COURT FILE NO.: CV-20-84831 DATE: 2023/03/14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARLETON CONDOMINIUM CORPORATION NO. 130 Plaintiff – and – SAIMA SHEIKH Defendant

Counsel: David Lu, Counsel for the plaintiff corporation (moving party) Self-represented defendant (responding party)

HEARD: January 31, 2023 (By Videoconference)

Ruling on a Motion

Introduction

[1] Carleton Condominium Corporation No. 130 (“the condominium corporation”) commenced this action to recover arrears of common expenses said to be owed by Saima Sheikh. The date on which it is alleged that Ms. Sheikh first defaulted in payment of common expenses is not in evidence. From the list of documents in Schedule ‘A’ to the affidavit of documents sworn by the property manager for the condominium corporation, it appears that the arrears of common expenses began to accrue as early as April 2018. [1]

[2] The statement of claim does not identify the amount of the common expense arrears as of October 28, 2020 when the statement of claim was issued. The prayer for relief includes a claim for “judgment in an amount to be determined, representing the then current arrears of common expenses”, plus interest and costs.

[3] In the absence of any evidence as to the monetary amount at stake, the condominium corporation brings this motion for an order striking the statement of defence and counterclaim. The condominium corporation relies on Ms. Sheikh’s litigation conduct to date, including the delays encountered in completing the oral discovery process.

[4] In support of its motion, the condominium corporation relies on Ms. Sheikh’s litigation conduct; therefore, it is important to review what has transpired to date in the proceeding.

Chronology of the Action

[5] Set out below is a chronology of the action to date:

Oct. 28, 2020 - The statement of claim is issued.

Mar. 19, 2021 - Kaufman A.J. makes an order permitting substituted service of the statement of claim on Ms. Sheikh.

Mar. 22, 2021 - The statement of claim is served on Ms. Sheikh in accordance with the order of Kaufman A.J.

Apr. 7, 2021 - Ms. Sheikh serves her statement of defence and counterclaim.

Apr. 19, 2021 - The condominium corporation serves its reply and defence to counterclaim.

Mar. 18, 2022 - The first of three case conferences proceeds before Fortier A.J. The condominium corporation requests that a date be scheduled for a motion for summary judgment. Ms. Sheikh expresses her desire to proceed with examinations for discovery. In the end, Fortier A.J. sets a timetable for the exchange of affidavits of documents, the completion of examinations for discovery, and the provision of answers to undertakings. Fortier A.J. also sets Aug. 31, 2022 as the date for a follow up case conference.

Apr. 22, 2022 - The parties serve their respective affidavits of documents prior to this date – the deadline set by Fortier A.J. in the endorsement from the March 2022 case conference.

May 13, 2022 - The lawyer for the condominium corporation (“Counsel”) sends an email to Ms. Sheikh requesting a list of the dates on which she is available for examinations for discovery. Ms. Sheikh does not reply to that email.

May 20, 2022 - Counsel sends a follow up email to Ms. Sheikh requesting a list of the dates on which she is available for examinations for discovery.

Jun. 3, 2022 - A law clerk with Counsel’s office contacts two reporting services to identify the dates which they respectively have, prior to Jun. 30, 2022 (the deadline set in the March 2022 endorsement for the completion of examinations for discovery), for an appointment for the examinations for discovery in the action.

Jun. 8, 2022 - Counsel sends an email to Ms. Sheikh with the list of dates on which the examinations for discovery could be scheduled at either reporting service.

Jun. 13, 2022 - Ms. Sheikh sends an email to Counsel. Ms. Sheikh does not, however, provide a list of dates on which she is available to attend for examinations for discovery. In her email, Ms. Sheikh does nothing more than comment on the fact that the condominium corporation’s affidavit of documents was not sworn or affirmed by a member of the condominium corporation’s board of directors. [2]

• Counsel replies by email. He explains that there is no requirement for the affidavit of documents to be sworn or affirmed by a member of the condominium corporation’s board of directors. Counsel also explains why the individual who swore the affidavit of documents (the Property Manager) “is the person best equipped to answer any questions as necessary.”

Jun. 17, 2022 - In an email sent to Counsel, Ms. Sheikh cites s. 27(1) of the Condominium Act, 1998 [3], which requires that “a board of directors shall manage the affairs of the corporation.” Ms. Sheikh also cites a provincial regulation, which she says sets out the conditions of a “limited licence”. Last, Ms. Sheikh asserts that the Property Manager had a limited licence “From January 2020 until recently”.

