COURT FILE NO.: CV-17-00579778-0000 DATE: 20240307
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tadesse Gebremariam v. Kelli Burke et al
BEFORE: Associate Justice Rappos
COUNSEL: Matthew Stanley, for the Defendant Kelli Burke Tadesse Gebremariam, self-represented
HEARD: March 5, 2024 (in person)
E N D O R S E M E N T
Nature of Motion
[1] The Defendant, Kelli Burke, brings a motion for an order under rule 60.12 of the Rules of Civil Procedure dismissing the action as a result of the failure of the Plaintiff, Tadesse Gebremariam, to serve a sworn affidavit of documents as required by the Order of Master Abrams (as she was then titled) dated May 17, 2021, and the failure of the Plaintiff to serve a notice of appointment of lawyer as required by the Endorsement of Associate Justice McAfee dated September 7, 2023.
[2] For the reasons set out below, the Defendant’s motion is hereby granted, and this action is dismissed with costs.
Factual Background
[3] This action concerns a motor vehicle accident alleged to have occurred on April 15, 2014.
[4] The action was commenced on July 27, 2017. It was originally started against Kelli Burke and Intact Insurance as Defendants.
[5] The action was dismissed against Intact Insurance pursuant to the Endorsement of Justice Cavanagh dated August 16, 2019.
[6] The Defendant delivered a statement of defence on December 13, 2019.
[7] The Defendant brought a motion in May 2021 for an order requiring Mr. Gebremariam to serve a sworn affidavit of documents and Schedule “A” productions.
[8] Pursuant to the Order of Master Abrams dated May 17, 2021, the Court ordered that Mr. Gebremariam was required to serve the documents by July 6, 2021, “failing which the moving party may move, on notice, to dismiss the within action with costs.”
[9] Based on my review of the motion materials, no sworn affidavit of documents has been delivered by Mr. Gebremariam to date.
[10] The Defendant brought a motion in September 2023 for an order dismissing the action as a result of Mr. Gebremariam’s failure to comply with the Order of Master Abrams. Notice of the motion was provided in November 2022. The motion was heard on September 1, 2023.
[11] Pursuant to an Endorsement of Associate Justice McAfee dated September 7, 2023, Associate Justice McAfee granted an adjournment of the motion to permit Mr. Gebremariam an opportunity to retain a lawyer. Associate Justice McAfee held that “If a notice of appointment of lawyer is not served within 60 days of today’s date, the moving defendant may proceed to schedule the return of this motion.”
[12] A notice of appointment of lawyer has not been filed by Mr. Gebremariam with the Court, nor has one been served on the Defendant.
Analysis – Compliance with Court Orders
[13] The Court has discretion, under subrule 60.12(b) of the Rules of Civil Procedure, to dismiss a party’s proceeding where that party fails to comply with an interlocutory order.
[14] An interlocutory order is an order “that determines an issue collateral to the real matter in dispute in the litigation, and not the real matter in dispute itself.” It disposes of the issue raised, most often a procedural issue, but the litigation proceeds. Hendrickson v. Kallio; 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, para. 7.
[15] In my view, both the Order of Master Abrams and the Endorsement of Associate Justice McAfee are interlocutory orders, as they disposed of procedural issues that were collateral to the real matter in dispute in the litigation, which is Mr. Gebremariam’s claim in connection with the motor vehicle accident.
[16] On the issue of compliance with the Order of Master Abrams, Mr. Gebremariam said he has delivered documents to the Defendant, but he could not confirm that a sworn affidavit of documents had been served by him on counsel to the Defendant.
[17] Counsel to the Defendant represented to the Court that Mr. Gebremariam has not served a sworn affidavit of documents to date in contravention of the Order of Master Abrams.
[18] Based on my review of the materials, no sworn affidavit of documents has been produced by Mr. Gebremariam.
[19] As a result, I am satisfied that Mr. Gebremariam has failed to comply with the Order of Master Abrams, which was granted almost three years ago.
[20] With respect to compliance with the Endorsement of Associate Justice McAfee, Mr. Gebremariam argues that he is represented by the law firm of Diamond & Diamond and is no longer self-represented.
[21] In support of this fact, he handed up to the Court a copy of an Automatic Reply e-mail dated February 29, 2024 from a lawyer at Diamond & Diamond, which was in response to a letter he sent to them requesting that they represent him in this action.
[22] Mr. Gebremariam also copied an intake clerk at Diamond & Diamond on his responding motion record, and requested that they provide a lawyer to assist him with this action.
[23] Mr. Gebremariam was unable to confirm the name of a lawyer that he has retained. He was also unable to produce any documentation from Diamond & Diamond that confirms that the firm has been retained by him for this action.
[24] Subrule 15.03(3) of the Rules of Civil Procedure provides that a self-represented person may appoint a lawyer of record by serving on every other party and filing, with proof of service, a notice of appointment of lawyer giving the name, address and telephone number of the lawyer of record.
[25] Counsel to the Defendant confirmed that a notice of appointment of lawyer has not been served on the Defendant to date.
[26] Sending documents to a law firm and requesting that they represent you does not satisfy subrule 15.03(3) or Associate Justice McAfee’s Endorsement regarding service of a notice of appointment.
[27] Given that almost six (6) months have passed since the date of Associate Justice McAfee’s Endorsement, and a notice of appointment of lawyer has not been served, I am satisfied that Mr. Gebremariam has failed to comply with the Endorsement of Associate Justice McAfee.
