Court File and Parties

Court File No.: CV-18-00610896 Motion Heard: 2024-12-06 Released: 2024-12-12 Superior Court of Justice - Ontario

Re: Mark Varnam, Plaintiff And: Glenn Crombie and Lukas Crombie, Defendants

Before: Associate Justice Jolley

Counsel: Jessica Radersma, counsel and Sikandar Chaudhry, student at law, for the moving party defendants Mark Varnam, self-represented responding plaintiff

Heard: 6 December 2024

Reasons for Decision

A. Overview

[1] The defendants seek an order dismissing this 2018 action for delay. Despite the passage of almost six years since the statement of claim was issued, the plaintiff has not delivered his affidavit of documents and, consequently, the action has stalled.

[2] The defendants rely on rules 3.04(4), 24.01(1) and 60.12(b), in support of their motion.

B. Relevant Facts

[3] Since pleadings closed in May 2021, the defendants have made multiple efforts to obtain the plaintiff’s affidavit of documents and to schedule examinations for discovery. A review of the record demonstrates that the defendants have been scrupulously fair with the plaintiff, who is self represented, and provided him with many opportunities and reminders of his obligation to produce his affidavit of documents.

(a) Follow up by the defendants in 2021

[4] The defendants wrote to the plaintiff in July, August, and November 2021 to request his affidavit of documents and his availability for examinations for discovery. He did not respond to any of those emails until December 2021 when he advised that he did intend to continue with his claim, but stated “my clients are my priority right now”. He indicated that he could not address the issues raised until after the New Year. The action was three years old at that stage.

(b) Follow up by the defendants in 2022

[5] When the defendants did not hear back from the plaintiff in the New Year, they wrote him in February, March and May 2022 asking whether he intended to proceed with his action. When there was no response to those emails or letters, the defendants wrote to the plaintiff in July 2022 and requested a response within 30 days, failing which they advised him that they intended to bring a motion. It was not until August that the plaintiff responded and then only to advise that he was unable to attend to the matter due to the accident in question and other factors.

[6] As the action was not progressing, the defendants proceeded in November 2022 to book a motion to dismiss the action for delay, which they scheduled for 1 September 2023. They served the plaintiff with the notice of motion in November 2022 so he had nine months’ notice that the defendants would be seeking an order dismissing his action for delay if he continued to let it languish.

(c) Follow up by the defendants in 2023

[7] In a further attempt to obtain an affidavit of documents and avoid a motion, the defendants wrote to the plaintiff in January 2023 advising that they would request a case conference and seek a proposed timetable. The plaintiff responded in February 2023 that he would “not be in a position to meet any timelines in March or April “but may be able to deal with this litigation by May 2023”. At that point pleadings would have been closed for two years.

[8] In response, the defendants wrote the plaintiff in late February 2023 advising him “if we can agree on a date for the examinations for discovery, the motion can be avoided altogether and your case can proceed in the normal course.” After some additional follow up emails, the plaintiff agreed to a case conference. In August 2023 the defendants sent the plaintiff a proposed timetable.

[9] The case conference took place in August 2023 and resulted in an order of Associate Justice McAfee. The order required the parties to deliver a sworn or affirmed affidavit of documents by 31 October 2023 and to complete examinations for discovery by 29 March 2024. The plaintiff was also required to set the action down for trial by 13 December 2024. In exchange, the defendants withdrew their motion to dismiss the plaintiff’s action for delay. It is of note that this order was as a result of the defendants’ efforts to move the action forward and that the plaintiff consented to it.

[10] Relying on the court order, the defendants scheduled discoveries in September 2023 for November 10, 14, 21 and 24, 2023. This was to accommodate the plaintiff’s request that the discoveries take place on non-consecutive days and for half days only. When the defendants did not receive the plaintiff’s affidavit of documents by the 31 October 2023 deadline, they wrote to him reminding him of the court order and indicating that they would be required to cancel the scheduled examinations for discovery without the affidavit and would reinstate their motion to dismiss for delay.