Jun. 20, 2022 - Counsel replies in detail to each of the points raised in Ms. Sheikh’s June 13, 2022 email. Counsel concludes his email by recommending that Ms. Sheikh seek her own counsel to assist her in the proceeding.

Jun. 30, 2022 - The deadline set for the completion of examinations for discovery passes, without a date having been scheduled for the examinations to be conducted.

Aug. 31, 2022 - The second of three case conferences before Fortier A.J. takes place. A revised timetable is set for the completion of examinations for discovery (Oct. 31, 2022) and the provision of answers to undertakings (Dec. 16, 2022). A date is set for a follow up case conference (Jan. 18, 2023).

• Counsel sends an email to Ms. Sheikh requesting that she provide a list of the dates on which she is available for examinations for discovery to be completed (i.e., before Oct. 31, 2022).

Sept. 2, 2022 - Ms. Sheikh sends an email to Counsel, acknowledging that she is aware of (a) the contents of Fortier A.J.’s endorsement, and (b) the Oct. 31, 2022 deadline for examinations for discovery to be completed. In her email, Ms. Sheikh does not provide any dates on which she is available to attend for examinations for discovery; instead, she highlights that she is not refusing to attend an examination for discovery.

Sept. 6, 2022 - Counsel sends an email to Ms. Sheikh requesting that she provide a list of the dates on which she is available for examinations for discovery to be completed (i.e., before Oct. 31, 2022). Counsel informs Ms. Sheikh that, in an effort to minimize costs incurred, he will not be sending any follow up emails.

Oct. 28, 2022 - Ms. Sheikh sends an email to Counsel in which she asserts that the affidavit of documents served on behalf off the condominium corporation contains false statements. Ms. Sheikh again refers to s. 27(1) of the Condominium Act.

Oct. 31, 2022 - The second deadline set by Fortier A.J. for the completion of examinations for discovery passes, without a date being scheduled for the examinations.

Nov. 1, 2022 - Counsel sends a detailed response to Ms. Sheikh’s Oct. 28, 2022 email. Counsel objects to the allegation that the condominium corporation’s affidavit of documents includes false statements. Counsel informs Ms. Sheikh that he intends to schedule a case conference to address her continuing non-compliance with the court’s endorsements and orders. Counsel asks Ms. Sheikh to, no later than Nov. 4, provide dates on which she is available for a case conference.

Nov. 21, 2022 - With no dates for examinations for discovery having been provided by Ms. Sheikh, Counsel unilaterally schedules examinations for discovery to take place on Dec. 1, 2022. Ms. Sheikh is served with a notice of examination. In the letter which accompanies the notice, Counsel informs Ms. Sheikh that if she fails to attend the examination, the condominium corporation will obtain a certificate of non-attendance and seek “all available remedies”.

Nov. 30, 2022 - Ms. Sheikh sends an email to Counsel in which she asserts that the condominium corporation’s affidavit of documents is “replete with inadmissible evidence”. Ms. Sheikh asserts that it “would be fair and more efficient to have the question of admissibility determined in advance.” Ms. Sheikh does not say that she will not be attending for her examination on Dec. 1, 2022.

• Counsel responds to Ms. Sheikh’s email by stating his client’s disagreement with the allegations related to the condominium corporation’s affidavit of documents. Counsel requests that Ms. Sheikh attend the examinations scheduled for Dec. 1, 2022.

Dec. 1, 2022 - Ms. Sheikh does not attend at the location and time of day scheduled for her examination for discovery. Counsel obtains a certificate of non-attendance for the examination for discovery of Ms. Sheikh. Ms. Sheikh is thereafter informed of the condominium corporation’s intention to bring a motion to strike the statement of defence and counterclaim.

Dec. 7, 2022 - Ms. Sheikh sends an email to Counsel setting out her position as to why a motion to strike the statement of defence and counterclaim is not reasonable.

Jan. 16, 2023 - The condominium corporation’s motion record is served on Ms. Sheikh.

Jan. 18, 2023 - The parties attend for the third of three case conferences, to date, before Fortier A.J. At para. 3 of her endorsement from this case conference, Fortier A.J. notes that “Ms. Sheikh conceded that she did not schedule or attend examinations for discovery asserting that she took issue with various aspects of the plaintiff’s affidavit of documents.” Aware that the motion now before the court will be proceeding on Jan. 31, 2023, Fortier A.J. identifies that the parties may schedule a further case conference before her, if required, following disposition of the motion.

