Court File and Parties

COURT FILE NO.: CV-20-2105 DATE: 20240314 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Braaksma Plaintiff – and – Daniel Silver, Justin Silver, Juliana Silver, Peter Braaksma, and Daniel Silver and Justin Silver in their capacities as Estate Trustees of The Estate of Margaret Josephine Silver, Deceased, The Estate of Lezley Silver, Deceased and The Estate of Allan Silver, Deceased Defendants

Counsel: Paul Portman, for the Plaintiff Daniel Silver, Self-Represented

HEARD: February 28, 2024

Reasons for Decision

CHARNEY J.:

[1] The Plaintiff, Kevin Braaksma, brings this motion for an Order striking out the Statement of Defence and Counterclaim and any Affidavits of the Defendants and permitting the Plaintiff to proceed to an expedited hearing on an uncontested basis without further notice to the Defendants.

[2] This is an estates case dealing with the validity of holographic wills and the distribution of the three Estates named as defendants in this action. The Plaintiff also seeks compensation or damages to be paid by the Defendants Justin and Daniel Silver for conversion, breach of fiduciary duty, misappropriation of funds, and constructive or resulting trust.

[3] The case was commenced by Notice of Application on August 5, 2020, and, pursuant to the Order of Casullo J. dated August 30, 2021, converted to an action. The Plaintiff served a Fresh as Amended Statement of Claim on October 19, 2021.

[4] The case was being case managed. Numerous case management endorsements and orders were made in an effort to move this matter along. On September 8, 2022, the case management judge ordered that examinations for discoveries were to be conducted on or before January 31, 2023.

[5] The Plaintiff complains that the Defendants have refused to cooperate with the scheduling of the cross-examinations. The Plaintiff argues that his counsel has tried to schedule the cross-examinations since September 2022 but received no response from the Defendants. The Plaintiff alleges that counsel for the Plaintiff wrote to the Defendants’ counsel on January 11, 2023, June 13, 2023, July 20, 2023, August 31, 2023 and September 8, 2023, but no dates were offered by the Defendants. In the absence of cooperation from the Defendants, the Plaintiff proceeded to schedule virtual examinations of the Defendants and served a Notice of Examination on September 19, 2023 with the examination scheduled for October 2, 2023.

[6] The Defendants did not attend the virtual examinations for discovery on October 2, 2023 and, after waiting the required time, counsel for the Plaintiff obtained a Certificate of Non-Attendance.

[7] On October 31, 2023, R.S.J. Edwards issued a scheduling Order permitting the Defendants to bring a motion for production and disclosure from the Estate Trustee During Litigation on February 21, 2024, and permitting the Plaintiff to bring the herein motion on February 28, 2024.

[8] The Plaintiff relies on Rule 34.15 of the Rules of Civil Procedure, which permit the Court to strike out a party’s defence for failure to attend an examination. The Court may also strike out a party’s defence for failure to comply with a timetable ordered by the Court (Rule 3.04(4)).

[9] Striking a defence is a remedy that is usually reserved for repeated and persistent failure to comply with court ordered timetables.

[10] The Defendants argue that the parties had agreed that the examinations for discovery could not be conducted on or before January 31, 2023. On January 5, 2023, counsel for the Defendants wrote to counsel for the Plaintiff to request an updated Affidavit of Documents “which includes all of the documents in the storage unit”. Counsel for the Defendants stated in this email:

I note that the order issued pursuant to the case conference contemplates examination occurring before January 31. Please advise if you intend to proceed with scheduling. We will need to review your updated Affidavit of Documents and given this motion, it makes sense to conduct the examinations at a later date.

[11] Counsel for the Plaintiff replied on January 11, 2023, indicating that they would be serving a Supplementary Affidavit of Documents “and suggest we schedule two days of examinations for discovery to be completed by the end of March, 2023. To this end would you kindly provide your clients’ availability”.

[12] The updated affidavit of documents was served. Unsuccessful efforts were made to schedule the examinations for discovery in March, 2023, although both sides did offer dates.

[13] After March 2023, the Plaintiff’s counsel continued to press the Defendants’ counsel for dates for examinations for discovery, and on July 20, 2023 advised the Defendants that if they did not hear back by July 27, 2023, they would schedule a date without further notice to the Defendants. Additional correspondence regarding the scheduling of dates for examinations for discovery was sent by the Plaintiff on August 31, 2023, offering dates in October and November 2023.

[14] On August 31, 2023, counsel for the Defendants advised counsel for the Plaintiff that it was the Defendants’ position that “examinations cannot proceed until the issue of tax liability is fully determined”.

[15] Counsel for the Plaintiff responded to advise that it was the Plaintiff’s position that examinations for discovery had to proceed first, and again asked for the Defendants’ availability.

[16] On September 11, 2023, Counsel for the Plaintiff received Daniel Silver’s Notice of Intention to Act in Person.

[17] On September 19, 2023, Daniel Silver wrote a lengthy letter to counsel for the Plaintiff citing a number of reasons why he did not want to be examined for discovery, including his intention to revise his affidavit of documents to include correspondence between counsel and his continued position that there should be no examinations for discovery until all issues of tax liability for the defendant estates were determined.

[18] On September 20, 2023, Counsel for the Plaintiff advised Mr. Silver as follows:

[We] will not agree to the rescheduling of the examinations or to delay this matter any further. In the event that you do not appear at the examinations on October 2, 2023, [counsel for the Plaintiff] will obtain a certificate of non-attendance and will be bringing a motion to compel your attendance and obtain further directions from the court.

Analysis

[19] This matter was being case managed. On September 8, 2022, the case management judge ordered that examinations for discoveries were be conducted on or before January 31, 2023.

[20] The parties were permitted to amend that schedule by agreement – Rule 3.04(1). The parties did agree to delay the examinations for discovery until after the Plaintiff served its updated Affidavit of Documents. So far so good.

[21] Once the updated affidavit of documents was served, the parties were still obliged to comply with the Order of the case management judge and conduct the examinations for discovery.

[22] The Defendant, Daniel Silver, refused to make himself available for examinations for discovery as required by the order of the case management judge. In the absence of an agreement between the parties, the Defendant could not unilaterally decide to further delay or avoid the examinations for discovery.

[23] If the Defendant was of the view that examinations for discovery should not take place until all estate tax liability issues were determined, it was incumbent on the Defendant to request another case conference with the trial management judge to seek to amend the timetable ordered by the Court. He cannot simply refuse to comply with a court ordered timetable.

[24] Rather than striking the Statement of Defence, it is preferable to see if we can get this action back on track. Daniel Silver, who is still self-represented, advises that he is available and willing to proceed with the examinations for discovery.

[25] Based on the foregoing, I will make the following Order:

[26] This Court Orders that the Defendant, Daniel Silver, will make himself available for an examination for discovery within 30 days from the date of this Order, to be conducted by the Plaintiff’s lawyer. If Daniel Silver does not attend the examination for discovery, the Plaintiff may bring a motion in writing for an Order striking out the Statement of Defence and Counterclaim and any Affidavits of the Defendants.

[27] The Plaintiff is presumptively entitled to costs for this motion. If the parties are not able to agree on costs, the Plaintiff may serve and file costs submissions of no more than three pages, plus costs outlines and any offers to settle, within 20 days of the release of this decision, and the Defendants may serve and file responding costs submissions on the same terms within a further 15 days.

Justice R.E. Charney Released: March 14, 2024