ANALYSIS
[34] In my view, the motion should be dismissed.
[35] Justice Murray’s order was provided to plaintiff’s counsel three days after it was obtained. There is no explanation why plaintiff’s counsel did not review it until sometime in September 2012. There is no satisfactory explanation as to why the motion was not brought until December 2012. While I might not dismiss this motion on this ground alone, the motion was not brought forthwith as required by the rule 37.14(1).
[36] While the motion to dismiss was brought without notice as allowed by Wein J., it must be kept in mind that this was not entirely without notice to plaintiff’s counsel. He was in attendance when Justice Wein’s order was made. This situation must not be confused with a motion such as an interim injunction brought and heard before the defendant is even aware that an action has been commenced. The plaintiff knew exactly what should be done and by when to avoid the motion.
[37] In his affidavit and factum, the plaintiff submits that:
“[G]iven [plaintiff counsel’s] ongoing best efforts to provide and request outstanding undertakings, [plaintiff’s counsel] did not anticipate that the Defendants would pursue this matter so aggressively and demand strict compliance. Most importantly, [plaintiff’s counsel] did not anticipate that [defendants’ counsel] would bring an ex-parte motion to strike the plaintiff’s claim so soon following Justice Wein’s order. Had [plaintiff’s counsel] some notification of [defendant’s counsel]’s intention to proceed with a Motion to strike the Plaintiff’s claim, he would have undertaken all possible efforts to pay the costs award (which he believed would not be enforced) and deal with the outstanding undertakings on an urgent basis.”
[38] I do not accept this submission. The defendants had been prodding the plaintiff with correspondence before the motions were brought. Two motions had been successfully argued and substantial costs were ordered. Despite the defendants’ clear intention and the court’s clear orders, there is no reason why the plaintiff would not have undertaken all possible efforts to pay the costs and deal with the outstanding undertakings on an urgent basis. This is not a reasonable explanation for inadvertent error or technical non-compliance with the rules or orders.
[39] I do not accept that the motion should be granted because no prejudice was shown. Given the failure to provide a reasonable explanation, prejudice is less of a factor. Even so, I am satisfied that there was some prejudice to the defendants for the following reasons.
[40] The plaintiff’s admitted list of outstanding undertakings included the requests that he provide:
(1) whether he intended to obtain any expert opinions;
(2) the plaintiff’s business registration and confirm when the plaintiff started his business; and
(3) whether the results of the accident benefits testing was a proper assessment of the plaintiff’s ability to move.
[41] There were also rather simple undertakings such as to advise whether the plaintiff experienced any pain in his lower back while working in construction or at all prior to the accident and to advise if the plaintiff was aware of a significant economic downturn in 2008.
[42] The first three are significant undertakings to allow the defendants to properly respond to the claim. A failure to deal with expert evidence until almost five years after the accident will likely significantly delay the proceedings. The latter two undertakings would provide the defendants with necessary background information to accurately assess the claim. They also suggest an inattention to the file by the plaintiff himself.
[43] There is no responding affidavit from the plaintiff but his counsel sets out a number of letters sent to his client to respond to the undertakings even as late as May 2012. A lawyer’s errors should not be visited upon the client; however, it appears that Mr. Zuk was involved in this failure to provide undertakings in a timely fashion, even after an order to do so. In any event, Mr. Zuk may have his own remedy against his lawyer if he is blameless.
[44] There is nothing in the material filed by the plaintiff that would suggest that he would have been any more successful in front of Murray J. with the material that he now puts before this court. The undertakings were not completed; the costs were blithely ignored. Counsel had already been provided with two opportunities to extend the time for compliance and he failed to meet them. Indeed, using his own words, he could and should “have undertaken all possible efforts to pay the costs award and deal with the outstanding undertakings on an urgent basis.” Given those circumstances, the difference in the number of outstanding undertakings is not material.
[45] Before dismissing an action or striking pleadings, the court should consider other alternate or less extreme remedies. Faced with this particular lawyer’s response to the outstanding orders, I can think of no other remedy. There is no suggestion that the failure to comply was inadvertent; plaintiff’s counsel is simply saying that he could have complied if he chose to but did not. On this record, any other order would not address the interests of the defendants in moving this matter forward and encouraging compliance with orders.
[46] On a regular basis in the courts across Ontario, motions are filed to require counsel to live up to their undertakings. Time after time, they are resolved on the morning of the motion by a consent to extend the time for compliance with or without costs. Invariably the motion records are thick and correspondingly expensive. If counsel would simply comply with their undertakings as and when they are given, those motions would not be necessary and that time and money would not be wasted. While I hope that I see a distorted picture based only on the cases that come before me, there appears to be a culture in civil litigation that undertakings will be given at examinations but only complied with when pressed by the other side with letters, motions that are threatened or motions that are brought. That culture should come to an end; it should not be encouraged by granting orders such as requested in this case.