VIEWS@ 11248
BLOG NOTE: After spending some time trying to drag/drop/cut/paste/the original PDF format, I typed the whole document... I have made a brief statement at the end.
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Feb.20, 2015.
"For written reasons released today the appeal is dismissed
"For written reasons released today the appeal is dismissed
(signed) Hackland J."
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COURT FILE NO; DC- 13-1971
DATE: 2015/02/20
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: EVERT JAN STEEN, Appellant/ Plaintiff
AND
3902641 CANADA INC. (N-VisionIT Interactive) - Respondent / Defendant
BEFORE: Hackland J.
COUNSEL: T. Kirk Boyd, for the Appellant/ Plaintiff
Monick L. Grenier, for the Respondent / Defendant
HEARD: January 20, 2015 (Ottawa)
ENDORSEMENT
[1] The appellant appeals the final order of Master MacLeod following a motion heard
September 20, 2013 in which the respondent successfully sought an order dismissing the action because of the appellants repeated failure to comply with orders requiring him to answer undertakings, particularly the order of Master Roger dated May 8, 2013.
[2] The appellant submits that Master MacLeod erred intaking the extreme step of dismissing the appellant's action without first giving him a last chance to comply with the outstanding court order to answer undertakings. It is submitted that a clear last chance order was particularly important because a dismissal order is a discretionary remedy of last resort and because the appellant was self-represented and unsure of his legal rights.
[3] The case law establishes that a court should not interfere with the final order od a Master unless it is clearly wrong or reflects a "palpable or overriding error" (see: Peters v. Prince, 2007 CanLll 46171 (Not.S.C.): Bank of Nova Scotia v. Liberty Mutual Insurance Co., 2003 CanLii 35171 (Not. S.C.D.C.)
Page: 2
[4] On December 6, 2012, the respondent brought a motion seeking an Order dismissing the appellant's action on the grounds that he failed to answer discovery questions put to the Plaintiff in writing and for failing to answer outstanding undertakings in accordance with the Rules of Civil Procedure and prior endorsements of the court.
The
respondent’s December 6, 2012 motion was heard before Master Roger who reviewed
outdstanding answers and undertakings and found that twent-seven (27) questions
and undertakings were outstanding and required more complete answers. In a
comprehensive Order dated December 7, 2012, Master Roger orderederd the
appellant to answer a specific list of questions and undertakings by February
15, 2013.
[5] Master Roger declined to dismiss the
appellants action, explaining:
"Considering:
that the previous orders were made at case conferences without assessing the
sufficiency of the answers; that the previous orders were not specific but
rather a general request to both parties to ensure that their answers were
complete; that the parties are self-represented; that some efforts have been
made by the Plaintiff to provide some answers; that most of the outstanding
questions are follow-up questions arising from previous answers ( there have
been a number of follow-up questions) and considering generally the concept of
proportionality, what is just in the circumstances is not to dismiss the action
for failing to comply with previous orders and for not fully answering
questions but rather to order that outstanding questions, as they are outlined
below, be answered by February 15, 2013."
[6] Master Roger did caution that, “the
Plaintiff is, however, on notice that he must comply with this Order in timely
manner as this court might exercise its discretion differently should a similar
motion return.”
[7] A further case conference was scheduled
for May 8, 2013 before Master Roger in order to secure a date for a long motion.
The respondent intended to seek an order dismissing the action on the grounds
that the appellant had failed to comply with earlier earlier court orders with
respect to outstanding undertakings and discovery questions. However, counsel
for the appellant and the respondent reached an agreement pursuant to which
Master Roger made an Order requiring the appellant to answer all outstanding
discovery questions and undertakings on or before June 15, 2013. Master Roger’s
order dated May 8, 2013 included a “last chance” warning:
[9] The appellant discharged his counsel in
early June 2013 and resumed representing himself.
[10] On
June 19. 2013, following the expiry of Master Roger’s June 15, 2013 deadline,
respondent’s counsel sent an email to the appellant to advise that the
respondent would be bringing a motion for an Order dismissing his action pursuant
to Master Roger’s May 8, 2013 Order. The appellant did not file any materials
in opposition to the respondent’s motion or in support of his cross motion
which was, in essence, a request that the court “re-assess” Master Roger’s
Order of May 8, 2013, which had not been appealed.
[11] Master MacLeaod heard the respondent’s
motion on September 20, 2013. At the hearing, the appellant confirmed that he
understood Master Roger’s previous order requiring him to answer discovery
questions and undertakings. He argued before the Master that he was wrongfully
being required to answer questions that he considered to be irrelevant and he
sought to re-argue Master Roger’s order. Master Macleod clearly explained that
he had no jurisdiction to re-consider Master Roger’s order, which had not been
appealed.
[12] A review of the motion transcript
discloses that Master MacLeod advised the appellant that he could consider
allowing him an additional period of time to answer the questions and
undertakings in response to which the appellant stated that he would not
provide further answers unless the Court would guarantee that he would not have
to answer any further questions.
[13] Master Macleod issued comprehensive
reasons for his decision dismissing the Plaintiff’s action, concluding as
follows:
"Mr. Steen made it abundantly clear
during the motion that he has made no attempt to answer the remaining
undertakings because he does not agree he should have to. He states that they
are not relevant ans are too much work.
When I asked him if he would comply with the order if I gave him a
further 30 days. He advised me
Page: 4
if the court could guarantee he would not then be asked more
questions.