Analysis – Dismissal of the Action
[28] Dismissing an action for failure to adhere to an interlocutory order is an “extreme remedy and a last resort” which ought to be very cautiously considered by the court. It is draconian in nature and should be invoked only in circumstances where there is demonstrated conduct of complete disregard for the court’s procedures and flagrant disrespect of the court’s authority. The breach of interlocutory order(s) must be “intentional, contumelious or without reasonable excuse or otherwise constitute an abuse of the court’s process”. Richardson v Cuddy, 2017 ONSC 3186, paras. 26-27.
[29] Dismissal under rule 60.12 may appropriately be granted where a party has demonstrated “a cavalier disregard of [its] obligations” or “by its failure or refusal to be bound by the rules and orders of the court [has] effectively abandoned its right to participate in the court process.” Dew Point Insulation Systems Incorporated v. JV Mechanical Limited, paras. 36-37.
[30] Failure to adhere to court orders must have consequences, failing which the orders become meaningless. Clifford Todd Monaghan v. Adam Mitchell Rose, 2018 ONSC 4975, para. 13. The right of access to the courts comes with a responsibility to abide by the Rules of Civil Procedure and to comply with orders of the court. A failure to enforce orders is not only unfair to the parties opposite; it also undermines respect for the court and the civil justice system. Lee v. McGhee, 2018 ONSC 6463, para. 4.
[31] The Defendant argues that the action should be dismissed, as Mr. Gebremariam has failed to comply with court orders and has not provided any excuse, reasonable or otherwise, for the failure.
[32] Mr. Gebremariam argues that the motion should be dismissed for two reasons. His first argument is that the accident was investigated by the Toronto Police Services, and as a result, the Court has no ability to dismiss the action in the face of an ongoing police investigation. He refers to section 139(2) of the Criminal Code (obstruction of justice provision), the Human Rights Code of Ontario, and section 15(2) of the Canadian Charter of Rights and Freedoms (equality provision).
[33] There is nothing in the materials before me that confirms that there was any police investigation of the motor vehicle accident at issue in the action. Even if there had been a police investigation, the accident occurred almost ten (10) years ago.
[34] Mr. Gebremariam copied the “Chief of Metropolitan Toronto Police Service” on his motion record, and sent a letter to Chief Myron Demkiw on February 28, 2024 with respect to this motion and requested that the police investigate this matter.
[35] The Toronto Police Service has not contacted the Court in connection with this motion.
[36] The Toronto Police Service is not a party to this action. An investigation by the police does not, in my view, inhibit the Court in any way from exercising its discretion under rule 60.12 to dismiss this civil action. The statutes cited by Mr. Gebremariam are not applicable to this case.
[37] The second issue raised by Mr. Gebremariam is that he was involved in the motor vehicle accident that a man named Kelli Burke, and the Defendant, represented by counsel at this motion is a woman named Kelli Burke. Mr. Gebremariam argues that a woman named Kelli Burke cannot bring a motion to dismiss his action as she was not involved in the motor vehicle accident.
[38] I inquired of counsel to the Defendant on this issue. I noted that there was no motor vehicle accident report in the record that would confirm the insurance information of the Kelli Burke that was involved in the accident. I also noted that paragraph 3 of the statement of defence states that Kelli Burke “was neither the driver nor the owner of a Toyota vehicle bearing license plate number BDJB243”.
[39] Mr. Stanley confirmed that paragraph 3 was simply broadly drafted language for the statement of defence, and that he had met with the insured Ms. Kelli Burke, who swore an affidavit of documents for this action. Mr. Stanley confirmed that there was never any suggestion that the individual he met with, Ms. Kelli Burke, was not involved in the motor vehicle accident at issue.
[40] Based on the submissions of the parties, I am satisfied that there is no issue concerning the proper identification of the Defendant in this action.
[41] The action was commenced over 6.5 years ago. Mr. Gebremariam has not served a sworn affidavit of documents to date. The fundamental obligation to disclose relevant documents and produce those that are not privileged should be performed automatically without the need for court intervention. Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, para. 43.
[42] The Defendant proceeded to obtain a court order compelling Mr. Gebremariam to deliver the documents. Almost three years have passed, and Mr. Gebremariam has provided no reasonable excuse as to why he has failed to comply with his obligations under the Rules of Civil Procedure and the Order of Master Abrams.
[43] Mr. Gebremariam was provided an indulgence by Associate Justice McAfee when the Defendant’s dismissal motion was returnable on September 1, 2023. McAfee A.J. granted an adjournment to allow Mr. Gebremariam to retain counsel. He has yet to do so.
[44] I echo the conclusion of Justice Ryan Bell in Lee v. McGhee, 2018 ONSC 6463 at paragraph 5, that in this case, Mr. Gebremariam has not abided by the Rules of Civil Procedure, he has not complied with court orders, and his conduct has reached the point where the interest of justice requires the dismissal of his claim as against the Defendant.
[45] Mr. Gebremariam has failed in his responsibility as a litigant to abide by the Rules of Civil Procedure and to comply with orders of the court. In my view, fairness dictates that the action be dismissed against the Defendant.
Disposition
[46] For the reasons set out above, I hereby grant the Defendant’s motion for an order dismissing the action.
[47] The Defendant seeks costs of the motion and action on a partial indemnity basis in the amount of $2,162.50. Mr. Gebremariam was provided an opportunity to respond to the amount of costs sought by the Defendant and refused to do so.
[48] I hereby fix costs of the action and motion in the amount of $2,000 all inclusive, payable by Mr. Gebremariam to the Defendant within 30 days.
[49] I hereby dispense with the need for Mr. Gebremariam’s approval of the form of the draft order. Order to go as electronically amended and signed by me.
Associate Justice Rappos
DATE: March 7, 2024