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Civil Litigation - Costs - Dismissal of Action for Non-Payment

. Allen v. Kumar

In Allen v. Kumar (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal of an associate judge's order striking a statement of defence for non-payment of outstanding cost orders [it was not a contempt order, which would have required a judge's order: R60.11(1)]:
[1] The Appellant, Brian Anish Kumar (the “Appellant”), appeals the order of Associate Justice Robinson dated July 22, 2022 (the “Decision”) striking his statement of defence under subrules 57.03(2) [SS: 'Costs of a Motion - Contested Motion'] and 60.12 [SS: 'Enforcement of Orders - Failure to Comply with Interlocutory Order'] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The basis for the order was the Appellant’s failure to pay an outstanding costs order and his history of non-compliance with other court orders.


[18] ... The Associate Judge did not strike the defence solely on the basis that it lacked merit. However, taking seriously the Court of Appeal’s view that striking a defence ought not to be a remedy of first resort, the Associate Judge looked to the merits of the defence to determine whether there was some basis for giving the Appellant a further chance to comply, despite the pattern of non-compliance that he had found.


[20] In addition, given the Appellant’s pattern of non-compliance and the absence of any indication that the Appellant intended to pay the Costs Order, the Associate Judge found that there would be no point to providing a further opportunity to comply. As noted in by the Court of Appeal in Falcon Lumber Ltd. v. 2480375 Ontario Inc., 2020 ONCA 310, at para. 52:
... although a court may also consider the merits of a party’s claim or defence, as it does under r. 60.12 dealing with the failure to comply with an interlocutory order, this factor may play only a limited role where breaches of production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations.

Did the Associate Judge Find the Appellant in Contempt?

[26] The Appellant submits that the Associate Judge erred in making a finding of contempt against him despite no motion for contempt having been brought and without applying the proper test.

[27] I reject this ground of appeal. In deciding to strike the defence, the Associate Judge relied on the Appellant’s “ongoing pattern of non-compliance with court orders and procedural obligations[.]” The Associate Judge did not find that the Appellant was in contempt of a court order. Non-compliance, or even a pattern of non-compliance, is not a finding of contempt.
. Lee v. McGhee

In Lee v. McGhee (Ont CA, 2019) the Court of Appeal dismissed an action for failure to pay outstanding costs awards:
[1] The appellant commenced an action against the respondents, and others, as a result of his removal from a KISS concert held in Ottawa. The appellant appeals the October 30, 2018 order of the motion judge, dismissing his action against the respondents pursuant to rr. 57.03(2) and 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that he had not abided by the Rules of Civil Procedure and had failed to pay outstanding costs awards.

[2] The appellant has not satisfied us that there is any basis for this court to interfere with the order of the motion judge.

[3] We reject the appellant’s assertion that the motion judge’s dismissal of his action against the respondents was unreasonable. She found that the “inescapable conclusion from the evidence in the record is that [the appellant] chose to ignore the costs orders”. She found that the interests of justice overrode the general principle that a matter should be heard on its merits and required the dismissal of the appellant’s claim against the respondents. The motion judge specifically considered the fact that the appellant is a self-represented litigant, and, as such, entitled to some accommodation and assistance. But she found that he had received “plenty”, and was not entitled to abuse the system or the parties opposite, nor ignore the rules and orders of the court, without fear of any consequence. The motion judge balanced the competing interests and considered all relevant factors. There is no basis for this court to interfere with the exercise of her discretion to dismiss the appellant’s claim against the respondents.


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Last modified: 03-11-23
By: admin