Under the
circumstances I have no option but to conclude that the failure to answer the
undertakings constitutes willful and intentional disregard of a court order. As
stated by Ferrier J. in 1066087 Ontario
Inc. v. Church of the First Bon Apostolic Inc. et al. cited by the counsel
for the defendant, where the plaintiff has shown utter disregard for the orders
of the court, it is unfair to require the defendant to continue to incur costs
defending the action. A similar conclusion was reached by the Divisional Court
in Vacca v.Banks (2005 6 C.P.C.22. In
any event, Master Roger has already ordered that the action be dismissed if
there was failure to comply and that order was not appealed.
Accordingly
the action of the plaintiff is dismissed with costs of the motion. The costs
are fixed at $2,800.00 on a partial indemnity scale."
[14] In my opinion, the order of Master
Roger of May 8, 2013, made it abundantly clear that he was providing the
appellant with a last chance to comply with the orders of the court to answer
undertakings. This order was made pursuant to a consent disposition negotiated
by the appellant’s own counsel. Still, the appellant refused to comply with
that order.
[15] When the motion to dismiss the action
was brought on before Master MacLeod, the appellant sought to re-argue the
refusals motion that had previously been decided by Master Roger. Following a
careful and patient explanation of the issue and the consequences of the
motion, Master MacLeod sought an assurance from the appellant that if he granted
a further 30 day extension to answer the questions and undertakings, his order
would be complied with. In response, the appellant demanded assurances from the
court that he would not be asked to answer any further questions. In these
circumstances, I am unable to appreciate how the Master could reasonably have
been expected to extend any further indulgences to the appellant.
[16] In Vacca
v. Banks, 2005 CanLll 1054 (ON SCDC), Mr. Justice Ferrier of the Divisional
Court made the following observations when he affirmed a Decision of Master
Birnbaum dismissing a Plaintiff’s action for non-compliance with court orders
in very similar circumstances:
“Repeated delays and failures to comply
with procedural orders affect not
only the parties to the action. They significantly increase the cost of the
administration of justice due to the impact on administrative and judicial
resources. Repeated breaches of orders must attract significant sanctions
otherwise the Case Management Rules will become ineffectual and the ultimate
goal of the rules will be unattainable.
Page: 5
The rules
must not be rendered nugatory by failure to impose appropriate sanctions in
case of breach of orders.
Rules
30.08(2)(b), 60.12 and 77.10(7), specifically provide for the dismissal of a
plaintiff’s action in such circumstances.
Furthermore.
Although the Master found prejudice to the defendants, in my view it was
unnecessary to make such finding as a factor supporting a dismissal of the
action.
There comes a
time when this court is obliged to meet its responsibility for the effective
administration of justice through case management by dismissing an action. Such
is the case when the plaintiff repeatedly fails to comply with orders of the
court whether or not there is prejudice to the defendants.
In the
circumstances of four breached order, including the “last chance” order, the
Master realistically had only two options – one was to give the plaintiffs yet
another chance – the other was to dismiss the action.
Not only am I
unable to find error in the exercise of discretion by the Master, I am of the
view that her decision was correct.”
[17] In conclusion, I am not persuaded that
the Master was clearly wrong in ordering the dismissal of this action and
indeed I think he was correct. I find
that the appellant was well aware that he had been provided with a last chance
to comply with Master Roger’s order to answer undertakings and even when
queried by Master MacLeod as to his willingness to comply if granted a further
extension, the appellant sought to bargain with the court to impose
inappropriate conditions. The appeal
herein is dismissed.
[18] I would note that the respondents have a
counterclaim in this action. They have
advised the court that they will agree to dismiss the counterclaim without
costs upon dismissal of the main action.
_________________(signed)______
Mr. Justice Charles T. Hackland
Date:
February 20, 2015
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
NOTE: The above mistaken switch of Counsels is the Court's.
"In the circumstances," or "under the circumstances," the Judge could do little else;
"In the circumstances," or "under the circumstances," the Judge could do little else;
his hands were tied by Case Law.
The fact it took a month to receive his negative endorsement is likely due to the excessive, general work-load. His preceding adjectives of 'tough,' and 'high-profile,' appears to have mattered little. All was predictable in the end.
These years, Case Law pretty well stipulates most all outcome. Once precedents are allowed, they become 'standard,' and hence - law. There is little 'argument' left. Do as you are told; that's it. If they want you out, they'll find a way to verbalize and achieve it.
As a questioning SRL, that is what I have learned from this experience. The above summation's ease of manipulative rhetoric is scarily perturbing. No one ever dealt with the relevant facts of the case; just as the Respondents ployed it.
A respected lawyer previously informed me: "Jan, the courts are not about Justice."
It's a game.
Yip, our Police State is alive and thriving!
I will soon write my rebuttal.
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case law
noun
- the law as established by the outcome of former cases.------------------------------------------------------------------------------------------------------------------------------
pro·to·col
ˈprōdəˌkôl,ˈprōdəˌkäl/
noun
- 1.the official procedure or system of rules governing affairs of state or diplomatic occasions.
- the accepted or established code of procedure or behavior in any group, organization, or situation.
- 2.the original draft of a diplomatic document, especially of the terms of a treaty agreed to in conference and signed by the parties.
synonyms: agreement, treaty, entente, concordat, convention, deal, pact, contract,compact;
formalconcord"the two countries signed a protocol"---------------------------------------------------------------------------------------sta·tus quoˌstādəs ˈkwō/noun- the existing state of affairs, especially regarding social or political issues."they have a vested interest in maintaining the status quo"
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