COURT FILE NO.: CV-20-647044 DATE: 2023 03 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PARSA ESKANDARI and JACOB ESKANDARI, minors by their Litigation Guardian ABBAS ESKANDARI, MOJDEH RABIEI, and the said ABBAS ESKANDARI personally, Plaintiffs
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I. RAIZMAN, M. MAN YEE LEE, A. NATHANS, N. GARG, L. ROBERTS, N. LIPSMAN, A. MOGHADDAMJOU, L. ELKAIM, J. KU, J. TAT, H. KREDER, N. LYNN MA, D. SCALES, H. TIEN, S. ABDULLA, S. SYMONS, M. CHRISTAKIS, F. BERGER, A. MOHAMMED, U. TARIQUE, E. HUGHES, L. DA COSTA, M. VYAS, J. AOUN, J. COTTRELL, L. SNELL, J. MUN YIU KOWK, J. LLOYD, J. GRENIER, R. RUSSELL, A. YU, SUNNYBROOK HEALTH SCIENCE CENTRE, L. JACOVICH, E. SMITH, S. CHAO, T. TANG, V. MILLER, L. MANEROV, S. BELL, F. KHAN, D. HUSSEIN and J. DOES 1-14, Defendants
BEFORE: Associate Justice Todd Robinson
APPEARING: J. O’Dell, for the defendants, Dr. Igal Raizman, Dr. Michelle Man Yan Lee, Dr. A. Nathans, Dr. N. Garg, Dr. L. Roberts, Dr. N. Lipsman, Dr. A. Moghaddamjou, Dr. A. Yu, Dr. J. Ku, Dr. J. Tat, Dr. H. Kreder, Dr. Noelle Lynn Ma, Dr. D. Scales, Dr. H. Tien. Dr. S. Abdulla, Dr. S. Symons, Dr. M. Christakis, Dr. F. Berger, Dr. A. Mohammed, Dr. U. Tarique, Dr. Emily Hughes, Dr. Leodante DaCosta, Dr. Manau Vyas, Dr. J. Aoun, Dr. Justin Cottrell, Dr. L. Snell, Dr. Jason Mun Yiu Kwok, Dr. J. Lloyd, Dr. J. Grenier, and Dr. R. Russell (moving parties) A. Eskandari, in person H. Ngan, for the defendants, Sunnybrook Health Science Centre, L. Jacovich, E. Smith, S. Chao, T. Tang, L. Manerov, S. Bell, F. Khan, D. Hussein K. McDermott-Berryman, for the defendant, Dr. L. Elkaim A. Leung, for the Office of the Children’s Lawyer
HEARD: December 16, 2022 (by videoconference)
REASONS FOR DECISION (Motion to dismiss action by minor plaintiffs)
[1] The moving defendants seek an order dismissing this action by the minor plaintiffs for failure to appoint new counsel in accordance with the order that removed the plaintiffs’ former lawyers from the record. Abbas Eskandari, the litigation guardian of the minor plaintiffs, who are his children, opposes the motion. The Office of the Children’s Lawyer takes no position.
[2] The plaintiffs’ former lawyers obtained an order removing them from the record on October 28, 2021. It appears that Mr. Eskandari was in attendance at that motion hearing, but it is undisputed that he was served with the order. The Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) require that a person acting in a representative capacity must be represented by a lawyer. Mr. Eskandari seeks more time to find a lawyer and argues it would be unfair to dismiss the claims by his children in the circumstances of this case.
[3] There has already been significant delay in this proceeding since the removal order was granted in October 2021. This is a substantial medical malpractice claim seeking damages of $20 million for Abbas Eskandari, $2 million for his spouse, Mojdeh Rabiei, and $1 million for each of the two minor plaintiffs. Pleadings are closed, but documentary and oral discoveries have still not yet occurred. Despite having nearly a year to comply with the removal order, neither Mr. Eskandari nor Ms. Rabiei complied with the order until after this motion was brought. Both have now served notices of intention to act in person. But for the minor plaintiffs, that would be an end to the matter and the action could proceed. However, in his capacity as litigation guardian, Mr. Eskandari must be represented by a lawyer. There is limited evidence on what steps have been taken to find a new lawyer since October 2021, other than brief affidavit evidence and Mr. Eskandari’s unsubstantiated submissions made at the hearing.
