http://canlii.ca/t/gf4ns

[8]         In March 2009 the Chrisjohn family fired Nobili. Several months later they retained the Defendant Murray, a member of the Lerners firm. On August 11, 2010 Murray issued a solicitor’s negligence claim against Nobili on Chrisjohn’s behalf.

TORONTO – A Kingston lawyer became the first in Ontario to have his licence revoked for sexually harassing clients, the Toronto Sun has learned.

Farant, who specializes in personal injury and disability cases, exploited an illiterate, vulnerable male client nine years ago and took $56,000 from the man, who had suffered brain damage from a car accident.

http://www.torontosun.com/2014/10/29/lawyer-first-in-ontario-to-be-disbarred-over-sexual-harassment

https://www5.fsco.gov.on.ca/AD/4224

I find that, had State Farm put its mind to the June 7, 2013 offer to settle, all of the expenses related to preparation, preparation of a factum regarding admissibility of documents and expenses incurred thereafter could have been avoided.

State Farm is entitled to its litigation strategy.  With it come the associated risks when a strategy stops working. In this case, I find that State Farm’s aggressive strategy backfired, costing both it and Ms. Kimmerly additional preparation time.

For this reason, I find that the expenses between the June 7 offer date and the hearing start date, should be awarded in full. 

Ms. Kimmerly’s submission that State Farm gave no indication before the hearing that it was open to settlement and did not respond to the June 7 offer was undisputed and the Minutes of Settlement executed by the parties on June 17, 2013 mirror the June 7 offer.  I find that all the work that followed the June 7 offer was for naught, and entirely preventable had State Farm given meaningful consideration to the offer closer to the time it was made.

http://canlii.ca/t/g7zm0

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.

http://canlii.ca/t/g7ffz

[23]         The action arises from a motor vehicle accident that occurred on December 5, 2008.  The statement of claim, however, was not issued until December 7, 2010 – two days after the expiry of the applicable limitation period.

[28]         In light of that report, one would have expected the plaintiff to have provided some detail to support the discoverability plea and why, despite these reported symptoms, she did not believe she had the ability to meet threshold within the limitation period.

[29]         In terms of the odd timing for the issuance of the claim, the only explanation for it is found at paragraph 12 of Mr. Dran`s first supporting affidavit, where he states:

In order to protect the above noted limitation (sic), the statement of claim was issued on    December 7, 2010.

[30]         This assertion appears to conflicts with what the pleading states about discoverability.  The two-year limitation period had already expired – 2 days earlier.  If, as pleaded, the plaintiff formed the view on December 7, 2009, that her injuries now met threshold, then why would Mr. Dran believe that prior counsel issued to protect a limitation period that had already expired?   This evidence is incompatible with the pleading.

Efforts made by current counsel to locate and serve the defendant

[42]         Plaintiff’s current counsel assumed carriage of this file on July 11, 2012.  It does not appear, however, that a file review was conducted at that time.  Had the file been reviewed, Salmon’s failure to defend would have been noted and that would have led to the discovery that he had never been served.  Presumably that would have left to a motion to extend the time for service at that time, and efforts to locate him would have been initiated.  There is no explanation in the materials to explain why none of this transpired at that time.

[43]         The only explanation as to why nothing occurred when carriage of the file was assumed is contained in the supporting affidavit of Kiren Dran, who indicates that he is counsel at the firm with carriage of the file.  He says nothing, however, about his own involvement with this matter.  All he states is as follows:

I am advised and verily believe that due to inadvertence, the law clerk tasked with the plaintiff’s file did not alert the lawyer with carriage of the file of the failed attempt to serve the defendant Jason Salmon, and did not perform the updated searches on the defendant. As a result, the failed attempt was not brought to the attention of the lawyer with carriage of the matter.

[44]         This short passage raises the following questions:

–         By whom was Dran advised:

[72]         Although this motion was first booked back in January 2013 and though it was not confirmed the first time it was up and then adjourned the second time at the plaintiff’s request, there is still no affidavit from the plaintiff attesting to the fact that it was always her intention to proceed with this action.

[73]         The only evidence on point in contained in the affidavit of Simon Mariani, an articling student at the firm currently representing the plaintiff that was only delivered in late January 2014.  He states:

The plaintiff has continued to meet with our office and express her continued interest to proceed with this litigation

[74]         At this point, it is not even clear if the plaintiff was made aware that her rights were in jeopardy.  There is no evidence to the effect that anyone ever raised this with her.

[90]         The facts of this case are quite different from those in Chiarelli, supra. In Chiarelli, the court found that there were steps the defence ought reasonably to have taken to protect themselves from prejudice.  This was based on their having received not only notice, but 12 medical reports, so they were aware the injuries were serious.  They were therefore in a position to assess the potential magnitude of the claim and consider the value of taking steps to protect themselves early on.

[91]         In this case, it is not even clear that notice was even sent to the defendant or his insurer, let alone received be either.  The defendant had already moved from the address to which notice appears to have been sent while the insurer has no record of having received it.

[92]         Even if the notice letter had been sent and received, absent any medical information as to the nature and extent of the injuries suffered, how can the defendant be faulted for not having initiated surveillance and why would the defendant have expected the defence to seek a defence medical assessment?  With whom?  No area of injury had been identified to allow the defendant to identify what kind of specialist they should retain to assess the plaintiff.

[93]         As in Noori, I conclude that the defence would have suffered irreparable prejudice if validation of service had been permitted at this late date.   They have lost the opportunity to conduct timely surveillance and a vocational assessment.  They have also lost the opportunity to isolate the injuries suffered in this accident as distinct from those suffered in the plaintiff’s fall in May 2013 by way of defence medical examinations.

[94]         It is not reasonable to have expected them to have undertaken any of these steps in the absence of any information at all about the plaintiffs’ alleged injuries or losses.  Although plaintiff’s counsel was seeking and amassing these reports, they simply sat in their own file and none of these materials were forwarded to the defendant to allow them to assess the value of the claim or the work they should undertake to address it.

[95]         At best, the defence received notice and then heard nothing between November 2009 and March 2013.   In view of the two year limitation period and the 6 month period within which to serve the claim, they had no reason to do anything in the absence of service of the claim by June 2011.

[96]         Notice letters are usually sent before a plaintiff is in a position to assess if they can meet the legislative threshold, as the plaintiff alludes in her own pleading.  It is therefore not unusual for insurers to receive a notice that is never followed by an issued statement of claim.

[97]         In this case, it is not even clear if notice of the claim was received, or even sent.  There is no evidence form counsel with carriage at the relevant time addressing the issue.   As a result, the plaintiff’s position regarding prejudice is totally unfounded.

[98]         I am also mindful that a considerable period has now passed since this loss occurred and the parties have not yet gone to examinations for discovery.  Trying to reconstruct the events that led to the accident so long after the fact will be difficult.  When one is looking at a time frame of 6 years, concern about fading memoires is legitimate when liability remains in issue and those memories will have to be relied on.

[99]         For all of the above reasons, I conclude that the motion must be dismissed if I am to do justice between the parties.