Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Arooj Aarooj, Plaintiff AND: Terra Greenhouse, Defendant
BEFORE: Associate Justice Glick
COUNSEL: Ognjen Miketic, for the Plaintiff Oliver Guillaume, for the Defendant
HEARD: May 14, 2026
Endorsement
OVERVIEW
1This is a motion by the Defendant to dismiss the Plaintiff’s action for failure to comply with the Order of Justice Yamashita dated July 15, 2025 or my Order of February 4, 2026. The Plaintiff has failed to answer all outstanding undertakings and refusals which were ordered to be answered. The Plaintiff has failed to pay the costs orders made against her. The Plaintiff admits that they are in breach of the two Orders but opposes the relief sought.
2For the reasons that follow, the Defendant’s motion is granted in part. As set out below, the Plaintiff’s action is stayed pending payment of the two costs orders. If payment is not made in sixty days, the action is dismissed.
BACKGROUND
3This action arises from an incident which took place on May 23, 2021. The Plaintiff alleges she tripped and fell on an empty wooden pallet or skid which was lying on the floor at the Defendant’s premises. The Plaintiff was there to buy plants and trees. The Plaintiff alleges she suffered serious personal injury as a result. The Defendant denies the claim.
4The action appears to have proceeded relatively smoothly for the first two years. The Statement of Claim was issued on January 23, 2023. The Statement of Defence was delivered on July 28, 2023. Examinations for discovery took place on October 21, 2023 and February 7, 2024. The Plaintiff set the action down for trial on September 10, 2024.
5The trouble which ultimately gives rise to this motion arises out of the Plaintiff’s discovery. The Plaintiff gave 70 undertakings and refused to answer 86 questions. Almost half of those undertakings and the majority of the refusals went unanswered until the Defendant brought a long motion to compel the answers.
6The Plaintiff’s long motion was heard on July 15, 2025 by Justice Yamashita. Before the motion was heard, the parties were able to resolve the motion on consent, save and except for the issue of costs. On consent, Justice Yamashita ordered the Plaintiff to answer 20 undertakings within sixty days and to provide answers to 41 refusals within sixty days. Justice Yamashita also ordered the Plaintiff to produce a sworn further and better Affidavit of Documents within sixty days, to re-attend to be examined for discovery on answers to undertakings and refusals and new productions, and to comply with Rule 53.03(2.2) within sixty days of the decision. Justice Yamashita also ordered costs in the amount of $5000 payable by the Plaintiff to the Defendant within 30 days.
7On February 4, 2026, I heard the Defendant’s motion to dismiss the action for breach of Justice Yamashita’s order. In the alternative, the Defendant asked that the action be removed from the trial list. As set out in my Endorsement of that same date, the Plaintiff did not file responding materials. Her counsel admitted that the Plaintiff had not complied with Justice Yamashita’s Order but took the position that the Plaintiff was actively attempting to satisfy the undertakings and refusals. There were eighteen undertakings outstanding and thirty six refusals outstanding. After hearing submissions I struck the matter from the trial list. I provided the Plaintiff one further opportunity to bring themselves into compliance with Justice Yamashita’s Order by giving them an additional 45 days to comply. I also ordered costs against the Plaintiff in the amount of $5203.65 payable within thirty days.
8The Defendant takes the position that the Plaintiff has not complied with my Order of February 4, 2026 and again moves for an Order dismissing the action. As of the date of this motion, the Defendant says there are now two undertakings that remain outstanding. There are also nine refusals that remain outstanding. The Plaintiff has also failed to pay to the Defendant the costs ordered either by me or by Justice Yamashita, or to provide a further sworn affidavit of documents.
9The Plaintiff states that there have been substantial efforts made to comply with the undertakings and to answer the refusals. She says the majority of undertakings and refusals have now been fully answered and satisfied. The only remaining undertakings are those given on a “best efforts” basis, where the requested information is not within her possession or control and must be sought from third parties. She says more time is required to provide and serve the further and better Affidavit of Documents.
LAW AND ANALYSIS
Preliminary Issue
10The materials on this motion were deficient. The Plaintiff’s affidavit, sworn by a Senior Legal Assistant at Plaintiff’s counsel’s firm, was replete with improper legal argument. Neither party filed a factum or case law. At the hearing of the motion counsel spoke to the legal test and to cases that were not before the court. As a result, I provided counsel with the opportunity to each provide three cases they wanted me to consider while making this decision. While the Consolidated Civil Practice Direction does not require factums to be filed on short motions, they are encouraged. I encourage counsel to give consideration to this going forward.
11The other preliminary issue is that after the hearing of the motion the Plaintiff attempted to file a supplemental affidavit in addition to the three cases. This was done unilaterally, without the consent of the Defendant and without any direction by the court. This was an obvious violation of Rule 1.09. The Defendant rightly objected and I did not review the supplementary affidavit. This is an issue that ought to be addressed in costs submissions by the parties.
