Court File and Parties

COURT FILE NO.: CV-14-518093 DATE: 20230605 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIANA MICHELLE DANIELLA HORDO, Plaintiff AND: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant

BEFORE: VERMETTE J.

COUNSEL: Diana Michelle Daniella Hordo, self-represented Kendall Andjelkovic, for the Defendant

HEARD: In writing

Endorsement

[1] On June 20, 2022, I issued an endorsement (2022 ONSC 3678) ordering the Plaintiff to attend an in-person examination for discovery by September 30, 2022 (“June 20, 2022 Endorsement”). I indicated in the June 20, 2022 Endorsement that I was giving the Plaintiff a last chance to comply with her discovery obligations under the Rules of Civil Procedure, and that if she failed to comply with this “last chance order”, she should expect that her action would be dismissed in the absence of exceptional circumstances.

[2] The Plaintiff failed to attend an examination for discovery by September 30, 2022 and, as a result, the Defendant has moved for an order dismissing the action. I heard this motion as the Case Management Judge appointed for this matter.

[3] The Defendant’s motion is granted. This action is dismissed.

A. Factual and Procedural Background

[4] The factual and procedural background set out in the June 20, 2022 Endorsement is incorporated by reference into this endorsement.

1. June 20, 2022 Endorsement

[5] In the June 20, 2022 Endorsement, I granted in part a motion brought by the Defendant for various relief. I ordered the following at paragraphs 96-98 of the June 20, 2022 Endorsement:

[96] I order the following with respect to the Plaintiff’s examination for discovery:

a. The Defendant will send to the Plaintiff a list of outstanding documents to be produced by July 4, 2022. I note that, contrary to the submissions made at the hearing, the correspondence between the parties reflects that the Plaintiff has served an affidavit of documents, but a copy of all Schedule “A” documents may not have been provided. Further, given the time that has elapsed since the preparation of the affidavit of documents, additional relevant documents may exist.

b. The Plaintiff is to produce all relevant documents that are in her possession, control or power and that have not been already provided to the Defendant by August 26, 2022. If the Plaintiff has to request documents from third parties, such requests should be made as soon as possible so that the documents are obtained by August 26, 2022. The failure to produce all relevant documents in a timely fashion may necessitate multiple attendances by the Plaintiff to complete her examination for discovery. Therefore, it is in the interest of the Plaintiff to produce all relevant documents as soon as possible.

c. The parties are to have discussions as soon as possible regarding reasonable accommodations to be provided to the Plaintiff during her examination for discovery (e.g., frequency of breaks, etc.). If the parties cannot agree, a case conference is to be scheduled before me before the end of August 2022 so that I can rule on the appropriate accommodations to be provided. Disagreements between the parties with respect to accommodations will not justify delaying the examination for discovery of the Plaintiff, and the Plaintiff will not be allowed to reargue the issues raised on this motion when the issue of accommodations is discussed.

d. The examination for discovery of the Plaintiff is to take place by September 30, 2022.

e. If the Plaintiff fails to attend her examination for discovery, the Defendant may contact my assistant to request a case conference to schedule a motion to dismiss the action.

[97] The Defendant’s motion to dismiss the action for delay is adjourned to a case conference to be held before me after September 30, 2022.

[98] The balance of the Defendant’s motion is dismissed, without prejudice to the Defendant bringing a similar motion at a later date, if the appropriate conditions apply.

[6] In the June 20, 2022 Endorsement, I found that the Plaintiff was able to participate in an in-person examination for discovery, with appropriate accommodation, and that her refusal to attend an in-person examination for discovery was unjustified. Nevertheless, I concluded that it was not appropriate to dismiss the action at that stage for failure to attend an examination for discovery. I stated the following at paragraphs 80-81:

[80] However, I am of the view that it is not appropriate at this stage to make an order dismissing the action based on the Plaintiff’s failure to attend an examination for discovery. This is the first time that the issue of the Plaintiff’s failure to attend an examination for discovery is being adjudicated. The motion for similar relief previously brought by the Defendant did not proceed before Master Short. Before the instant motion, the Plaintiff’s grounds for not attending an in-person examination for discovery had not been ruled on by a judicial officer, and the Plaintiff had never been formally ordered to attend an examination for discovery. Further, I find that the Defendant has not demonstrated that its ability to defend the claim would be prejudiced by the Plaintiff being ordered to attend to be examined. As set out below, the Defendant’s right to move to dismiss the action for delay after the examination for discovery is preserved.

