Mendoza v. Mendoza, 2025 ONSC 1328

CITATION.: Mendoza v. Mendoza, 2025 ONSC 1328

COURT FILE NO.: CV-24-00001504-0000

DATE: 2025 02 27

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

RE:

MENDOZA Graciela, applicant

AND:

MENDOZA Haander, respondent

MENDOZA Teresa, respondent

CRUZ Jonathan, respondent

CRUZ Charles, respondent

CRUZ Jessica, respondent

CRUZ Maude, respondent

CRUZ Mery, respondent

THE PUBLIC GUARDIAN AND TRUSTEE, respondent

BEFORE:

Justice Emery

COUNSEL:

ARORA Kartik agent for JUZKIW Stefan, for the applicant, MENDOZA Graciela

Email: kartik@juzkiw.com

GRAY John M., for the respondents, MENDOZA Haander, MENDOZA Teresa, CRUZ Charles, and CRUZ Maude

Email: john@johngray.ca

HEARD:

January 17, 2025, by video conference

REASONS FOR DECISION

1The respondents Haander Mendoza (“Haander”), Teresa Mendoza (“Teresa”), Charles Cruz and Maude Cruz bring this motion to dismiss the Application of Graciela Mendoza (“Graciela”) for her non-compliance with a court order. In the Application, Graciela is seeking orders with respect to obtaining management and control of Haander and Teresa’s affairs and assets.

Nature of the motion

2The motion is brought under Rule 60.12 on the grounds that Graciela did not serve any further evidence in support of the Application by October 1, 2024 or pay the $1,000 in costs awarded to the moving parties (the “respondents”) within 30 days, contrary to my endorsement dated September 16, 2024. That endorsement set out the Order I had made when I adjourned the Application on September 13, 2024 at Graciela’s request. She requested that adjournment to allow her to file further evidence that had come to the attention of her counsel (the “new evidence”). Her counsel advised the court that this new evidence related to the vulnerability of Haander and Teresa, as well as the results of a financial investigation.

3A timetable was ordered on September 13 with the consent of the parties. Under the Order, Graciela’s lawyer, Stephan Juzkiw, was to book a new hearing date for the Application over Calendly as he and Mr. Gray, the lawyer for the respondents, estimated it would take less than 59 minutes to hear. Counsel agreed on October 31, 2024 as the target date. That is the reason why the timetable was ordered for the service of further materials and factums by the parties throughout October in para. 6 of the endorsement.

4Specifically, the following timetable was ordered as a term of the Order to ensure all necessary evidence was before the court on October 31:

a. The applicant was to serve and file any and all further evidence, by October 1;

b. The respondents were to serve and file all responding material to that further evidence, by October 15;

c. The applicant was to file serve and file her factum by October 22;

d. The respondents were to serve and file their updated factum(s) by October 24; and

e. The applicant was to file an updated Confirmation of Motion Form for the Application by 2 p.m. on October 25, 2024.

5It is not clear from the motion materials whether the hearing date for the Application was actually booked by Mr. Juzkiw for October 31, 2024. In any event, Mr. Juzkiw left a message for Mr. Gray on October 24 that “we need to come up with a new date for the motion.” This message was followed by an email from Mr. Arora, an associate in Mr. Juzkiw’s office, that they were “finalizing their supplementary materials” and were not in a position to proceed with the hearing on October 31.

6In a letter dated October 31, 2024, Mr. Juzkiw asked Mr. Gray for his available dates in November and December to reschedule the Application.

7What is clear is that neither Graciela nor her counsel Stephan Juzkiw served any further material containing new evidence by October 1 when that material was due. Nor did Graciela pay the costs ordered payable within 30 days. Despite those failures to comply with the timetable ordered, further evidence was subsequently served in Mr. Juzkiw’s letter dated December 19 and filed with the court the following day. The costs ordered on September 13 were paid on Graciela’s behalf on January 1, 2025.

Positions of the parties

8The moving parties Haander, Teresa, Charles Cruz and Maude Cruz (the “respondents”) now seek an order dismissing the Application in its entirety because of Graciela’s failure to comply with terms of my Order dated September 13, 2024 in a timely way.

9In the alternative, Mr. Gray asks that the Application be dismissed for delay. He submits that Haander and Teresa have suffered prejudice caused by Graciela’s delay in having the Application heard.

