COURT FILE NO.: CV-20-83329
DATE: 2022/09/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1649050 Ontario LTD., Plaintiff
-and-
Peter Hargadon, Defendant
-and-
Stewart Title Guaranty Company, Defendant
BEFORE: Anne London-Weinstein J.
COUNSEL: Jeffrey Langevin for the Plaintiff Robert D. Malen for the Defendant, Peter Hargadon Michael Van Dusen for the Defendant, Stewart Title Guaranty Company
HEARD: August 25, 2022
ENDORSEMENT
[1] The Defendants in this matter are a retired lawyer who acted on a transaction for the Plaintiff and a title guaranty company. The Defendants bring a motion asking that the statement of claim be struck and the action dismissed. Mr. Langevin asks to be removed as counsel of record. For the reasons which follow, I have ordered that the Plaintiff has 60 days from the date of this order to appoint a new lawyer of record by serving notice, or serving a notice of intention to act in person, failing which the Defendants can renew the application to strike the statement of claim and dismiss the action. The application should be scheduled before me and can be done before 10 a.m. court if necessary to expedite the matter. Mr. Langevin is to serve a draft order removing himself and his firm as counsel of record for my signature. Mr. Langevin will be required to serve the order after it has been signed, on the Plaintiff and then file proof of service.
Facts:
[2] The Defendant Peter Hargadon is a retired lawyer who acted for the Plaintiff on a transaction which is the subject matter of the lawsuit. A Notice of Intent to Defend has been filed on behalf of Mr. Hargadon.
[3] In a conference call on August 5, 2021, between Mr. Langevin, Mr. Malen and Mr. Van Dusen, a timetable for the proceedings was discussed and agreed to, including the date of August 21, 2021.
[4] Mr. Langevin was to advise Mr. Malen about whether Mr. Hargadon could be released from the action by August 21, 2021. Mr. Langevin advised Mr. Hargadon that a Statement of Defence need not be filed in the circumstances. Despite repeated attempts to confirm that Mr. Hargadon could be released from the action, Mr. Langevin was unable to advise Mr. Malen of the same. Mr. Malen repeatedly emailed Mr. Langevin in October of 2021 to no avail.
[5] Finally, on November 4, 2021, Mr. Langevin advised Mr. Malen that he had been discharged and that the Plaintiff had retrieved his file that morning. A Notice of Change of Representation was never received.
[6] Mr. Malen has never been contacted by any other lawyer for the plaintiff, nor has he been contacted by the Plaintiff personally.
[7] The Plaintiff did not appear for the examination for discovery which took place on February 15, 2022. Mr. Malen and Mr. Van Dusen both appeared. An affidavit of documents has never been filed. The Plaintiff failed to appear for this motion despite being served. His counsel, Mr. Langevin, has not been able to communicate with his client.
[8] The Statement of Claim was issued on April 9, 2020. The Plaintiff amended the Statement of Claim on or about July 29, 2020. The Plaintiff did not file an affidavit of documents. He failed to attend an examination for discovery which had been agreed to as part of a litigation timetable. For two years the Plaintiff has taken no further steps to advance the action.
[9] Mr. Langevin advises that he has fallen out of communication with his client despite repeated attempts to communicate and there has been a resultant irreparable break down in the solicitor-client relationship. The Plaintiff, according to Mr. Langevin picked up his file from Mr. Langevin's office and has since been out of touch with counsel. I agree with Mr. Langevin that there has been an irreparable break down in the solicitor-client relationship because of an inability to communicate.
Legal Analysis:
[10] The Plaintiff in this action has done nothing to move the litigation along in two years. Where a party fails to comply with a timetable, a judge or associate judge may, on any other party's motion, stay the proceedings, dismiss the party's proceeding or make such other order as is just. Rule 3.04(4)(b) & (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[11] Further, where a person fails to attend at the time and place fixed for an examination on the notice of examination or at a time and place agreed to by the parties, the court may dismiss the party's proceeding. Rule 34.15(1)(b) of the Rules of Civil Procedure.
[12] It was open to the court to impose a timetable for the balance of the interlocutory proceedings, and I considered this option. However, given that the Plaintiff has not respected the timetable which has been put in place, I had little hope that this would speed matters along. For two years the Plaintiff has done nothing to move the litigation forward. The Plaintiff failed to attend the examination for discovery, failed to communicate with counsel and failed to file an affidavit of documents. There is a strong inference from the Plaintiff's conduct that interest has been lost in the litigation. Nonetheless, striking out a claim and dismissing an action is a remedy of final sort. In the circumstances, I have attempted to strike a fair balance between the need to move this matter along, and the maintenance of procedural fairness to the Plaintiff, who has fallen out of contact with counsel. I have ordered that the Plaintiff has 60 days to appoint a new lawyer of record by serving a notice under subrule 15.03 (2) of the Rules of Civil Procedure or serving a notice of intention to act in person, failing which I will again hear the motion to strike the claim and dismiss the action. In terms of the break down in the solicitor-client relationship between the Plaintiff and Mr. Langevin, I am satisfied that it is appropriate for Mr. Langevin to submit a draft order for my signature seeking removal from the record for himself and his firm. The order should be in compliance with Rule 15.04 (4) of the Rules of Civil Procedure. When the order is signed, it will need to be served on the Plaintiff in compliance with Rule 15.04 (2) and proof of service filed in compliance with Rule 15.04 (5) of the Rules of Civil Procedure.
Costs:
[13] Costs of the motion are reserved to be decided at any subsequent motion to strike which the Defendants may be forced to bring. That motion will be brought before me. If, within 60 days, it becomes apparent that a motion to strike will not be necessary, the Plaintiff having complied with this order, I will receive the cost submissions from the parties at that time.
Anne London-Weinstein J.
Date: September 13, 2022
COURT FILE NO.: CV-20-83329
DATE: 2022/09/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: 1649050 Ontario LTD., Plaintiff
-and-
Peter Hargadon, Defendant
-and-
Stewart Title Guaranty Company, Defendant
BEFORE: Anne London-Weinstein J.
COUNSEL: Jeffrey Langevin for the Plaintiff Robert D. Malen for the Defendant, Peter Hargadon Michael Van Dusen for the Defendant, Stewart Title Guaranty Company
ENDORSEMENT
Anne London-Weinstein J.
Released: September 13, 2022