[81] Thus, I am giving the Plaintiff a last chance to comply with her discovery obligations under the Rules of Civil Procedure. The relevant terms are set out below. If the Plaintiff fails to comply with this “last chance order”, she should expect, in light of the procedural history of this matter, that her action will be dismissed in the absence of exceptional circumstances.

2. Events following the June 20, 2022 Endorsement

[7] On June 28, 2022, counsel for the Defendant sent the following letter to the Plaintiff (which was dated June 27, 2022) (“June 28, 2022 Letter”):

Please find enclosed a copy of Justice Vermette’s decision dated June 20, 2022 (the “Order”) with respect to the Defendant’s motion to dismiss the above noted action.

Pursuant to the Order, we are requesting that you provide us with an updated Affidavit of Documents, and Schedule “A” productions containing all of the relevant documentation in your possession, including but not limited to the below documentation:

Please note that pursuant to the Order, you are required to provide all relevant documents in your possession, control, or power that have not already been provided to the Defendant no later than August 26, 2022.

Should you need to make requests for any documentation from a third party, pursuant to the Order, these requests are to be made as soon as possible.

Further to the Order, we are prepared to agree to reasonable accommodations for your in-person examination for discovery. Please provide us with a list of your requested accommodations for your in-person examination for discovery for our review and consideration no later than July 11, 2022.

The Order requires that your in-person examination for discovery take place no later than September 30, 2022. Please provide us with your availability for your in-person examination for discovery in the months of August and September no later than July 11, 2022.

[Emphasis in the original.]

[8] After sending the June 28, 2022 Letter, counsel for the Defendant sent a number of follow-up e-mails to the Plaintiff. On August 18, 2022, counsel for the Defendant sent another follow-up e-mail to the Plaintiff in which she reminded the Plaintiff that: (a) she was required to produce all relevant documentation no later than August 26, 2022, and (b) an examination for discovery needed to be scheduled pursuant to the Court’s order. Counsel for the Defendant wrote: “Please provide us with your availability for examinations for discovery in the month of September, no later than August 25, 2022, failing which we will unilaterally schedule the discoveries.”

[9] On September 22, 2022, counsel for the Defendant sent the following e-mail to the Plaintiff:

Given your failure to provide us with your availability for examinations for discovery, we have proceeded to unilaterally schedule your examination for discovery to be held in-person on Tuesday, September 27th, 2022 at 10:00am at Network Downtown located at 100 King Street West, in suite 3600.

As you are aware, and we have advised you many times subsequently, the Order of Justice Vermette requires your examination for discovery to take place no later than September 30, 2022.

Please be advised you are also in breach of the attached Order of Justice Vermette as you have failed to provide the outstanding documentation we have requested, as required by August 26, 2022.

Please confirm you will be in attendance at your discovery on Tuesday, September 27, 2022. [Emphasis in the original.]

[10] The e-mail attached a Notice of Examination to the Plaintiff requiring her to attend an examination for discovery on September 27, 2022 at 10 a.m.

[11] While the Plaintiff did not respond to the questions of the Defendant regarding production of documents, accommodations and her availability for the examination for discovery, she sent a number of e-mails during the same period to various recipients – including the Court of Appeal, the Divisional Court, my assistant, the Ministry of the Attorney General, the Law Society of Ontario, LAWPRO, counsel for the Defendant and others – in which she made a variety of allegations. In response to such an e-mail sent by the Plaintiff on September 23, 2022, counsel for the Defendant wrote as follows on September 24, 2022:

The Order of Justice Vermette (again attached) is clear, which is that your examination for discovery is to take place by September 30, 2022. Justice Corbett, cited by Justice Vermette, clearly stated that the herein action is not stayed despite your attempts to seek judicial review and appeal various decisions, see paragraph 49 of Justice Vermette’s Order, which states:

“Justice Corbett expressly cautioned the Plaintiff that “the proceedings below are not stayed pending decision on the motion for leave to appeal.”

Therefore, we are entitled to move this action forward to discoveries even though you are attempting to seek judicial review/appeals, which we maintain have not been properly submitted and are now out of time.

We requested that you advise of any accommodations you require for your examination numerous times and we did not receive any requests for accommodations from you. With respect to you [sic] representation, you have had over two years now to appoint counsel and have failed to do so. We are not agreeable to adjourning your examinations for discovery scheduled for September 27, 2022.