10Graciela submits that she has now served the new evidence she had referred to on September 13, and that she has now paid the costs awarded that day. She submits that the law supports the proposition that each case should be decided on its merits, and that the dismissal of a proceeding for non-compliance with procedural orders is a remedy of last resort. Accordingly, Graciela asks that the motion be dismissed.

Law and discussion

Motion to dismiss for non-compliance

11The remedy that the respondents request is discretionary in nature. As with most matters within judicial discretion, the court is guided by principles that inform the exercise of that discretion.

12There are two lines of authority that set out principles on a motion to dismiss for non-compliance. While one line of cases may seem more adaptive to circumstances involving a breach of an order and the other line of cases appears to take a strict approach, the two lines are compatible when the context and facts of those cases are considered. Rather than diverging, the authorities converge on universal principles that recognize access to justice and the importance of having disputes adjudicated on their merits. The cases are generally decided differently when the court determines an outcome that is dependant on the terms of the order breached, and the number and nature of the infractions.

13The first set of cases is represented by Richardson v. Cuddy, 2017 ONSC 3186. In that case, the action had been administratively dismissed by the registrar for delay. The plaintiff had brought a motion to set that administrative dismissal aside. The defendant had brought its own motion to have the court dismiss the action in the event the plaintiff’s motion was granted. The defendant’s requested this order because of the plaintiff’s non-compliance with a timetable that had been ordered by the court with the consent of the parties.

14Master Mills (as she then was) stated at para. 5 that the court was particularly cognizant of the Court of Appeal’s decision in H.B. Fuller Company v. Rogers, 2015 ONCA 173 (at paras. 20-27) when exercising her discretion on a motion to dismiss for the failure of a party to comply with an order. Master Mills observed that the Court in H.B. Fuller reflected on the countervailing policies and recognized that the bias must always favour resolving disputes on their merits but is done in a manner “that is timely and efficient so as to ensure public confidence in the administration of justice is maintained at all times.”

15At para. 26 of Richardson v.Cuddy, Master Mills went on to recognize that dismissing an action for non-compliance with an interlocutory order is an “extreme remedy and a last resort” as follows:

26Dismissing 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.

16The court went on to grant the plaintiff’s motion to set aside the dismissal by the registrar, and to dismiss the defendant’s motion. Master Mills found that the threshold test for dismissing an action under Rule 60.12 is high, stating that the breach of an interlocutory order must be “intentional, contumelious or without reasonable excuse or otherwise constitute an abuse of the court’s process. She found that she could not characterize the plaintiff’s conduct in these terms, or find that the threshold test for dismissal of the action had otherwise been met.

17In contrast, Associate Justice Frank held in Daci v. 1062204 Ontario Inc. o/a Auto Show Place et al., 2022 ONSC 448 that a court may dismiss a proceeding of the adverse party, in addition to any other sanction, for failure to comply with an order. In Daci, the plaintiff had failed or refused to comply with the court orders made by three other Associate Justices as well as three prior orders he had made in a motor vehicle case. The defendants had brought a motion to dismiss the action for the plaintiff’s failure to comply with the preceding orders, or in the alternative for her failure to answer undertakings.

18For a party to belatedly comply with an order, Associate Justice Frank stated that the party must establish two things. First, he held that the offending party must give an acceptable explanation for the delay. Second, the non-compliant party must satisfy the court that the opposite party will not suffer non-compensable prejudice if the action is allowed to proceed.

19For the reasons given in Daci, Associate Justice Frank found it appropriate in the circumstances to exercise his discretion to dismiss the action under Rue 60.12. He reconciled the competing principles the cases talk about by holding that the court is reluctant to dismiss an action without adjudicating a claim on its merits but observed that the law recognizes how the courts require the enforcement of interlocutory orders to “ensure the administration of justice and to uphold the integrity of the civil justice system.”

20There are other cases such as Dale v. Corporation of the Township of Tiny, 2019 ONSC 4379 at paras. 28 and 29, and BRIM IPCO Inc. v. Horbatiuk, 2019 ONSC 878 at para. 23 where the courts have characterized this reconciliation of principles as a balance between a litigant’s right to have his or her dispute heard with the obligation of a party to comply with the Rules. In the words found at para. 22 of the respondents’ factum, “the right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court.”

21Finally, in Breslin v. Breslin, 2006 CanLII 50893 (Div. Ct.) at para. 9, Lane J. acknowledged that the dismissal of an action is a remedy of last resort, but one that is appropriate when the non-compliant litigant has shown a cavalier disregard for his or her obligations.