[6] Ms. Sheikh was properly served with the motion record. She chose not to deliver any responding materials. At the outset of the motion hearing, the court inquired of Ms. Sheikh as to whether she would be requesting an adjournment to permit her to file responding materials. Ms. Sheikh responded that she did not intend to file any materials and was ready to proceed.

The Issue

[7] Is the condominium corporation entitled to an order striking Ms. Sheikh’s statement of defence and counterclaim?

Disposition

[8] For the reasons which follow, the relief requested is granted. Ms. Sheikh’s statement of defence and counterclaim are struck.

The Positions of the Parties

The Condominium Corporation's Position

[9] At the first case conference (March 2022), it was Ms. Sheikh who requested that the parties be permitted to complete the discovery process before a date was set for the condominium corporation’s motion for summary judgment (as then intended). Despite Ms. Sheikh being granted the relief she requested, Ms. Sheikh failed to co-operate in scheduling and attending examinations for discovery.

[10] The condominium corporation relies on Ms. Sheikh’s conduct related to her concerns about the documentary discovery process. For example, despite listing her concerns in detail in email communication with Counsel, at no time did Ms. Sheikh raise those concerns in any meaningful way when appearing at the case conferences before Fortier A.J.

[11] As another example of Ms. Sheikh’s conduct, the condominium corporation highlights that Ms. Sheikh was served with the condominium corporation’s affidavit of documents, including copies of the documents listed in Schedule “A”, as of April 2022. Yet, Ms. Sheikh waited until after the first deadline set for examinations for discovery passed before she identified, to Counsel, her specific concerns about the condominium corporation’s affidavit of documents. Not only did Ms. Sheikh wait until after the first deadline passed, but she also waited until three days prior to the second deadline for the completion of examinations for discovery to raise those concerns.

[12] The condominium corporation asks the court to conclude that Ms. Sheikh’s litigation conduct is intentional and for the purpose of delaying the proceeding.

[13] The condominium corporation also asks the court to consider the detrimental effect of delay on Ms. Sheikh’s position in the action. The condominium corporation submits that not only are the common expense arrears continuing to accrue, but the amount of a costs award which may be made against Ms. Sheikh is increasing because of Ms. Sheikh’s conduct.

[14] The condominium corporation highlights the powerful mechanisms available to it pursuant to statute and the governing condominium documents. For example, the condominium corporation anticipates that it will eventually rely on provisions in the Condominium Act in support of a request for recovery of its costs on the full indemnity scale.

[15] The condominium corporation submits that it was and remains important that the proceeding not be delayed.

Ms. Sheikh's Position

[16] In her submissions, Ms. Sheikh addressed what she perceives to be a “by-passing” of her right to inspect documents – including documents not listed in Schedule “A” of the condominium corporation’s affidavit of documents.

[17] Ms. Sheikh informed the court that, by December 2022, she felt that she was being unduly pressured. Ms. Sheikh is prepared to proceed with what she describes as a “proper” examination for discovery. She submits that the examinations will not be “proper” if they are conducted based on an “improper” affidavit of documents from the condominium corporation.

[18] Ms. Sheikh raised what she refers to as a “procedural issue”. She submits that the condominium corporation failed to comply with r. 37.10.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), because it unilaterally selected the return date for the motion.

[19] Ms. Sheikh relies on r. 37.13 and asks the court to dismiss the motion. She submits that the condominium corporation failed to co-operate with her regarding the oral and documentary process. With respect to the documentary discovery process, Ms. Sheikh asks the court to conclude that the condominium corporation failed to act with integrity.

[20] I note that Ms. Sheikh’s oral submissions were articulate, well-organized, and clearly the result of thoughtful preparation on Ms. Sheikh’s part. Ms. Sheikh presented as articulate and sophisticated.

Analysis

Ms. Sheikh is Self-Represented

[21] In 2006, the Canadian Judicial Council adopted the “Statement of Principles on Self-represented Litigants and Accused Persons” (“the Statement”). The Preamble to the Statement includes the following passage: “Therefore, judges, court administrators, members of the Bar, legal aid organizations, and government funding agencies each have responsibility to ensure that self-represented persons are provided with fair access to and equal treatment by the court” (emphasis in original).

[22] Section A of the Statement addresses the promotion of the rights of self-represented litigants to access to justice. The following principle is set out in Section A: “Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation”.

