It doesn't take a fool to see why the courts are clogged. They are clogged because there's a plethora of professionals who need to be fed. Most all have families and cars, and cottages, and mortgages; most have condos down south; some even collect antique cars. Go figure!
If it takes 6 years to deal with a basic claim based on a non-compliant contract, only to end up faulting the claimant for non-compliance of not answering the most asinine discovery questions, after some 3 years of dilly-dallying, there's GOT to be a major virus running rampant in the system.
Below then my interspersed response to Justice Hackland's dismissal. In the process, I will assess choice, and combination of words. After all, we are speaking a language, English in this case, and
'we' are communicating 'meaning.' Justice Hackland creates his reasons (ENDORSEMENT :) for his ultimate dismissal, by building his 'argument' to do so. His meanings are inherent (hidden?) in his carefully constructed rhetoric.
Understand, in order to respond and clarify my take on the matter, I have asterisked and underlined, or emboldened, words or phrases. Actual dismissal = Post 164. Buckle down; this will be arduous.
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February 20, 2015
Superior Court (Ottawa Divisional)
Per Justice C. Hackland
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.
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* Defendant's first motion requesting a dismissal was heard September 13, 2011. It was based on:
RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
WHERE AVAILABLE....(:)>
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
(I was dismissed by a Master: guess case law has now given them same rights as a Judge)
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).
(a) under clause (1) (a), except with leave of a judge or on consent of the parties;
(b) under clause (1) (b). R.R.O. 1990, Reg. 194, r. 21.01 (2).
To Defendant
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
(erroneously ordered by the BC Judge; the 'OR' clearly stated I was entitled: She erred; I even have a high-profile case-law.
Additionally, (I was in Small Claims Court at the time, thinking a quick $25,000 might give our revamped site a chance on the market) irony is that the Default Rule in Small Claims Court in Ontario states:
Additionally, (I was in Small Claims Court at the time, thinking a quick $25,000 might give our revamped site a chance on the market) irony is that the Default Rule in Small Claims Court in Ontario states:
RULE 6 FORUM AND JURISDICTION
Place of Commencement and Trial
6.01 (1) An action shall be commenced,
(a) in the territorial division,
(i) in which the cause of action arose, or
(ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business; or
(b) at the court’s place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business. O. Reg. 78/06, s. 8 (1).
(As stated a number of times before, an Ontario Judge, using the Default Rule, could have more legitimately dismissed the case, based on "Lack of Jurisdiction)
(2) An action shall be tried in the place where it is commenced, but if the court is satisfied that the balance of convenience substantially favours holding the trial at another place than those described in subrule (1), the court may order that the action be tried at that other place. O. Reg. 78/06, s. 8 (1).
(Again these Rules allow for 'arguments;' best connects win)
(3) If, when an action is called for trial or settlement conference, the judge finds that the place where the action was commenced is not the proper place of trial, the court may order that the action be tried in any other place where it could have been commenced under this rule. O. Reg. 78/06, s. 8 (1).
6.02 A cause of action shall not be divided into two or more actions for the purpose of bringing it within the court’s jurisdiction. O. Reg. 258/98, r. 6.02.
(Need THIS one explained to me)
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;
(FASCINATING! This one may have been part of riling me in to madness, making me explode to show I was a derelict or insane)
Another Proceeding Pending
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
(Here's the big one they used)
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.
(Note the word: 'JUDGE' > NOT MASTER!)
Huge irony here, in that we turned down their $30,000 out of Court settlement. 'Frivolous' case indeed!
MOTION TO BE MADE PROMPTLY
21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs. R.R.O. 1990, Reg. 194, r. 21.02.
FACTUMS REQUIRED
21.03 (1) On a motion under rule 21.01, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 15.
("Stating the facts." How in HELL do we know they are facts, unless they are decided so in a court, by a Judge?)
(2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s. 5.
(3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394/09, s. 5.
[2] "The appellant submits that Master MacLeod erred in taking 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." *
SEE POST NO. 151 Transcript of Sept.20, 2013, session with Master MacLeod.
Scrutiny will indicate I questioned this Master (very conveniently not Roger; i.e. allowances for 'lack of Jurisdiction' etc. If it had been Roger, I would have been able to point at his discrepancies of 1) Conflict of Interest (His former Partnership with BLG > "It begins with service" > the Company Defense Counsel was working for); 2) Not understanding websites, the fact it was the CONTRACT I was there to claim non-compliance with; 3) The serious allowable confusion with running the counter-claim neck'n neck. 4) NEVER my allowances to question the never-ending, most IR-relevant questions! I.e it had been decided to do me in from the outset!
"the appellant was self-represented and unsure of his legal rights." *
Scrutiny will indicate I questioned this Master (very conveniently not Roger; i.e. allowances for 'lack of Jurisdiction' etc. If it had been Roger, I would have been able to point at his discrepancies of 1) Conflict of Interest (His former Partnership with BLG > "It begins with service" > the Company Defense Counsel was working for); 2) Not understanding websites, the fact it was the CONTRACT I was there to claim non-compliance with; 3) The serious allowable confusion with running the counter-claim neck'n neck. 4) NEVER my allowances to question the never-ending, most IR-relevant questions! I.e it had been decided to do me in from the outset!
"the appellant was self-represented and unsure of his legal rights." *
- The Appellant had carefully studied the Rules, and was fully aware of his rights as a self-representing litigant! He was merely naive and unaware the system was in fact a grandiose game!
A Game of Words.
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A Game of Words.
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[3] The case law establishes* that a court should not interfere with the final order of 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.)
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* SEE POST 142: Lawyers and Judges in Collusion
* "palpable or overriding error" * - > the case had deteriorated to the point the Plaintiff had been sufficiently cornered, and with a collusive Counsel played out the last telephoned, May 08, 2013, 'CONFERENCE.'
Plaintiff's February 17, 2013, Delivered Undertakings were NEVER court assessed, and by then, with a Counsel who had jumped ship, the Plaintiff had had about enough! His Cross Motion was NEVER taken seriously.
Their game of thrones won the day > to date!
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Plaintiff's February 17, 2013, Delivered Undertakings were NEVER court assessed, and by then, with a Counsel who had jumped ship, the Plaintiff had had about enough! His Cross Motion was NEVER taken seriously.
Their game of thrones won the day > to date!
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THIS IS IT 4 TODAY!
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[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
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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.
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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
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