[4] I have sympathy for Mr. Eskandari’s position. However, the court must control its own processes. Despite over a year since the removal order and several adjournments of this motion leading to this hearing, Mr. Eskandari has put forward no cogent evidence of reasonable or sufficient efforts to find counsel. I am not satisfied that earnest efforts to find a lawyer are being made or that a lawyer is likely to be retained any time soon, if at all.
[5] In my view, the defendants are entitled to some certainty on which claims are proceeding against them. I am thereby granting the defendants’ motion and dismissing the action by the minor plaintiffs.
Analysis
[6] The moving defendants seek dismissal under subrule 15.04(9) and rule 60.12 of the Rules. Subrule 15.04(9) provides the court with authority to dismiss a proceeding for non-compliance with a removal order. Rule 60.12 provides the court with similar authority to dismiss a proceeding for non-compliance with an interlocutory order.
[7] My jurisdiction to hear this motion was not challenged. Subrule 37.02(2) provides me with jurisdiction to hear any motion in a proceeding, with the same jurisdiction as a judge, subject to certain enumerated exceptions. I have no jurisdiction to decide a motion where the power to grant the relief sought is conferred expressly on a judge by a statute or rule or a motion for judgment on consent in favour of or against a party under disability. Judgment is not sought against the minor plaintiffs. Rule 7 requires that noting in default and discontinuances against minors require leave of a judge and that approval of settlements with minors must be addressed by a judge. There is no similar provision dealing with a motion to dismiss a minor’s claim for procedural non-compliance. I am satisfied that I have jurisdiction to hear and decide this motion.
[8] My decision on this motion is discretionary. Dismissing an action is a severe remedy, so I must consider the balance between having the minor plaintiffs’ claims adjudicated on their merits and ensuring that the administration of justice is not undermined by non-compliance with the Rules and court orders. I agree with the moving defendants that guiding principles for exercising my discretion have been discussed in Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50. While not all of those principles are applicable here, the following are relevant in my disposition of this motion:
(a) The court must be alive to the possibility that non-compliance with court orders is indicative of its process being abused. Failing to act may deprive the moving party of justice according to law and risks rendering the court “a paper tiger”;
(b) A litigant’s right of access to the courts must be accompanied by the responsibility to abide by the Rules and comply with court orders; and
(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. Failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system.
[9] Case law supports that it is an appropriate exercise of the court’s discretion under subrule 15.04(9) to dismiss a claim where a party does not show an active interest in prosecuting the action: AGC v. Madeleine Rundle c.o.b. NEC Plus Ultra, 2013 ONSC 2747 at para. 7; Pombo v. Canac Kitchens, 2016 ONSC 1064 at para. 17.
[10] Mr. Eskandari is currently representing himself in his personal capacity, as he is entitled to do. However, in his capacity a litigation guardian for the minor plaintiffs, he cannot act without a lawyer. Subrule 15.01(1) of the Rules provides that a party to a proceeding who acts in a representative capacity shall be represented by a lawyer. Mr. Eskandari thereby must be represented by a lawyer to advance the claims of his children.
[11] Representation by a lawyer in this case is a mandatory requirement. Unlike a corporation, for which leave to be represented by a non-lawyer may be granted under subrule 15.01(2), the Rules do not provide the court with any authority to grant leave to a non-lawyer to act for another person in a representative capacity. As set out in s. 26.1 of the Law Society Act, RSO 1990, c L.8, only licensees of the Law Society of Ontario are entitled to practise law or provide legal services in Ontario. Although no case law has been cited by either party, it is well-established that only a lawyer may appear to represent others in proceedings before the Superior Court of Justice and that the court has no discretion to permit a non-lawyer to represent another individual, including when acting in a representative capacity: Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 (Div Ct), at para. 7; Direk v. Attorney General of Ontario, 2010 ONSC 3428 at para. 6.
[12] The order removing the plaintiffs’ former lawyers from the record was issued on October 28, 2021, nearly 14 months before the hearing of this motion. Based on the handwritten amendment to the removal order, Mr. Eskandari appeared and made submissions on the motion. The time to find new counsel was amended to 60 days. The circumstances under which that amendment was made are not before me.