[23] In the almost two years since the close of pleadings (spring 2021), the parties have appeared before the court four times – for three case conferences and for the condominium corporation’s motion. The end result of the parties’ first appearance was that Ms. Sheikh got the relief she was seeking – the opportunity to complete the discovery process before the condominium corporation brought a motion for summary judgment (as per its original intention). On the parties’ second appearance, Ms. Sheikh was granted an indulgence from the court by virtue of the extension of the deadline by which the parties were to complete examinations for discovery.

[24] I find that, in keeping with Section A of the Statement, the case conferences before Fortier A.J. provided Ms. Sheikh with the opportunity to meaningfully present her case as the parties navigated the discovery process.

[25] Section C of the Statement summarizes the “Responsibilities of the Participants in the Justice System”. The governing principle set out therein is, “All participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.” Section C provides guidance for judges, court administrators, members of the bar, and self-represented litigants.

[26] Members of the bar are “expected to be respectful of self-represented persons and to adjust their behaviour accordingly when dealing with self-represented persons”. Members of the bar are to avoid using complex legal language in their communication with self-represented persons.

[27] The record demonstrates that Counsel is well-aware of the expectations summarized in the preceding paragraph. I find that Counsel was at all times respectful in his email communication with Ms. Sheikh. He responded in a fulsome manner to concerns raised by Ms. Sheikh. Counsel’s responses were clear and, where possible, devoid of legalese.

[28] Section C of the Statement sets out three specific expectations of self-represented persons:

1. Self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.
2. Self-represented persons are expected to prepare their own case.
3. Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process.

[29] Ms. Sheikh is aware that the proceeding is governed by the Rules. In oral submissions, Ms. Sheikh relied on rr. 37.10.1 and 37.13 in her oral submissions. Rule 37.10.1 governs the process for confirmation of motions. Pursuant to r. 37.10.1(1), the moving party is required to confer with the opposing party prior to completing and delivering a confirmation form. Based on Ms. Sheikh’s oral submissions, it appears that she erroneously interpreted the rule as requiring the condominium corporation to confer with her when selecting a return date for the motion.

[30] The point here is not Ms. Sheikh’s erroneous interpretation of the rule; rather, the point is Ms. Sheikh’s understanding that the proceeding, including the discovery process, is governed by the Rules. Ms. Sheikh is not entitled to cherry pick the rules which she will follow and those which she will ignore.

Ms. Sheikh’s Litigation Conduct

[31] Despite Ms. Sheikh’s obvious understanding that the proceeding is governed by the Rules, she failed to comply with two timetables set by the court. At the most recent case conference, conducted in January 2023, Ms. Sheikh acknowledged her failure in that regard.

[32] There are consequences for failing to comply with a timetable – whether the timetable was set on the consent of the parties or determined by the court. Rule 3.04(4) of the Rules sets out the range of relief available to a party where the opposing party fails to comply with a timetable. The range of relief includes dismissing a party’s proceeding or striking out a party’s defence: r. 3.04(4)(b).

[33] At no time did Ms. Sheikh make any effort to co-operate with Counsel so that the parties could, collectively, comply with either of the deadlines set by Fortier A.J. for the examinations for discovery to be completed. In six emails sent by Counsel to Ms. Sheikh in 2021 and 2022, he requested that she provide a list of the dates on which she was available for examinations for discovery. Ms. Sheikh never responded with a list of dates.

[34] Based on Ms. Sheikh’s conduct, it was entirely reasonable for Counsel to unilaterally schedule an examination for discovery of Ms. Sheikh and serve a notice of examination. Counsel did nothing more than attempt to move the proceeding forward on behalf of his client.

[35] After being served with a notice of examination, Ms. Sheikh did nothing. She did not inform Counsel that she was unavailable for examinations for discovery on December 1, 2022; nor did Ms. Sheikh attempt to identify an alternative date that was mutually convenient. Ultimately, Ms. Sheikh failed to attend for the examination for discovery scheduled for December 1, 2022. She did so, despite having been properly served with a notice of examination.

[36] There are consequences for failing to comply with a notice of examination. Rule 34.15(1)(b) provides that “where a person fails to attend at the time and place fixed for an examination in the notice of examination [ ] the court may [ ] dismiss the party’s proceeding or strike out the party’s defence”.