22The respondents submit that Graciela has not complied with the following terms of the Order made on September 13, 2024:

a. She failed to serve any and all further evidence by October 1, 2024. Instead, she served the new evidence on December 19;

b. She failed to serve her factum by October 22;

c. She failed to file an updated Confirmation of Motion Form by 2 p,m. on October 25. This fact is dispute by Graciela; and

d. She failed to pay the $1,000 in costs ordered by me within 30 days of September 13, 2024. Those costs were paid on January 1, 2025.

23Graciela has stated in her responding affidavit dated January 10, 2025 that she obtained the adjournment on September 13 to file the further supporting medical record concerning Haander and Teresa. She goes on to state that she subsequently communicated with other family members about supplementary materials to file, including affidavits.

24To explain the delay in gathering the further information on Haander and Teresa, Graciela disclosed in her affidavit that she had given an ongoing undertaking in a criminal proceeding that restricts her from communicating with Haander and Teresa. This has impeded her ability to gather information about their health as well as legal and financial matters related to her and to the respondent, Charles Cruz.

25Graciela describes how she promptly attempted to gather medical records and other information to support her Application without breaching the criminal undertaking. The medical records include the records of Dr. Portillo in Florida. She states that she has always had the intention to proceed with a capacity hearing, presumably of Haander and Teresa.

26The first term of the Order made on September 13 was to serve and file any and all further evidence by October 1, 2024. This was a scheduling order. A scheduling order is no different than any other kind of order: Dale v. Tiny Township. An order is an order, with terms that are mandatory for the parties to follow and that require the parties to comply with those terms. That said, the further evidence that Graciela was ordered to serve and file by October 1 was the new information described in the first paragraph of the endorsement. The detection of this information was the reason she requested an adjournment that day.

27Graciela has never brought a motion to vary the date by which to serve and file such further evidence based on the new information. She has never obtained an extension from the court at a case conference or with the consent of the respondents. The failure to serve and file that further evidence by October 1, 2024 put her in peril that the Application might proceed without that evidence in the record.

28I find that the further materials served by Graciela on December 19 and filed on December 20 were delivered out of time. She likely filed those materials in reaction to my endorsement dated December 13, 2024 containing a timetable for the respondents to file their material for this motion by December 20, 2024. By that date, Graciela’s further evidence was overdue by 2.5 months and the respondents had incurred the expense of bringing this motion.

29In my view, Graciela has not provided a satisfactory explanation for the failure to file further evidence by October 1, or for belatedly filing material without leave on December 20. Such leave has not been requested on this motion and is not granted now.

30There is no question that Graciela has, by her counsel, breached the Order of September 13, 2024. In my view, Graciela’s conduct is deserving of sanction by the court but does not rise to the level prescribed to warrant a dismissal of her Application. It is therefore appropriate to decide this motion in a manner that would allow the adjudication of the Application on its merits, barring non-compliance with further orders.

31I am inclined to make an order that is more in keeping with Rule 3.04(4) that allows me to make such other order as is just for the failure of a party to comply with a timetable. This approach is more in keeping with Rule 1.04(1), where it is mandated that the rules shall be liberally construed to secure the just and most expeditious determination of a civil proceeding on its merits.

32For these reasons and the principles set out in the authorities, I find that the service of any and all further evidence by Graciela on December 19, 2024 was an abuse of process. That further evidence is therefore struck as it is inadmissible to the extent it is based on new information. As that evidence is inadmissible, it shall be purged from the record.

33In view of this ruling, I further order that any reference to such further evidence in Graciela’s factum shall be struck for the same reasons.

34Graciela states in her affidavit at para. 11 that her counsel sent a confirmation form to the court on October 25, 2024, and that on no occasion did she refuse to proceed with the hearing of the Application. I find this evidence to be redundant as there was no hearing for the Application scheduled or confirmed for October 31.

35I do not find it necessary to make any finding regarding the late payment of the costs Graciela was ordered to pay.

Motion to dismiss for delay

36The Court of Appeal in Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 held in the context of an action that an order dismissing the action will be justified where the delay is inordinate, inexcusable, and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible. At para. 12, the Court held that the jurisdiction to dismiss an action for delay comes from either Rule 24.01 or the inherent jurisdiction of the court to prevent an abuse of its own process. At para. 14, the Court confirmed that an order a motions judge is asked to make to dismiss an action for delay is discretionary.