Dismissing an Action – Rules 57.03(2) and 60.12
12Rule 60.12 states that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provide by the Rules, stay the party’s proceeding, dismiss the party’s proceeding or strike out the party’s defence or make such other order as is just. An Order under Rule 60.12 is discretionary (Rana v Unifund Assurance Company, 2016 ONSC 2502 at paragraph 37).
13I recently set out the law with respect to a failure to pay costs at paragraphs 14-15 of my decision in Rana v. Agnihotri, 2026 ONSC 1496. If a party fails to pay the costs of a motion, subrule 57.03(2) provides the court with discretion to dismiss or stay a party’s proceeding, strike out a party’s defence, or make such other order as is just. As stated by the Court of Appeal at paragraph 2 in Garrett v. Oldfield, 2016 ONCA 424, “in determining whether an action should be dismissed, a court must balance the completing interests of the parties and consider all relevant factors.”
14Relevant factors that a court may consider in exercising its discretion under subrule 57.03(2) and subrule 60.12 were set out by Associate Justice Robinson in Allen v. Kumar, 2022 ONSC 4223 at paragraph 11. These were originally articulated at paragraph 50 of Rana v. Agnihotri by Justice Dunphy. The relevant factors are:
a. The court must be alive to the possibility that non-compliance with court orders is indicative of its process being abused. Failing to act may deprive the moving party of justice according to law and risks rendering the court “a paper tiger”;
b. A litigant’s right of access to the courts must be accompanied by the responsibility to abide by the Rules and comply with court orders. Exempting impecunious parties from enforcing costs orders may amount to granting “carte blanche” to continue to ignore rules and orders and take unsupportable steps in the action without fear of consequences;
c. Where a party had the opportunity to make submissions about impecuniosity at the prior hearings leading to the costs order(s), subsequently seeking to relieve against payment of those costs constitutes a collateral attack on the prior orders;
d. The court may consider a pattern of unnecessary and unreasonable steps taken in the proceeding, including appealing numerous orders without chance of success or knowing the risk of an adverse costs order;
e. If court orders are cavalierly ignored and if a litigant continuously fails to comply with their obligations as a litigant and then fails to abide by the costs consequences of that behaviour, the court is justified in bringing some finality to the action;
f. Impecuniosity is not a shield for unreasonable conduct of litigation and a dismissal order may be made even if it resolves the matter on procedural rather than substantive grounds;
g. Self-represented litigants, while entitled to some accommodation and assistance to ensure a fair hearing, are not entitled to abuse the system or the party opposite. Failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system; an
h. At some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.
15Justice Osborne, as he was then, in Rimon v CBC Dragon Inc., 2023 ONSC 3701, aff’d 2024 ONCA 128, struck a defence and counterclaim for failure to answer undertakings in contravention of several court orders. That decision considers Rule 60.12 and also Rule 30.08(2). Justice Osborne cited Brown J.A.’s decision in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 where Brown J.A. at para. 48 spoke to the impact of a failure to meet a production obligation:
However, each time a party defaults on its disclosure and production obligations and requires the opposite party to seek the court’s assistance to remedy the default, two things happen. First, the cost of the litigation increases. Motions are not cheap; they add significantly to the overall costs of a civil case. Second, the final determination of the case on its merits gets pushed back, delayed by the need to bring a defaulting party into compliance with its disclosure obligations.
16Osborne J. at paragraph 40 also summarized the principles governing the exercise of a court’s discretion to strike out a pleading under rule 30.08(2) for breach of documentary disclosure and production obligations. These came from Falcon Lumber Limited and include:
a. the striking of a pleading is not restricted to “last resort” situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading;
b. a court should consider a number of common sense factors including: (i) whether the party’s failure was deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case;
c. although a court may consider the merits of the parties claim or defence, as it does under r. 60.12 dealing with the failure to comply with an interlocutory order [which is also relevant to the present case], this factor may play only a limited role where breaches of production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations; and
d. a court must consider whether an order to strike out a pleading would constitute a proportional remedy that is consistent with the recent calls of the Supreme Court of Canada to alter the Canadian litigation culture, and the court should consider the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute.
Undertakings and Refusals
17I find that the Plaintiff did not meet the timeline set out in my Endorsement to provide the answers to the undertakings and refusals. The Plaintiff only provided the answers after the Defendant brought this further motion. This is not ideal. That being said, as of the date of this motion there has been substantial compliance. Even as the Parties agree that there are outstanding undertakings and refusals, the Plaintiff has made the request to the relevant third parties for the information. The issue with the majority of the remaining undertakings and refusals relates to the number of times the Plaintiff has requested the information from the third parties. Both Parties agree that further requests must be made.
18The Plaintiff points to the amount of work required to fulfill the undertakings and to provide answers to the refusals as an explanation for the length of time it took. They also point to the fact that there have been issues with representation, which has caused some difficulty, and which were not the fault of the Plaintiff. They say that a dismissal would be a draconian remedy and not warranted in the circumstances.
