Delaying due process in lien action is not an advisable policy, whether one is the plaintiff or defendant. The court’s patience has a limit.
Tenoes Construction, a lien claimant and sole proprietorship, was without legal representation, the result of his lawyer being removed from the record. Peremptory trial dates had been fixed over 10 days before Associate Justice Todd Robinson.
In the meantime, the defendants, Rafael and Andreia Pinto, moved for an order dismissing Tenoes’ claim, striking the plaintiff’s defence to the Pinto’s own counterclaim, discharging the plaintiff’s lien, returning security for the lien, and amending the trial timetable.
Justice Robinson ordered Tenoes to serve trial affidavits and will-say statements. Three months past and Tenoes had not only failed to do so but had failed to explain his failure to comply.
Tenoes had proven extremely hard to pin down during this time. He had no email address. Neither his last known address nor that of his former lawyer provided valid service for the delivery of the Pinto’s motion record.
The Pinto’s then turned to a courier service. Justice Robinson initially rejected courier delivery as not meeting the Rules of Civil Procedure. However, he later relented, and validated the courier delivery due to the extreme circumstances.
Justice Robinson was clearly not amused by the ongoing delays.
“By failing to take appropriate steps to advance his claim in this action, despite repeated opportunities to do so, the plaintiff (Tenoes) has demonstrated a casual attitude toward the proceeding, my court orders, and the court’s processes,” he wrote.
“The plaintiff seems to have left the country in January 2023, failed to communicate with his now-former lawyer, and failed to make any effort to comply with the ordered deadline. He has opted for near radio silence in the past six months, taking no steps to vary the trial timetable or engage in any way in this litigation, despite pending trial dates.
“The plaintiff has failed to respond to the motion at all,” Justice Robinson continued. “He has not contacted defendants’ counsel to seek an adjournment while he decides whether to retain new counsel or act for himself. He did not appear at the motion hearing, despite having appeared before me on his own behalf at other remote hearings.”
This left the Pinto’s uncertain as how the trial would proceed.
“This motion cannot reasonably remain outstanding,” Justice Robinson wrote. “I am satisfied that the defendants are entitled to most the requested relief, except for the relief striking the plaintiff’s defence to counterclaim.”
However, Justice Robinson put a hold on that order, at least for the time being, offering Tenoes a bit of slack given his circumstances.
“Since the plaintiff is currently unrepresented, I find it appropriate to afford him a final opportunity to speak to his non-attendance and ongoing non-compliance before those orders take effect. I am accordingly staying operation of my orders dismissing the action, discharging the plaintiff’s lien, and returning security until at least the next hearing for trial directions.”
While Tenoes was granted this one last opportunity to explain his failures, repeated non-compliance came at a cost. The court ordered him to pay costs related to the Pinto’s motion in the amount of $3,250, including HST and disbursements.
“This case indicates that litigants, even those self-represented, should be aware that their rights may be extinguished for delay and failure to comply with court-ordered timetables, particularly given the summary process that lien actions are meant to be,” Edward Lynde, partner at Fasken Martineau DuMoulin LLP and associate Anna Lu told the Daily Commercial News.
“This decision should serve as a reminder that, despite the consternation of litigants regarding the pace of justice met by the courts, and seemingly endless complaints regarding the same, litigants too can be largely responsible for delay in the conduct of their own proceedings,” they said.
“As Justice Robinson aptly noted in this case, ‘Tolerance and sympathy wane with ongoing defaults in procedural obligations and breaches of court orders.’”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com
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