37Teresa has deposed in her affidavit that she and Haander are elderly and in poor health. The delay is causing them unnecessary stress and expense on top of the multiple health challenges they face. Teresa has also deposed that Graciela served the Application on Royal Bank (“RBC”) branch where they bank, and that RBC has frozen their bank accounts pending the determination of the Application.

38I do not find on the evidence filed that the respondents have demonstrated there has been an inordinate or inexcusable delay in proceeding with the hearing of the Application. It has only been four months since the Application would have been heard on October 31, 2024. In my view, that is not an inordinate amount of time to count towards delay. I am also not persuaded that the delay in the prosecution of this proceeding has been intentional or contumelious on Graciela’s part to conclude the delay is inexcusable.

39I do not find on the current record that the respondents have demonstrated that they have suffered prejudice caused by any delay. The respondents have put no evidence before the court that the delay has given rise to a substantial risk that a fair trial of the issues will not be possible. Teresa’s evidence relates instead to the situational difficulties the delay has caused to the health and finances of Haander and herself while this proceeding continues. While these effects are unfortunate, most litigants encounter a certain degree of stress from the litigation process. Insofar as any impediment to Haander and Teresa’s bank accounts is concerned, any decision the bank has made because of the litigation can addressed on a motion to seek directions from the court.

40The motion to dismiss for delay is also dismissed.

Conclusion

41The motion as framed is dismissed. However, I order that the new evidence served on December 19, 2024 be struck as it is inadmissible and shall be purged from the court record. Accordingly, that evidence shall also be removed from Case Centre. Any reference to the new evidence in the factum filed by Graciela is struck, without leave to amend.

42As Haander and Teresa’s bank accounts have been frozen because RBC was served with this Application, they may bring a motion on notice to Graciela and RBC for directions.

43The court cannot condone any breach of an Order, let alone breaches of a timetable the court has ordered. The adherence to dates of a timetable are essential to the efficient prosecution of a civil proceeding, and to the confidence of the public in the administration of justice. There is a cost that must be paid for the non-compliance of any party who does not meet their obligations under a timetable established for any part of the case.

44The court is mandated to fix the costs of a contested motion under Rule 57.03(1)(a). I am not prevented from awarding costs against the successful party in a proper case. In this respect, Graciela could be considered the successful party in that the Application was not dismissed on this motion: Fox v. Bourget (1987), 17 C.P.C. (2d) 94 (affirmed 9 W.D.C.P. 142 (Ont. H.C.). See also Del Giudice v. Thompson, 2020 ONSC 3623.

45I find that this motion would be a proper case to exercise my discretion under Rule 57.01(2) to award costs against Graciela, and to the respondents as the moving parties.

46In the alternative, the respondents were the successful parties in obtaining relief to sanction Graciela for her non-compliance with the Order made on September 13. They are entitled to their costs of the motion for this result. Either way, the question is the amount I should award to the respondents for those costs.

47Mr. Arora advised the court that Graciela would be seeking costs in the amount of $2,500 if she was successful, although he did not file a Costs Outline.

48Mr. Gray has filed a Costs Outline for the motion in which he seeks $12,246 for full indemnity costs (including disbursements and HST, $11,055 for substantial indemnity costs and $7,483 for costs at a partial indemnity level.

49The awarding of costs is within the discretion of the court. I am mindful of the principles to consider when exercising that discretion. Chief among is that the amount a court awards for costs must be fair and reasonable to the party who must pay them: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (Ont. C.A.).

50I have also considered the factors under Rule 57.01(1) when fixing the amount of costs. These factors include the complexity of the matter, the importance of the issues to the parties and the time expended on the matter at hand.

51I am awarding costs for this motion on a partial indemnity basis to the respondents Haander Mendoza, Teresa Mendoza, Charles Cruz and Maude Cruz jointly in the amount of $5,500, all inclusive. I consider this amount to be fair and reasonable under all the circumstances.

52The motion was scheduled at the Case Conference on December 13, 2024. Costs of the Case Conference were adjourned to the date of the motion. I award a further $500 for Mr. Gray’s appearance that day.

53This Application should now proceed to hearing on the current record. Any party may file a Triage Court Requisition to add the Application to a Triage Court list on a Tuesday morning to obtain a hearing date.

54I am of the view the parties would benefit from a pre-trial conference on a date to be assigned at the same time.