[13] The removal order does not refer to the requirement in subrule 15.01(1) of the Rules that Mr. Eskandari, as litigation guardian, must be represented by a lawyer. However, the order complies with subrule 15.04(4), which mandates certain contents for a removal order, including a requirement to insert the text of subrules 15.04(8) and (9) where the client is not a corporation. Subrule 15.04(8) provides as follows:
Clients Other Than Corporations
(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,
(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or
(b) serve a notice of intention to act in person under subrule 15.03 (3).
[14] There is a gap in the Rules. The direction in subrule 15.04(8)(b) is inaccurate for a party acting in a representative capacity. As discussed above, subrule 15.01(1) prohibits such a party from acting in person. A person acting in a representative capacity thereby cannot validly serve a notice of intention to act in person.
[15] I accept that Mr. Eskandari did not know he was required to have a lawyer to advance the claims by his children until receiving my endorsement dated August 9, 2022. I accept his evidence that he did not receive that endorsement, or the motion materials, until late September 2022. In my view, though, none of that matters.
[16] Mr. Eskandari’s responding affidavit confirms that he understood the requirement to appoint a new lawyer or serve a notice of intention to act in person after the removal order was issued. Mr. Eskandari did neither in the 11 months before he says he received the materials for this motion. It follows that being unaware that he required a lawyer for his children does not explain ongoing non-compliance with the removal order.
[17] Mr. Eskandari’s evidence and submissions support that it was not and is not his intention to proceed to trial without a lawyer, either in his own capacity or in his capacity as litigation guardian. In his responding affidavit, Mr. Eskandari states that all of his efforts since the removal order was issued have been directed at trying to first retain a medical expert, and then to try to retain a lawyer. According to Mr. Eskandari, he has been unable to find a lawyer.
[18] Evidence before me on Mr. Eskandari’s search for a new lawyer is sparse. His responding affidavit was prepared with the assistance of a lawyer, who appeared as agent for Mr. Eskandari and Ms. Rabiei at the second return of this motion. That affidavit states that Mr. Eskandari has “consulted with several lawyers” between October 28, 2021 and the present, but identifies only three law firms. No dates are provided for when those lawyers were consulted. Although Mr. Eskandari submits that there have also been other lawyers, there is no evidence of that.
[19] Moreover, when the motion came back on before me on October 14, 2022, Mr. Eskandari sought an adjournment for 120 days to find a new lawyer. After hearing submissions, I granted a 60-day adjournment to this hearing. Instead of submitting supplementary evidence on his efforts to find a lawyer during that 60-day period, Mr. Eskandari appeared and argued for a further 120-day adjournment to find new counsel (which I denied for reasons given at the hearing). That request, combined with the extension I had already granted, amounted to a request for a total of 180 days to find new counsel beyond the second return of this motion: an even longer period than had been originally requested. No evidence was tendered supporting why a lawyer could not be found in in the last 60 days or why another 120 days was reasonably needed.
[20] This action was commenced in September 2020. Documentary and oral discoveries have not yet occurred. Other than the fairly general evidence in Mr. Eskandari’s affidavit on his efforts to contact three potential medical experts since October 2021, the plaintiffs have taken no substantive steps to advance this action since pleadings were closed shortly before the removal motion was heard.
[21] As set out in subrule 1.04(1) of the Rules, the Rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. There is a balance between having matters tried on their merits and ensuring procedural fairness to all parties. Parties are expected to comply with the Rules and court orders. When they fail to do so without a proper or complete explanation of the reasons for non-compliance, procedural fairness may trump.
[22] In this case, Mr. Eskandari had well over a year to retain counsel before this motion was argued. There is no cogent evidence of substantive efforts by Mr. Eskandari to find a new lawyer during that time. Only three lawyers have been identified in Mr. Eskandari’s responding affidavit as being consulted, but the timing of when they were consulted is not disclosed. I afforded Mr. Eskandari a further 60 days to find a new lawyer before this motion was heard. There is a complete lack of evidence supporting that Mr. Eskandari took any steps to find counsel during the period of adjournment. Mr. Eskandari’s oral submissions on efforts to find a lawyer before and after that adjournment are unsupported by any evidence before me.
[23] In these circumstances, I am left with the inescapable conclusion that providing Mr. Eskandari with more time will make no difference.
