Ontario’s Superior Court of Justice has adjourned a motion from State Farm Mutual Automobile Insurance Company to dismiss an auto insurance claim arising out of a car accident that happened 13 years ago.
“The power to dismiss an action for delay should not be exercised without giving the plaintiff an opportunity to remedy their default,” the Ontario Superior Court ruled on June 20, 2022.
“The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.”
the claimant arguing that her back injury prevented her from attending examination for discovery in person (and the insurer’s insistence that a written examination for discovery was not sufficient)
multiple changes of court case managers
health crises of the mother and wife of the claimant’s lawyer
the claimant’s lawyer was removed from the case in a heated battle, because the claimant’s father, also a lawyer, railed against how her counsel was handling the matter, and
COVID-19 court closures.
The claimant in the case, Daniella Hordo, 36, was involved in a motor vehicle collision on Mar. 30, 2009. She commenced an action against her insurer, State Farm (since acquired by Desjardins in 2017), in Dec. 15, 2014, more than five years after the accident.
“Seven and a half years later, the action is still at a relatively early stage in that examinations for discovery have not been held,” as Ontario’s Superior Court of Justice noted in its June 2022 ruling – a decision that gave Hordo “a last chance” to comply with an order to attend examination for discovery.
The court’s decision is extensive and covers a huge amount of material, including voluminous samples of notes passing between the counsel of both parties throughout the lengthy proceedings. In one instance, the court noted, Hordo’s father produced a 675-page document arguing why the matter should be stayed until proceedings had been completed against her daughter’s lawyer.
The bulk of the delays had to do with Hordo’s insistence that she could not sit for the insurer’s legally-required examinations for discovery because of her back. The only medical evidence she entered to support her position was a doctor’s note from four years ago, which states in its entirety:
“I had been a treating physician for Ms. Hordo since 2010. I recently assessed Ms. Hordo. Given her persistent symptoms along the low back, I do believe that she would not be able to sit through Discovery. The extensive sitting that would be required would be a hardship for Ms. Hordo. It would be beneficial if she can provide her testimony in writing.”
The court found the detail in the letter was insufficient. State Farm maintained that Hordo be made accessible to their counsel in person for the discovery.
Meanwhile, a plethora of events caused the case to drag on for eight years.
In the first place, Hordo’s counsel had to deal with the personal health matters of both his mother and his wife, which delayed proceedings.
Hordo’s father clearly had issues with the way counsel was handling the file and demanded that the court dismiss him. In doing so, he kept sending unprofessional messages to the court about his daughter’s counsel, which ultimately drew a cease-and-desist order form the court.
Meanwhile, the case was heard by four different court case managers between 2020 and 2022.
Finally, State Farm had had enough and made a motion to dismiss the case because the claimant refused to attend examination for discovery.
As noted in the court’s decision, State Farm “argues that, despite making reasonable efforts to have this matter proceed, it has been forced into a holding pattern and has been unable to move the matter forward due to the unreasonable and unacceptable delay caused by [the claimant].”
Moreover, State Farm also told the court “the action should be dismissed for delay under Rule 24.01(1)(c). [State Farm] argues that a period of 13 years from the original accident and eight years from the commencement of the action constitutes an inordinate and inexcusable period of time in and of itself such that it raises a substantial risk that a fair trial will not be able to occur.”
But the court adjourned State Farm’s motion to dismiss, giving the claimant “a last chance” to comply with the request for examination for discovery.
If Hordo does not attend examination for discovery on Sept. 30, 2022, the court ruled, State Farm may “request a case conference to schedule a motion to dismiss the action,” the court ruled.