SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hossam Shaltout v. George Charalambous
BEFORE: Associate Justice Rappos
COUNSEL: Hossam Shaltout, self-represented Jennifer Lee, for the Defendant
HEARD: November 22, 2024 (via videoconference)
ENDORSEMENT
[1] The Defendant, George Charalambous, brings a motion for an order dismissing this action. The Defendant relies on subrules 24.01(c), 24.02(2), and 48.14(1) of the Rules of Civil Procedure in support of his request.
[2] Subrule 24.01(1)(c) provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings.
[3] Although not cited by the Defendant, subrule 24.01(2) provides that the Court shall, subject to 24.02(2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14(1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust.
[4] Subrule 48.14(1) of the Rules provides that, unless the Court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances (subject to certain exceptions): 1. the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action; 2. the action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
[5] This action was commenced on May 5, 2015. It has not been set down for trial to date.
[6] The set down deadline was first extended to December 31, 2021, and then to December 31, 2022, pursuant to consent orders of the Court. The Plaintiff, Hossam Shaltout, served a motion on December 20, 2022 for an order extending the time to December 31, 2023. That motion was originally returnable on December 19, 2023. For reasons that are not important for this decision, that motion was eventually scheduled to be heard by me on November 22, 2024.
[7] As a result, the Defendant asks the Court to dismiss the action for delay given the failure of the Plaintiff to set the action down for trial in the past 9.5 plus years.
[8] An issue that must be addressed is subrule 24.02 of the Rules. Subrule 24.02(1) provides that where the plaintiff is under disability, notice of a motion to dismiss an action for delay shall be served on the plaintiff’s litigation guardian and, if the litigation guardian is not the Public Guardian and Trustee (“PGT”), on the PGT in any other case. Subrule 24.02(2) provides that where the PGT has been served under subrule (1) but is not the plaintiff’s litigation guardian, the action may be dismissed under this rule only if the PGT confirms to the court that he or she was served and takes no position on the dismissal, unless a judge orders otherwise.
[9] I note that the term “judge” under the Rules does not include an associate judge.
[10] The Plaintiff does not have a litigation guardian to my knowledge. It is also not clear whether the Plaintiff is currently under “disability” pursuant to the Rules. Disability is defined to include a person mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not.
[11] The PGT previously had been appointed as temporary guardian for the Plaintiff pursuant to the Order of Justice Kimmel dated March 15, 2022. The PGT had initiated the application to have itself appointed as temporary guardian of the property of the Plaintiff. The Order provided that the Plaintiff was incapable of managing his property within the meaning of section 6 of the Substitute Decisions Act, 1992.
[12] In a letter dated November 21, 2022 from the Ministry of the Attorney General to the Plaintiff’s former lawyer, it was confirmed that the PGT had terminated the temporary guardianship as “the client was determined to be capable”.
[13] The PGT was not served with the Defendant’s motion for dismissal due to delay.
[14] Based on the materials filed and the submissions made to the Court during the hearing, I am concerned that the Plaintiff may again be under disability as defined in the Rules.
[15] The Defendant’s motion record includes a copy of a letter dated July 2, 2024 from Dr. Jeremy Pound. Dr. Pound is the Plaintiff’s family physician. In the letter, Dr. Pound states that the Plaintiff:
“has been diagnosed with complex physical (low vision, heart disease, chronic pain, etc.) and mental health (Mild cognitive impairment, personality disorder, Bipolar disorder) problems due to which he is not able to adequately represent himself in his ongoing civil court case. He is currently medically unable to proceed with any legal issues until he obtains legal representation to act on his behalf. He requests to postpone all legal procedures until his condition improves and at such a time as he has found a lawyer who will accept his case.”
[16] The Plaintiff stated that he is unable to represent himself in this case and that he has Alzheimer’s and is blind.
[17] The Defendant argues that Dr. Pound’s letter does not say that the Plaintiff does not understand implications of his actions. They argue that there is no evidence from a capacity assessor, and rely on section 2 of the Substitute Decisions Act, 1992, which provides that: (a) a person who is eighteen years of age or more is presumed to be capable of entering into a contract (subsection 2(1)); and (b) a person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be (subrule 2(3)).
[18] While I understand the Defendant’s frustration as this action is with respect to an incident that occurred over 11.5 years ago and has not proceeded to trial, in the circumstances, given the prior appointment of PGT as temporary guardian for the Plaintiff, and given the letter from Dr. Pound, the Defendant should have served the PGT with its motion record in accordance with subrule 24.02 of the Rules.
[19] As a result, as the PGT was not served with the motion, I am not prepared to render a decision on the merits of the Defendant’s motion at this time.
[20] The Defendant shall arrange for a case conference to be scheduled before me to deal with next steps in this proceeding. The Defendant shall contact PGT, provide it with a copy of his motion materials and this decision, and ensure that they will be available to attend the case conference.
[21] During the hearing, the Plaintiff asked that I recuse myself from this proceeding. He says that I am biased against him, due to my Endorsement dated June 20, 2024, where I declined his request for an adjournment of the case conference that was held on that day, and his request for an adjournment of the November 22, 2024 hearing.
[22] The Plaintiff informed me that he had made a complaint against me to the Judicial Council of Ontario, which had advised him in a letter dated November 20, 2024 that the Council had no jurisdiction to consider complaints about associate judges of the Superior Court of Justice. I advised the Plaintiff that he was previously informed by Associate Justice Robinson in his Endorsement dated March 27, 2024 that a request for recusal must be brought by way of motion before the judicial official who is asked to recuse her/himself. No motion was before me at the hearing on November 22, 2024.
[23] If the Plaintiff wishes to bring a recusal motion, a timetable may be discussed during the case conference. As well, depending on the position that the PGT may take in this proceeding, the case conference must also deal with whether the motions should be traversed to be heard by a judge given the language contained in subrule 24.02 of the Rules.
[24] The Defendant shall contact my Assistant Trial Coordinator Kimi Sharma to obtain dates that I am available for a case conference, and confer with the Plaintiff and the PGT to schedule the conference.
Associate Justice Rappos DATE: December 9, 2024