejudice if the action is allowed to proceed.[^14]
[38] For the reasons outlined above, I find that Ms. Daci has not provided an appropriate explanation for the delay and that the delay has resulted in non-compensable prejudice to the Defendants.
[39] Although there is a reluctance to dismiss an action without an adjudication of the merits of the claim, the case law also recognizes that enforcement of interlocutory orders “is of overriding concern for the courts in ensuring the administration of justice and in upholding the integrity of the justice system. Failure to ensure compliance with court orders in the course of litigation is ‘corrosive of the entire justice system.’”[^15]
[40] In Rana, Dunphy J. summarized the principles that guide the exercise of the court’s discretion to dismiss an action for non‑compliance with an interlocutory order, which include including the following:
a) Where there has been non-compliance with an interlocutory order, the court should be alive to the possibility that its process is being abused. Failing to act may deprive the moving party of justice according to law and risk rendering the court a “paper tiger” and its orders devoid of meaning.
b) The right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court.
c) Self-represented litigants, while entitled to some accommodation and assistance to ensure a fair hearing, are not entitled to abuse the system or the party opposite.[^16]
[41] I am mindful that not all self-represented litigants face the same challenges, and that the type of accommodation and assistance that is appropriate will vary from case to case. In this regard, I do not find the Plaintiff in this case to be a litigant who is intentionally abusive of the court process, who thumbs her nose at the court and the civil justice system, or who is a vexatious litigant. Nor do I find that Ms. Daci is the type of self-represented litigant who the court described in Heffernan as “an extremely savvy and experienced self-represented litigant who has successfully ‘ragged the puck’ in this litigation for over eight years….and demonstrated a high degree of familiarity with the rules of civil procedure and the substantive law relating to this action and the defendants’ motion.”[^17] Nevertheless, I find that the following principles are apt in the circumstances and I apply them in my analysis that leads me to conclude that this action should be dismissed pursuant to Rule 60.12(b) based on the Plaintiff’s breach of prior interlocutory orders:
Self-represented litigants are entitled to be heard with respect and to be positively assisted by counsel opposite and the judge to ensure that all litigants have a full and fair opportunity to put their cases before the court. Some lament that judges at times appear to bend over backwards to protect self-represented litigants to the point of unfairness to represented parties opposite. It is important to draw a line. All parties, self-represented or not, are entitled to a fair hearing at a fair day in court. Self-represented parties can, at times, require assistance to understand the process and legal rules so as to avail themselves of their entitlement to the fair hearing assured to all litigants. They are entitled to this assistance and both the court and counsel opposite are bound to provide it to ensure a fair hearing. But no party, whether self-represented or not, it is entitled to abuse the system or the party opposite.
Treating all litigants with respect and ensuring that all have an opportunity to have a fair hearing does not include excusing abusive conduct such as repeated breaches of court orders. To the contrary, ensuring a fair hearing and a fair process requires the even-handed application of the Rules and the enforcement of court orders for all parties. The Rules are broad enough that their interpretation and enforcement can and should take into account whether a party has legal representation where that issue is relevant to promote a fair hearing in the circumstances. However, once a determination under the Rules results in an order of the court, it is only fair for the orders to be seen as binding and to be enforced with an even hand regardless of the parties’ representation. The self-represented party’s status would be taken into account in the hearing that led to the order being made if appropriate… But once orders are made, a failure to enforce orders against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system.[^18]
[42] In this regard, the evidence indicates that the Defendants have treated Ms. Daci with respect and positively assisted her where possible. As noted above, numerous accommodations have been made for Ms. Daci and the prior orders in issue have factored in that she is a self-represented plaintiff. With Ms. Daci’s self-represented status having been taken into account at the hearings that led to the orders in question, I adopt Justice Myers’ reasoning that a failure to enforce such orders would be unfair to the Defendants in this case and would undermine the civil justice system.[^19]
[43] In coming to the conclusion that a dismissal order pursuant to Rule 60.12(b) is warranted, I am also mindful that Ms. Daci’s conduct may not have risen to the same level as that seen in certain of the other cases in which such orders have been made. For example, the Court of Appeal upheld the dismissal of an action pursuant to rule 60.12 due to a party’s “persistent and deliberate failure to comply with court orders requiring him to fulfill his disclosure and production obligations.”[^20] Similarly, the Divisional Court upheld the dismissal of an action because the court concluded that the plaintiff had shown “utter disregard” for orders of the court and “it would be unfair to require the defendant First Born to continue to incur costs defending the action.”[^21]
[44] Nevertheless, I find that Ms. Daci’s repeated assertion that she has answered her undertakings based on materials delivered to the Defendants in 2016 and 2017 fly in the face of the findings in the January 2019 Order and the August 2019 Order that Ms. Daci has not complied with her discovery obligations and has failed to answer the undertakings she gave in January 2017. Further, Ms. Daci made numerous submissions accusing the Defendants’ counsel (and certain non-parties) of lies and deception. Those submissions are unsupported by any evidence, and I do not accept them. Rather, as noted above, the evidence is that the Defendants’ counsel have attempted to assist Ms. Daci where possible and have been appropriately accommodating given her status as a self-represented litigant.