[24] Procedural fairness dictates that the defendants are entitled to some certainty on what claims against them are proceeding. Serving notices of intention to act in person has preserved the claims by Mr. Eskandari and Ms. Rabiei in their personal capacities. However, the defendants cannot take meaningful steps to discover the minor plaintiffs’ claims or take any steps affecting their interests until a lawyer is appointed. To hold otherwise would, in my view, run afoul of the requirement in subrule 15.01(1) of the Rules and the prohibition in s. 26.1(1) of the Law Society Act that procedurally preclude Mr. Eskandari from advancing the minor plaintiffs’ claims without a lawyer. That is precisely what Mr. Eskandari would be doing if, for example, he were discovered on the minor plaintiffs’ claims without a lawyer or he responded on the minor plaintiffs’ behalf to any motions brought dealing with their interests.
[25] In my view, in circumstances such as these where there is no cogent evidence supporting reasonable efforts by Mr. Eskandari to find counsel in his capacity as litigation guardian, it is unfair to the defendants to permit the claims of the minor plaintiffs to proceed. Doing so will only continue to hold up this litigation for seemingly non-committal efforts to find a new lawyer to occur.
[26] For the above reasons, I am granting the defendants’ motion and dismissing the claims of the minor plaintiffs by their litigation guardian, Mr. Eskandari.
Costs
[27] The moving defendants submitted that, if successful, they would only seek their partial indemnity costs of attending this hearing. Mr. Eskandari’s opposed adjournment request and the ultimate motion argument were spread over most of the day, such that the moving defendants’ total partial indemnity costs claim is effectively for the 5 hours of court time (submissions and waiting time) before the motion was fully heard and reserved.
[28] Mr. Eskandari submits that, as a result of his paralysis and injuries from the stroke underlying this action, he has not worked for the past four years and has not earned any income. That is outlined in his responding affidavit. He submitted that, if unsuccessful, there should be no costs award and that the defendants should bear their own costs.
[29] Costs typically follow the event. I have no reason to doubt Mr. Eskandari’s sworn statements that he is unable to work and has had no income for four years. However, parties to civil litigation are not insulated from adverse costs awards simply because they are not currently working or have no income. Typically, a party must establish impecuniosity to obtain relief from the court against a costs award. Having no income and being impecunious are not the same thing.
[30] Mr. Eskandari’s affidavit includes only general statements about his financial circumstances. It does not include the level of robust particularity needed to establish impecuniosity. This is a substantial claim. The minor plaintiffs have each claimed $1 million in damages. The moving defendants have been successful in their motion in respect of those claims. Both claims have been dismissed for non-compliance with the removal order and the Rules. Moreover, Mr. Eskandari and Ms. Rabiei only themselves complied with the removal order by serving notices of intention to act in person in response to this motion. Mr. Eskandari has not provided a sufficient explanation for ongoing breach of the removal order, particularly when I gave him a further 60 days to comply. In these circumstances, I do not find it fair or just to deny the moving defendants some costs.
[31] The moving defendants’ costs claim is modest and more than reasonable in the circumstances. They could well have sought full costs of the motion, but have limited their costs claim to the final hearing. I am mindful, though, that the length of my list and when I called this matter was not the fault of either side. It is not clear to me that the moving defendants’ lawyer dedicated all of her time to this matter while waiting before and between submissions on Mr. Eskandari’s opposed adjournment request and the substantive motion.
[32] I am accordingly fixing the moving defendants’ partial indemnity costs in the amount of $475.00, including HST. I am also affording Mr. Eskandari a period of 60 days in which to pay the costs.
Disposition
[33] For the foregoing reasons, I accordingly order as follows:
(a) The claims by Parsa Eskandari and Jacob Eskandari, minors by their litigation guardian Abbas Eskandari, are hereby dismissed.
(b) Abbas Eskandari, in his capacity as litigation guardian for Parsa Eskandari and Jacob Eskandari, shall pay to the moving defendants their costs of this motion fixed in the amount of $475.00, including HST, payable within sixty (60) days.
(c) This order is effective without further formality.
[34] I have signed an amended copy of the revised draft order submitted by the moving defendants, as amended electronically prior to signing.
ASSOCIATE JUSTICE TODD ROBINSON DATE: March 13, 2023