Kindly confirm that you will be in attendance at your examination for discovery on Tuesday, September 27, 2022, to ensure compliance with the Order of Justice Vermette.

We demand that you stop including non-parties to the herein litigation in your email correspondence with us and the Court.

[12] The Plaintiff did not attend her examination for discovery on September 27, 2022, and counsel for the Defendant obtained a Certificate of Non-Attendance. Counsel for the Defendant sent a copy of the Certificate of Non-Attendance to the Plaintiff by e-mail later that day, and advised her that they would proceed to schedule a case conference.

[13] On October 14, 2022, legal counsel in the Office of the Executive Legal Officer of the Court of Appeal sent a letter to the Plaintiff reminding her that Justice Rouleau had dismissed her motion to extend time to file a motion for leave to appeal on March 17, 2022, and advising her that the Court of Appeal had closed its file.

3. October 31, 2022 Endorsement

[14] Further to the June 20, 2022 Endorsement, counsel for the Defendant contacted my assistant on October 17, 2022 to request a case conference before me. The subsequent exchanges of e-mails are summarized in my endorsement dated October 31, 2022 (“October 31, 2022 Endorsement”). Given: (a) the apparent impossibility to find a date on which the Court and the parties were available before the end of 2022, and (b) the fact that the only issue to be discussed at the case conference was the scheduling of a motion to dismiss the action, I issued a timetable and directions to the parties in writing (i.e., the October 31, 2022 Endorsement) without holding a case conference in order to avoid undue delay.

[15] In the October 31, 2022 Endorsement, I ordered that the Defendant’s motion to dismiss the action due to the Plaintiff’s alleged failure to attend an examination for discovery as ordered would be heard by me in writing, unless I ordered otherwise. I also ordered the following:

The Defendant is to deliver its motion materials by November 21, 2022. The evidence filed on this motion should only deal with events that occurred after June 20, 2022. Evidence that does not comply with this direction will not be considered.

The Plaintiff is to deliver her responding materials by December 12, 2022. The evidence filed on this motion should only deal with events that occurred after June 20, 2022. Evidence that does not comply with this direction will not be considered.

Cross-examinations, if any, are to be completed by January 6, 2023.

The Defendant’s Factum is to be delivered by January 16, 2023. The Factum shall be double-spaced, shall not exceed 15 pages and is not to reargue anything that was decided in my endorsement dated June 20, 2022.

The Plaintiff’s Factum is to be delivered by February 3, 2023. The Factum shall be double-spaced, shall not exceed 15 pages and is not to reargue anything that was decided in my endorsement dated June 20, 2022.

If a party would like the motion to be argued orally instead of in writing, they are to include in their Factum a section explaining why, in their view, an oral hearing is necessary. I will consider the parties’ positions on this point and, if deemed advisable, a one-hour case conference will be scheduled to hear oral arguments. [Emphasis added.]

[16] I note that neither the Plaintiff nor the Defendant requested an oral hearing for this motion in their respective facta.

[17] On December 1, 2022, I issued an endorsement amending the timetable above so as to give to the Plaintiff until December 15, 2022 to deliver her responding materials.

4. Motion materials filed by the parties

[18] The Defendant filed the affidavit of one of its counsel which attaches correspondence that was exchanged after the June 20, 2022 Endorsement. The Defendant also filed a factum.

[19] The Plaintiff filed the affidavit of her father, Michael John Hordo, and a factum.

[20] While the Defendant complied with the orders and directions set out in the October 31, 2022 Endorsement, the Plaintiff did not. Most of the evidence adduced by the Plaintiff is with respect to events that occurred before June 20, 2022. A large portion of the Plaintiff’s motion materials deals with the merits of her action or irrelevant issues. [^1] Further, the affidavit and factum filed by the Plaintiff reargue points that were decided in the June 20, 2022 Endorsement. [^2]

B. Discussion

[21] I rely on paragraphs 73-81 of the June 20, 2022 Endorsement, which contain a discussion of the applicable law regarding the dismissal of an action for failure to attend an examination for discovery and the application of the law to the facts of this case.

[22] In addition to the factual and procedural background that existed at the time of the June 20, 2022 Endorsement, the Plaintiff has now failed to attend a court-ordered examination for discovery without any valid excuse. The evidence filed on this motion by the Plaintiff does not provide any valid explanation or justification for her failure to produce documents relevant to the litigation, respond to the Defendant’s requests to schedule an examination for discovery and attend an examination for discovery. While the June 20, 2022 Endorsement provided for a process that allowed the Plaintiff to request accommodations, she did not do so.