[11] In November 2023, when the defendants sought the plaintiff's availability for a motion, he asked them to postpone bringing any motion and indicated that he would organize his materials over the holidays and provide the defendants with his list in the New Year.

(d) Follow up by the defendants in 2024

[12] The affidavit of documents was not forthcoming, but the plaintiff did send an email on 10 January 2024 indicating that he would deliver it “as soon as possible.” Some days later, the defendants reached out to the plaintiff to obtain his availability for this motion. The plaintiff chose his preferred date of 6 December 2024 and the defendants booked that date eleven months in advance.

[13] Despite having booked the motion months earlier, in August 2024, counsel for the defendants advised the plaintiff that if he served his affidavit of documents by 7 October 2024, she would speak to her clients about whether the December motion to dismiss for delay was necessary. The plaintiff did not respond. The defendants followed up on August 27 and September 17, 2024.

[14] The plaintiff emailed on 23 September 2024, advising that he would respond later that week. He then sent a further email on 1 October 2024 which included his request that the defendants simply withdraw their motion. As of the date of the motion, 6 December 2024, the plaintiff had not delivered an affidavit of documents.

C. Material on the motion

[15] The plaintiff did not serve, file or upload any responding materials for this motion. He advised at the start of the hearing that he had sent defendants’ counsel multiple emails at approximately 4:00 or 5:00 a.m. that morning. He asked that he be permitted to send the multiple emails to me for my consideration before I released my decision.

[16] I refused his request for two reasons. First, it would have been unfair to the defendants, who had not any time to review the emails, for me to rely on them. Second, the plaintiff had known about this motion for eleven months. It was unfair to the defendants and to the court to accept such late materials or be asked to adjourn a motion that had been booked on consent almost a year ago and had been in the works for two years.

D. The plaintiff’s explanation

[17] The plaintiff offered two explanations for his failure to provide an affidavit of documents since 2021. First, he advised that he has been busy with other important things. Second, he took the position that he could not swear the oath required in the affidavit of documents that he had produced all his documents when he knew he had other documents that he had not had time to review and assemble.

[18] While I accept that the plaintiff has been busy, the defendants cannot be prejudiced by this amount of delay because the plaintiff has prioritized other matters. He indicated that he has a busy immigration consulting practice and his clients take priority. While that is laudable, it cannot excuse his failure to comply with his obligations to the court.

[19] He also indicated that he had been occupied with two other litigation matters. The first was litigation brought by his commercial landlord and the second was litigation by his residential landlord.

[20] He requested that, rather than dismissing his action, I order a peremptory timetable requiring him to serve an affidavit of documents by the end of February 2025. The difficulty I have with that request is I have no confidence that the plaintiff would obey my order any more than he did the order of McAfee, A.J. in August 2023.

E. The law and its application to these facts

[21] Rule 60.12(b) provides the court with authority to dismiss an action in circumstances, as here, where a party has failed to comply with an interlocutory order. Rule 3.04(4) provides that same relief specifically with respect to a party’s failure to comply with a timetable order.

[22] Rule 24.01 permits a defendant to move to have an action dismissed for delay where the plaintiff has not set it down for trial within six months after the close of pleadings.

[23] While preferring to have matters heard on their merits, the court must also be mindful of upholding its own orders and ensuring that they are not disregarded or take a back seat to a party’s subjective more pressing interests. (see Leblon Carpentry v. QH Renovation & Construction Corp., 2023 ONSC 3182).

[24] While the plaintiff acknowledges that the delay was unfortunate, I find it was also intentional. The plaintiff determined to focus his time and energy on other matters, to the detriment of this action for at least the last 3 ½ years. While the plaintiff may not view his actions as inappropriate or disrespectful, his multi-year delay in serving his affidavit of documents has prevented the defendants from examining him for discovery on an accident that took place more than eight years ago.

