Court File and Parties

COURT FILE NO.: CV-21-671677 DATE: 2023 04 24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ORVILLE HASFAL, Plaintiff - and - MARGARET A. HOY and MARGARET HOY PROFESSIONAL CORPORATION, Defendants

BEFORE: Associate Justice Todd Robinson

APPEARING: O. Hasfal, in person (moving party) D. Zacks and E. Ngondo, for the defendants

HEARD: January 24, 2023 (by videoconference)

REASONS FOR DECISION (Motion for Production, Particulars and Stay)

[1] This is a solicitor negligence action in which Orville Hasfal claims $2 million in damages against the defendants for their alleged negligence in handling a 2013 action for Mr. Hasfal. The defendants were retained by Mr. Hasfal to take over the file from a prior lawyer, Robert Munroe. Ultimately, the defendants moved for and obtained an order removing them as Mr. Hasfal’s lawyers. The 2013 action was subsequently administratively dismissed for delay.

[2] In the notice of motion filed with the court, Mr. Hasfal seeks various orders, as follows:

(a) compelling the defendants to release the file sent to them by Robert Munroe;

(b) compelling the defendants to release all retainer agreements signed by Mr. Hasfal related to his files;

(c) further particulars of various allegations in the statement of defence; and

(d) barring the defendants from taking any further steps in this action, without leave of a judge, pending a review of the removal motion brought by the defendants in the 2013 action.

[3] I am dismissing the motion and imposing a modified version of the defendants’ proposed discovery plan. Mr. Hasfal is seeking information and documents necessary to understand what happened with his 2013 action and to obtain copies of documents on which of the defendants appear to be relying. Mr. Hasfal says that the information and documents he seeks are not matters for discovery. I disagree. In my view, they are just that. Also, since the statement of defence is sufficiently particularized, there is no basis for the remaining relief.

Analysis

Preliminary Matter – Post-motion submissions

[4] While this motion remained under reserve, defendants’ counsel submitted a letter to my Assistant Trial Coordinator confirming that the defendants had served their affidavit of documents and provided Mr. Hasfal with their Schedule A productions. Mr. Hasfal has, in turn, made submissions objecting to the affidavit of documents not being sworn.

[5] I did not invite the parties to make submissions on subsequent developments. No case conference with me for directions was requested by either side. Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) expressly provides that such out-of-court communications are improper absent my direction or clear consent of all parties. Defendants’ counsel appears to have advised Mr. Hasfal of their intention to write to me. However, there is nothing in what has been submitted confirming consent for either side to communicate with me. Since the parties’ positions do not impact my decision, I have disregarded them.

Issue #1 – Production of former lawyer’s file

[6] The defendants do not dispute that Mr. Hasfal is entitled to production of his former lawyer’s file. In my view, this motion was not necessary to compel its production.

[7] Mr. Hasfal’s submissions focused on his entitlement to Robert Munroe’s file. Based on Mr. Hasfal’s materials and submissions, the purpose for seeking the file appears to be for use in this litigation. No law was put before me by Mr. Hasfal and the provisions of the Rules cited in his notice of motion do not assist him. The Rules do not require a party to make production of relevant documents prior to preparing and serving an affidavit of documents.

[8] The defendants did not refuse to produce an affidavit of documents and have never disputed that Robert Munroe’s file would be included in it. The parties seem to have reached an impasse during the course of negotiating the discovery plan required by rule 29.1.03. The defendants’ proposed discovery plan expressly contemplated production of their litigation file, “including the materials received from Bob Munroe.”

[9] In my view, Mr. Hasfal’s motion for production of the file is premature. Having established no basis for a pre-production order that Robert Munroe’s file be produced, I am dismissing that relief. In any event, it appears that the file has now been produced.

Issue #2 – Production of retainer agreements

[10] Mr. Hasfal further seeks production of all retainer agreements signed with the defendants. These, he submits, are required because he has no knowledge of retainer agreements being signed on the dates asserted by the defendants in their statement of defence. I take the same view as above, namely that the need for a pre-production order for retainer agreements signed by Mr. Hasfal has not been established. To the extent that they are tied to requested particulars (discussed below), I do not agree with Mr. Hasfal that any further particulars are required. The dates and particulars of alleged retainer agreements are, in my view, more properly a matter for documentary or oral discoveries.

Issue #3 – Request for particulars

[11] Rule 25.10 of the Rules permits a party to demand particulars of an allegation in the pleading of an opposite party. Once demanded, if the opposite party fails to supply the requested particulars within seven days, then the rule provides that the court may order particulars to be delivered within a specified time.

[12] Since particulars of a statement of defence are sought, the purposes for a reply pleading are relevant in deciding this motion. As set out in subrule 25.08, a reply pleading is only to be delivered (i) where a party intends to prove a different version of the facts pleaded in an opposite party’s defence that has not already been pleaded in the claim or (ii) where a party intends to rely on a matter in response to a defence that, if not specifically pleaded, may take the opposite party by surprise or raise a new issue not previously raised in the pleadings.