[45] For the reasons outlined above, I find that it is appropriate in the circumstances for me to exercise my discretion to dismiss this action pursuant to Rule 60.12.
(iii) Should the action be dismissed for failure to comply with production obligations?
[46] Rule 30.08(2)(b) permits a court to dismiss a plaintiff’s action where there has been a failure to comply with the production obligations under the Rules. In exercising the court’s discretion under rule 30.08(2), the following factors are assessed: (a) whether the party has had a reasonable opportunity to cure the non‑compliance; (b) consideration of the “common sense” factors; (c) the merits of the claim; and (d) whether dismissal of the action is a proportional remedy.[^22]
[47] The Defendants submit that the Plaintiff’s action should be dismissed based on the above principles. Specially, they submit that:
a) Ms. Daci has had a reasonable opportunity to cure her non-compliance as she has had over two years since the January 2019 Order and the August 2019 Order to answer her undertakings that include production obligations, and there have been two further “last chance” orders provider her with additional time to do so.
b) The common sense factors support dismissal. In particular, Ms. Daci remains in the same degree of default as she has been for nearly two years, has no reasonable explanation for her default, and has demonstrated that she cannot credibly commit to curing the default.
c) The merits of Ms. Daci’s claim are modest at best, and in any event her continual unexplained delay limits the role of this factor.
d) Dismissing the action is proportionate in the circumstances of this case because Ms. Daci’s conduct has substantially increased the Defendants’ costs of litigating the action, and there is no credible explanation for Ms. Daci’s conduct or any reason to believe that she will diligently advance the action going-forward.
[48] In view of my conclusion that this action ought to be dismissed for delay pursuant to Rule 24.01, the court’s inherent jurisdiction, and Rule 60.12, I need not determine whether Ms. Daci’s failure to comply with her production obligations rises to level of non-compliance that would support the dismissal of the action pursuant to Rule 30.08(2)(b) alone. However, as is apparent from my reasons above, Ms. Daci’s failure to answer her undertakings (which include production obligations) has had a material impact on the progress of the action and caused delay that warrants dismissal of the action pursuant to Rule 24.01 and the court’s inherent jurisdiction, and it is one of the reasons why I have concluded that the action should be dismissed for failure to comply with prior court orders pursuant to Rule 60.12.
CONCLUSION
[49] For the reasons outlined above, the Plaintiff’s action is dismissed for delay pursuant to Rule 24.01 and the court’s inherent jurisdiction, and for failure to comply with prior orders of the Court pursuant to Rule 60.12.
[50] With respect to costs, the Defendants may deliver written costs submissions of no more than 3 pages in length (exclusive of attachments) by January 31, 2022. Ms. Daci may deliver responding cost submissions of no more than 3 pages in length (exclusive of attachments) within 30 days of receipt of the Defendants’ submissions.
R. Frank Associate J
DATE: January 19, 2022
[^1]: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at para. 12 [^2]: Langenecker v Sauve, 2011 ONCA 803, at para. 7 [^3]: Langenecker at para. 9 [^4]: Ticchiarelli v Ticchiarelli , at paras. 20 and 25 [^5]: See Langenecker, at para 11 [^6]: See Van Aert v Sweda Farms Ltd. (Best Choice Eggs), 2018 ONCA 831, at para. 13; Ticchiarelli, at paras. 29‑33 [^7]: See Heffernan v John H. Kieffer Professional Corporation, 2021 ONSC 2786, at paras. 54-58 [^8]: Heffernan, at paras. 55‑56 [^9]: Ticchiarelli, at paras. 20 and 25 [^10]: Ticchiarelli, at para. 26 [^11]: Ticchiarelli, at para. 29 [^12]: See Heffernan, at paras. 67 and 68 [^13]: Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, at para. 22; see also Ticchiarelli, at para. 39 [^14]: Van Aert, at para. 7 [^15]: See Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 2 [^16]: Rana, at para. 50 [^17]: Heffernan, at para. 6 [^18]: Baradaran v. Tarion Corp., 2015 ONSC 7892 at paras. 15 and 16; affirmed 2016 ONCA 712 [^19]: See, also, Rana, at para. 50 [^20]: Ashley v. Reinhart, 2015 ONCA 164, at para. 2 [^21]: In 1066087 Ontario Inc. v Church of the First Born Apostolic Inc., [2004] OJ No 3068, at para 11 (Div. Ct.) [^22]: Falcon Lumber Limited v 2480375 Ontario Inc., 2020 ONCA 310 at paras 50-53, 57