[25] I echo the comments of my colleague Associate Justice Robinson in 1833761 Ontario Inc. v. 2253659 Ontario Inc., 2024 ONSC 5336, where he held at paragraph 4:

I accept that Mr. Yehya has not forgotten this proceeding and has intended to pursue it. However, he has never prioritized it. In my view, plaintiffs cannot bring substantial claims in the court system and expect that both defendants and the court will let them move their actions forward only when it is convenient for them to do so. That is, in essence, the explanation for delay given by the plaintiffs here: Mr. Yehya's personal circumstances were such that he could not advance this action ...

[26] While the plaintiff in this case, like Mr. Yehya, above, argues that his personal circumstances prevented him from moving this action forward, I note that those circumstances did not impact his ability to retain counsel initially, to, as a self-represented defendant, successfully bring a motion against his commercial landlord to set aside a default judgment against him or to manage his immigration consulting practice.

[27] I am satisfied that the delay gives rise to a risk that a fair trial of these issues will not be possible. The plaintiff himself has noted that the defendants have a very different view of how the motor vehicle accident occurred. Given the accident took place in 2016, memories of the participants and witnesses are critical and they have not even been tested at examinations for discovery. The court in Deutsch Postbank AG v Kosmayer, 2019 ONSC 6997 noted in that case that the significant passage of time since the events in question would impact the witnesses’ ability to offer reliable evidence. It also held at paragraph 38 that “because there have not yet been any examinations for discovery, these witnesses cannot even rely on the discovery transcripts to refresh their memories. Similarly, this Court would be deprived of the benefit of such evidence.”

[28] In Kosmayer, pleadings had been closed for eight years by the time the motion to dismiss was heard. There had been no examinations for discovery and no meaningful steps to advance the litigation, other than the exchange of affidavits of documents, which has not occurred in the case before me. The court dismissed the action, recognizing that inordinate delay results in prejudice.

[29] The plaintiff has not rebutted the presumption of prejudice noted in Langenecker v Sauvé, 2011 ONCA 803 as follows:

The third requirement is directed at the prejudice caused by the delay to the defence's ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defences flowing from that delay ...

[30] The plaintiff has not attested that he has preserved all relevant documents, that he has spoken to the witnesses he needs or that he can now proceed expeditiously with this action.

[31] The delay in this case is simply too extensive to permit a fair trial which, at this stage, which would take place at least eleven years after the accident.

F. Conclusion

[32] In this case, all attempts to move the action forward have been initiated by the defendants. More than sixteen months after agreeing to provide his affidavit of documents, the plaintiff remains in default of that consent order, an order to which the defendants agreed in lieu of their first position that the action should have been dismissed for delay back in 2023.

[33] There has been inordinate delay in moving this action forward. There is no reasonable explanation proffered that would excuse the delay. As a result of the delay, I find there is a substantial risk that a fair trial will not possible. Given the competing versions of how the accident occurred, and the lack of confirmation that the plaintiff has kept all relevant documents, I accept the defendants’ argument that their ability to defend the action has been compromised due to the inordinate and inexcusable passage of time.

[34] Further, the plaintiff is in breach of a court order, without reasonable explanation, warranting the dismissal of his action under rules 3.04(4) and 60.12(b). For all the reasons set out above, the defendants’ motion is granted.

[35] The defendants seek a modest all-inclusive amount of $3,238.13 as their partial indemnity costs of this motion. They have not sought costs of the steps they took along the way to attempt to move this action forward. I find the costs sought to be reasonable in all the circumstances and an amount that the plaintiff should have expected to pay in the event the defendants were successful.

[36] Order to go dismissing this action with costs fixed in the all inclusive amount of $3,238.13 on a partial indemnity basis, per the draft order which I have signed. The order is effective without further formality.

Associate Justice Jolley Date: 12 December 2024