[13] In 3 Dogs Daycare Inc. v. Dogtopia Enterprises Canada Inc., 2021 ONSC 514, at para. 21, Master McGraw (as he was then titled) outlined principles applicable to motions for particulars. For the purposes of this motion, the following are the relevant principles that I have considered and applied:

(a) An order for particulars is discretionary. I must make an order that is just, reasonable, and fair in the circumstances of this case;

(b) Mr. Hasfal, as the party seeking particulars, bears the onus of establishing that the particulars are not within his knowledge and are necessary to enable him to plead;

(c) Rule 25.10 requires that the statement of defence be sufficiently particularized, which in this case means allowing Mr. Hasfal to understand the case to meet and to provide an adequately prepared reply, if one is required;

(d) I must consider the whole of the statement of defence and ask myself, “Are there sufficient facts present for Mr. Hasfal to formulate a reply?”;

(e) Subrule 25.06(1) requires that a pleading contain a concise statement of the material facts, not all of the material facts;

(f) Particulars are not akin to an examination for discovery and should not be used to compel the defendants to disclose evidence or the legal nature of their argument, nor should particulars be used as a substitute for what can be obtained through documentary and oral discovery of the defendants;

(g) A realistic and pragmatic approach should be taken when considering whether or not to order particulars, recognizing that not every allegation is capable of being pleaded with the same degree of particularity and that subsequent stages in litigation (such as discovery) may also function to clarify and narrow issues; and

(h) I must not order the defendants to provide particulars that are in the nature of evidence. Doing so would be contrary to subrule 25.06(1), which states that the materials facts on which a party relies for its claim or defence are to be pleaded, but not the evidence by which those facts are to be proved.

[14] Mr. Hasfal seeks particulars as set out in two documents he prepared and sent to defendants’ counsel entitled “Demand for particulars”. In my view, neither document seeks necessary or properly compellable particulars as contemplated by rule 25.10.

[15] The first “Demand for particulars” document requests particulars of paras. 16-17 of the statement of defence, which plead that Margaret Hoy “did not consider that [Mr. Hasfal] could fund the litigation” and that Ms. Hoy sent Mr. Hasfal his file after obtaining the order in the 2013 action removing the defendants as Mr. Hasfal’s lawyers of record. With respect to para. 17, Mr. Hasfal specifically requests “the date, where, when, and how did Hoy send the file that you claimed was sent shortly after she served on [sic] July 23, 2019, Order.”

[16] The second “Demand for particulars” document seeks particulars of paras. 10, 13, 14, 15, and 18‐30 of the statement of defence. The document further generally seeks particulars of the defendants’ position that Mr. Hasfal’s claims are statute-barred by the Limitations Act, 2002, SO 2002, c 24, Sched B and certain details surrounding the administrative dismissal of the 2013 action. The explanation provided in the document for needing particulars is as follows:

Your Statement of Defence:# 10, 13, 14, 15,18-30 speaks of no useful information and is filled with knowingly misleading information. I need dates, times, and information that is clear and concise so they can be responded to. The allegations you make are bald and vague.

I demand that you provide particulars of what happened in the limitation period allegations (time and date) as well as the Administrative Dismissal as to when they occurred and who was the attorney at the time those events happened. Also, answers to the paragraphs mentioned are token answers to my Statement of Claim, so I need clarification.

[17] In my view, none of the particulars sought are required to plead. Most of the requests are seeking evidence, not particulars. For the following reasons, I find no basis to order any further particulars of the statement of defence:

(a) Para. 10: Particulars are not required to plead. It is reasonably within Mr. Hasfal’s knowledge whether statements that he failed to pay the balance of the retainer and that Ms. Hoy made repeated requests for payment are accurate.

(b) Para. 13: Particulars are not required to plead. It is reasonably within Mr. Hasfal’s knowledge whether Ms. Hoy requested a meeting with him to discuss opposition to Mr. Hasfal’s motion to amend in the 2013 action and whether Mr. Hasfal “would not commit to a meeting.”

(c) Para. 14: The impugned statement is solely, “On June 25, 2018, Hoy issued her first account to Hasfal.” No cogent argument was made on what particulars are sought and why they are needed to plead.

(d) Para. 15: Particulars are not required to plead. It is reasonably within Mr. Hasfal’s knowledge whether Ms. Hoy continued to request meetings with Mr. Hasfal, whether Ms. Hoy made requests for Mr. Hasfal to pay the balance of the retainer and his account, and whether Mr. Hasfal did or did not pay them.

(e) Para. 16: Ms. Hoy’s reasons for believing that Mr. Hasfal was unable to fund the litigation is not needed to plead. The allegation is clear as to Ms. Hoy’s subjective view. Mr. Hasfal is able to reply to it, since it is within his knowledge whether he was capable of financing the litigation at the material time.