19The Defendant argues that the Plaintiff has had their chance. They say that the failure to comply with my previous order warrants a dismissal. If the Plaintiff continues to get second and third chances, the court is telling the Plaintiff that there is no consequence for a failure to disobey a court order. There is no real assertion of any prejudice. Instead the Defendant relies primarily on the breach of the court orders as the basis for a dismissal.
20In the circumstances, I would not dismiss the Plaintiff’s claim on the basis of the status of the undertakings and refusals. This is a different case than that of Rimon v. CBC Dragon Inc. or the other two provided by Defendant’s counsel. In Rimon Osborne J. found that the defendants were in material breach of the Orders at the time of the motion. I have found, at least with respect to the undertakings and refusals, that significant progress has been made, including with respect to the outstanding answers. I also accept that the issue with compliance lies with Plaintiff’s counsel and not with the Plaintiff. Among other issues, the Plaintiff’s previous counsel was suspended for a period of time, necessitating new counsel. There has been flux in the firm following that suspension. I do not think that dismissing the claim would be proportional.
Failure to Pay Costs
21I reach a different conclusion with respect to the Plaintiff’s failure to pay costs. The Defendant is moving for an Order to dismiss the action on the basis of non-payment of costs. Knowing that, the Plaintiff did not pay costs or offer any real explanation as to why they had not been paid. The costs Order of Justice Yamashita required the Plaintiff to pay costs within thirty days. Those costs have now been outstanding since August 2025 – 9 months at the time of the hearing of this motion. My Order required payment of costs within thirty days and at the time of the motion was also outstanding, albeit for less time.
22The issue was not addressed in the affidavit filed by the Plaintiff on the motion. That affidavit was from a senior legal assistant in Plaintiff’s counsel’s firm. There is no claim of impecuniosity. The only explanation offered by Plaintiff’s counsel in oral argument was that the failure to pay costs rested with counsel. There is no evidence in the record to support this assertion even by implication. Unlike with respect to the undertakings where a change in counsel reasonably affects the work being done to fulfill the undertakings, I do not understand how changes in counsel affected the payment of costs. But even if an issue with counsel did affect payment of costs with respect to the period following Justice Yamashita’s Order leading up to my February endorsement, this does not adequately explain the failure to pay costs now. The same counsel appeared in February as appeared in May. Even as counsel’s firm is in flux, there ought to have been some attempt to address this issue. There was however no attempt, and no plan offered to address it going forward.
23The failure by the Plaintiff to respond substantively to the issue of unpaid costs or to offer to cure the default requires the Court to take action to enforce compliance. Otherwise the court becomes a “paper tiger”. As I stated at paragraph 24 of Rana, courts, balancing the interests at play, often give a party one last chance to pay costs and regularize their position before moving to dismissal. This was the approach of Justice Dunphy in Rana v. Unifund Assurance Company, 2016 ONSC 2502, Justice Myers in Baradaran v. Tarion Corporation, 2014 ONSC 6870, and more recently, the approach taken by Associate Justice Frank in Dunning v. Colliers Macaulay Nicolls Inc., 2025 ONSC 3561.
24I find that this is similarly the appropriate order in this case. I therefore make an Order staying the Plaintiff’s action pending the payment of the costs ordered by me and by Justice Yamashita in the total amount of $10,203. The Plaintiff has sixty days from today’s date to pay those costs, failing which this action is dismissed. I find that this Order strikes an appropriate balance between the competing interests at play. If Plaintiff’s counsel is responsible for the failure to pay costs, Plaintiff’s counsel now has an opportunity to correct this issue pending dismissal.
ORDER
25As above, the action is stayed pending the payment by the Plaintiff to the Defendant the amount of $10,203 which represented the total amount of costs ordered by me and Justice Yamashita in our respective orders.
26If the Plaintiff does not pay the two costs awards in full within sixty days, the Plaintiff’s proceeding shall be dismissed. The Defendant shall be entitled to move in writing for an order dismissing the action upon filing an affidavit certifying the non-payment of the foregoing amounts ordered to be paid. The Defendant must serve that motion on the Plaintiff.
27If the Plaintiff does pay the costs, the parties are directed to schedule a case conference to timetable the next steps in the proceeding.
Costs of This Motion
28I encourage the parties to settle the costs of this motion. If they cannot do so, costs submissions can be made in writing through the administration office. Submissions are to be limited to three pages. The Defendant is to serve their submissions within seven days of this decision. The Plaintiff is to serve their submissions seven days later. There will be no reply.
Associate Justice Glick
Date: June 4, 2026
CITATION: Aarooj v. Terra Greenhouse, 2026 ONSC 3317
COURT FILE NO.: CV-23-207-0000
DATE: 2026-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Aarooj Aarooj, Plaintiff
AND:
Terra Greenhouse, Defendant
ENDORSEMENT
Glick AJ.
Released: June 4, 2026