[23] The Plaintiff argues that the Defendant could not bring this motion as there is an outstanding appeal before the Court of Appeal. Based on the record before me, it is unclear whether there is any outstanding appeal, [^3] but, in any event, an outstanding appeal does not stay the orders that I made on June 20, 2022. Further, parts of the Plaintiff’s argument on this point do not comply with the October 31, 2022 Endorsement which states that the parties’ facta are not to reargue anything that was decided in the June 20, 2022 Endorsement. The issue of the absence of a stay was addressed in the June 20, 2022 Endorsement, notably at paragraphs 66-67.

[24] The Plaintiff also reargues that the Defendant should be barred from bringing this motion because it has allegedly been in breach of the Statutory Accident Benefits Schedule, O. Reg. 34/10 for numerous years. This argument was rejected at paragraph 68 of the June 20, 2022 Endorsement.

[25] In addition, the Plaintiff makes arguments based on the fact that a formal order has apparently not been prepared in relation to the June 20, 2022 Endorsement. This argument has no merit. An order is effective from the date on which it is made: see Rule 59.01 of the Rules of Civil Procedure. I made clear orders in the June 20, 2022 Endorsement (see paragraph 96) and the October 31, 2022 Endorsement.

[26] The Plaintiff also raises allegations of bias against me. She has made allegations of bias against me at every step of the way since I was appointed as Case Management Judge. I dealt in detail with, and rejected, the allegations of bias raised by the Plaintiff in my first decision on a motion in this matter: see 2021 ONSC 6193 at paras. 45-61. I rely on the discussion of the applicable legal principles set out in this decision. I also dealt with other allegations of bias made by the Plaintiff in subsequent endorsements, such as her repeated allegation that I had a private case conference with her former lawyer, which is a complete fabrication. [^4]

[27] The test for bias is an objective one. While it is not unusual that a losing litigant honestly and, from their perspective, reasonably perceives the proceedings as unfair and the judge as partial, to equate that personal perception of bias with a reasonable apprehension of bias is to incorrectly use a subjective and inherently partial perspective to decide whether a proceeding was conducted impartially: see Peart v. Peel Regional Police Services at para. 54 (Ont. C.A.). The personal opinion of the losing litigant as to the quality and correctness of the court’s decision counts for little when assessing a partiality claim: see Beard Winter LLP v. Shekhdar, 2016 ONCA 493 at para. 11 (“Beard Winter”).

[28] Judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. See Beard Winter at para. 10.

[29] When one distills the Plaintiff’s allegations of bias, they amount to the assertion that any judge who does not find in her favour is biased. I note that the Plaintiff has made allegations of bias against the Court of Appeal for Ontario after receiving unfavourable decisions. For example, she wrote the following in an e-mail to the Executive Legal Officer of the Court of Appeal sent on November 25, 2022:

It is reasonable inference that the ONCA, its judges, officers and registrars are inherently biased against my person for raising the matter of the Constitutional and Legal rights being breached by a cornerstone of the Administration of Justice in Ontario, Law Society of Ontario (“LSO”) and for being too closely connected with LSO and their power under the Constitution to appoint judges. This is evidence by the wilful judicial bias in dealing with the resultant frauds, forgery, uttering by this very cornerstone of the Administration of Justice, and which was conceived historically to protect the public consumers of legal services in Ontario (of which my family and I are parties).

[30] The Plaintiff has also alleged that she has been “threatened” by the Divisional Court.

[31] As stated above, the Plaintiff’s subjective perspective and personal perception of bias cannot be equated with a reasonable apprehension of bias.

[32] Contrary to the position adopted by the Plaintiff, allowing this motion to dismiss to proceed does not constitute an “indicia of bias”. This motion is proceeding in accordance with the June 20, 2022 Endorsement, in which I gave the Plaintiff another chance to comply with her discovery obligations under the Rules of Civil Procedure. Further, I addressed in the October 31, 2022 Endorsement the motions that the Plaintiff wishes to bring and why this motion needed to proceed first. I will not repeat what I held in prior endorsements.

[33] Ultimately, I reject the Plaintiff’s allegations of bias. In my view, simply yielding to the Plaintiff’s entirely unreasonable and unsubstantiated allegations of bias would do a disservice to the administration of justice.