[37] I do not see any injustice in holding Ms. Sheikh to the standards set in the Rules. It is now almost two years since the action was commenced and since Ms. Sheikh delivered her pleading in which she advances a counterclaim. In her capacity as a defendant in the main action and as a plaintiff in the counterclaim, Ms. Sheikh has an obligation to co-operate with the condominium corporation to move the proceeding forward in a timely manner. I find that she failed to fulfil that obligation.

[38] Ms. Sheikh had almost a year, between the date on which she was served with the statement of claim and the date of the first case conference before Fortier A.J., to familiarize herself with the Rules. Ms. Sheikh has had almost another entire year, since the date of the first case conference, in which to continue to familiarize herself with the Rules.

[39] As of the date on which the motion was heard, seven months had passed since the first deadline, and three months had passed since the second deadline, by which the examinations for discovery were to be completed.

[40] In her email communication with Counsel, Ms. Sheikh raised concerns regarding the affidavit of documents served on behalf of the condominium corporation. There were steps available to Ms. Sheikh to address those concerns. Those steps include (a) a motion for a better affidavit of documents, and (b) cross-examination of the Property Manager as part of the examination for discovery, when produced as the representative of the condominium corporation. Ms. Sheikh never indicated that she intended to take either of those steps.

[41] The steps available to Ms. Sheikh to address her concerns regarding the condominium corporation’s affidavit of documents do not include failing to comply with court-imposed timelines and/or a notice of examination.

No Explanation for Delay/Conduct

[42] Ms. Sheikh offered no meaningful explanation for her failure to comply with either of the two deadlines set for examinations for discovery or with the notice of examination.

[43] In her oral submissions, Ms. Sheikh demonstrated familiarity with the Rules. She offered no meaningful explanation as to why she did not rely on the Rules in an effort to address her concerns with respect to the condominium corporation’s affidavit of documents.

[44] Delay in the pursuit of a proceeding, including a counterclaim, requires an explanation. The onus is on the party alleged to have engaged in delay to satisfy the court that the party’s conduct was not intentional. In the absence of an explanation for the delays encountered to date, the presumption is that the conduct resulting in delay of the proceeding is intentional: Berg v. Robbins, at para. 13.

[45] As a litigant, Ms. Sheikh is not a neophyte; in addition, she is articulate and was well-prepared for oral submissions on the motion. I find that Ms. Sheikh’s conduct in the action to date is intentional and for the purpose of delay.

[46] I find that as a result of Ms. Sheikh’s conduct,

a) There has been unnecessary delay in the progress of this action; b) The condominium corporation has incurred unnecessary expenses (the work done by Counsel in attending multiple case conferences and in corresponding with Ms. Sheikh in an effort to identify a mutually convenient date for examinations for discovery); c) The condominium corporation has been prevented from pursuing a timely resolution not only of its claim, but also of the claims against it by Ms. Sheikh; and d) With respect to day-to-day practicalities, the condominium corporation has, for almost five years, been required to operate without the benefit of Ms. Sheikh’s contributions to the common expenses.

[47] In summary, I find that Ms. Sheikh’s conduct is both intentional and contumelious. Ms. Sheikh has had more than ample time to conduct herself as a responsible litigant and has repeatedly failed to do so.

Order Made

[48] The court orders that Ms. Sheikh’s statement of defence is struck, and the counterclaim advanced in Ms. Sheikh’s pleading is dismissed. In the circumstances, it would not be reasonable to require the condominium corporation to obtain from Ms. Sheikh her approval as to form and content of the draft order submitted to the court for the purpose of the motion. The court also orders that said requirement is dispensed with. Counsel shall submit for the court’s consideration a draft order in Word format.

Costs

[49] As the successful party on the motion, the condominium corporation is presumptively entitled to its costs of the motion. Counsel asked the court to leave the matter of costs of the motion to the judge presiding over either an uncontested trial or a motion for default judgment – depending on which proceeding the condominium corporation pursues.

[50] In accordance with that request, costs of the motion, including entitlement, scale, and quantum, are reserved to the judge presiding over an uncontested trial or a motion for default judgment.

Madam Justice Sylvia Corthorn Date: March 14, 2023

Footnotes

[1] Document no. 6 in Schedule ‘A’ is described as correspondence dated April 17, 2018 “advising of current arrears”.

[2] The condominium corporation’s affidavit of documents is sworn by the Property Manager for the corporation.

[3] S.O. 1998, c. 19 (“the Condominium Act”).