(f) Para 17: Particulars are not required to plead. Whether or not Mr. Hasfal received a copy of his file from Ms. Hoy and, if so, when, where, and how it was provided to him are matters within his own knowledge.

(g) Para. 18: Sufficient particulars have been provided on the timing of the administrative dismissal (namely after Ms. Hoy had been removed from the record) and the defendants’ position on why they were not responsible for it.

(h) Paras. 19-29: Most of these paragraphs deal with legal positions that are properly explored during examinations for discovery, not by way of a demand for particulars. I do not agree with Mr. Hasfal that the pleaded allegations are vague. The positions on why the defendants assert there has been no loss suffered by or caused to Mr. Hasfal by reason of Ms. Hoy’s conduct is sufficiently set out and the general denial of any breach of duty and lack of damages do not require particularization for Mr. Hasfal to plead.

(i) Para. 30: A limitations defence is a positive defence that must be pleaded. It is a legal position derived from other facts pleaded by the parties. That Mr. Hasfal denies his claim is statute-barred does not mean particulars are warranted. No argument was made for why particulars of dates and times relied on by the defendants are necessary to plead. They are more properly explored during examinations for discovery.

[18] Given my findings above, I need not consider the defendants’ position that the demand for particulars is premature because Mr. Hasfal has expressed an intention to amend his statement of claim.

Issue #4 – Stay pending review of removal order

[19] Mr. Hasfal requests that the defendants be barred from taking any steps in this action until a motion is brought to set aside the order removing the defendants as Mr. Hasfal’s lawyers in the 2013 action. Essentially, Mr. Hasfal seeks a stay of their defence (if not this proceeding) until he can challenge the removal order and the circumstances under which it was made.

[20] I am not granting this relief. The removal order was made on June 23, 2019. It is evident that Mr. Hasfal has been aware of and disputed the removal for some time, notably before this litigation was commenced. This is not a situation where a motion is pending and, if successful, it would have a direct impact on this litigation proceeding or the merits of the claim and defence allegations. No motion has been booked or brought to set aside the removal order. In my view, seeking to stay any next steps by the defendants in this proceeding is thereby premature and unsupported by the record.

Issue #5 – Imposition of discovery plan

[21] If successful in opposing this motion, the defendants seek an order imposing their proposed discovery plan. Subrule 29.1.05(2) of the Rules permits me to establish a discovery plan if the parties fail to agree to one themselves. That discovery plan may set a schedule for examinations and impose such limits on the right of discovery as are just.

[22] Given the apparent disconnect between Mr. Hasfal and the defendants over discovery issues, I find it appropriate to impose a discovery plan. A discovery plan should assist the parties in reducing future disputes during the documentary discovery process.

[23] In my view, the discovery plan proposed by the defendants is reasonable, appropriate, and accords with the Rules. It is properly imposed, with some modification. I am fixing a timetable for exchanging sworn affidavits of documents, Schedule A productions (to the extent not already produced), and completing examinations for discovery. The parties should refer to my signed order for the dates. The discovery plan may be updated and amended in accordance with the Rules.

Costs

[24] In my view, this motion was unnecessary. I am mindful that Mr. Hasfal is self-represented. However, self-represented litigants are not insulated from adverse cost awards simply because they are self-represented. The defendants have incurred costs opposing this motion. They were successful in their opposition. The normal rule is that costs go to the successful party and follow the event. I am not convinced it would be either unfair or unjust to apply that rule in this case.

[25] The defendants seek partial indemnity costs of only $1,000, including HST and disbursements, despite having incurred significantly more costs in responding to this motion. They submit that only a compromised partial indemnity amount is sought in recognition of Mr. Hasfal’s personal circumstances and being self-represented.

[26] The defendants’ position is extremely reasonable and more than fair given the actual costs that they incurred in opposing the motion. That includes preparing for arguments that dealt with alleged contempt and striking the defence for abuse of process that were put forward in a version of the notice of motion that Mr. Hasfal served, but ultimately is not the version he filed. There was no communication that those heads of relief had been withdrawn in the filed version of the notice of motion or that they were not being pursued. I have also considered that adverse costs awards serve an important function of discouraging unnecessary motions, such as this one. I am thereby awarding the requested $1,000 in costs.

Disposition

[27] For the foregoing reasons, Mr. Hasfal’s motion is dismissed, with costs of the motion fixed in the amount of $1,000, including HST and disbursements, payable by Mr. Hasfal to the defendants within sixty (60) days. The parties shall adhere to a modified form of the discovery plan proposed by the defendants, subject to their discretion to update and amend it in accordance with the Rules. Order to go in the form of draft order submitted by the defendants, as amended.

ASSOCIATE JUSTICE TODD ROBINSON DATE: April 24, 2023