[34] In any event, the Plaintiff’s allegations of bias do not constitute a valid excuse for not attending a court-ordered examination for discovery.

[35] Based on the evidence before me, I find that the Plaintiff deliberately failed to comply with the orders set out in my June 20, 2022 Endorsement.

[36] In my view, this is an appropriate case for the Court to exercise its discretion to dismiss the action. The June 20, 2022 Endorsement expressly gave the Plaintiff a last chance to comply with her discovery obligations under the Rules of Civil Procedure, and stated that if she failed to comply with this “last chance order”, she should expect that her action would be dismissed in the absence of exceptional circumstances. The Plaintiff did not even attempt to show that her failure to attend an examination for discovery was due to exceptional circumstances.

[37] The Plaintiff’s non-compliance with the June 20, 2022 Endorsement and her discovery obligations under the Rules of Civil Procedure is contumacious. In my view, the following statements made by Kiteley J. in Cardoso v. Cardoso [1998] O.J. No. 841, 22 C.P.C. (4th) 134 at para. 19 (Ont. Gen Div.), apply to this case:

Rule 34.15(1) gives the Court wide discretion to require re-attendance, to dismiss the action, to strike out evidence or to “make such other order as is just”. In motions such as this, the plaintiff is often given a further opportunity to comply with its obligations. In this case, it is pointless. It is clear from the answers to date on critical questions arising from the pleadings, that the plaintiff will not fulfil her disclosure obligations. The defendants have rights to full disclosure. Those rights have been undermined and resisted by the plaintiff. There is no prospect that the rights of the defendants will be respected. In these circumstances, there is no alternative but to dismiss the plaintiff's claim. Accordingly, the action as against Abraham B. Davis and Celestino Gabriel is dismissed.

[38] The Plaintiff was granted an indulgence, but she subsequently failed to comply with the Court’s order. Granting a further indulgence to the Plaintiff would be pointless as she clearly has no intention to fulfil her discovery obligations. It would also prejudice the Defendant as there is no prospect that its discovery rights will be respected, and it would cause further delay in an action where the delay has been significant. A plaintiff does not have an untrammeled right to have their case heard. In order to be heard, a case must be processed in accordance with the Rules of Civil Procedure. Non-compliance with the Rules in this case has reached a point where it can no longer be excused. I note that in addition to her non-compliance with the orders set out in the February 20, 2022 Endorsement, the Plaintiff has disregarded other court orders and directions in the past (see, e.g., 2021 ONSC 7229 at para. 7) and she has been found to have engaged in vexatious conduct (see, e.g., 2021 ONSC 7908 at para. 3, 2021 ONSC 7229 at para. 9, and 2022 ONSC 5980 at paras. 13, 15, 16). In light of the foregoing, the dismissal of the action is warranted in order to protect the integrity of the justice system from abuse by an ungovernable litigant. See Starland Contracting Inc. v. 1581518 Ontario Ltd. at paras. 25, 27-29 (Ont. Div. Ct.).

C. Conclusion

[39] Accordingly, the Defendant’s motion is granted and the action is dismissed.

[40] While the Defendant included submissions on costs in its Factum, it did not include a bill of costs. [^5] As a result, this Court cannot rule on the issue of costs at this time.

[41] If costs cannot be agreed upon with respect to this motion and the action, the Defendant shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, by June 16, 2023. The Plaintiff shall deliver its responding submissions (with the same page limit) by June 29, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: June 5, 2023

Footnotes

[^1]: I find it very concerning that Mr. Hordo attached to his affidavit a memorandum dated August 8, 1991 prepared by Tony Clement at the time that the latter was practicing law with Mr. Hordo. In addition to being completely irrelevant, the memorandum may contain confidential and/or solicitor-client privilege information.

[^2]: The Affidavit of Michael John Hordo contains a substantial amount of argument, opinions and comments, which are all inadmissible: see Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962 at paras. 20-21.

[^3]: I note, among other things, that it has been almost a year since I issued the June 20, 2022 Endorsement. One would expect that an appeal from the orders set out in that endorsement would have been perfected by now and that all appeal materials would have been filed. There is no evidence before me that this is the case.

[^4]: This allegation was addressed in my endorsement dated December 1, 2022.

[^5]: I note that the Factum asks for costs of the motion returnable March 2, 2020. These costs have already been granted: 2022 ONSC 5980.