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By: Pilar Munoz and Fahad Warraich


The decision of the Ontario Superior Court of Justice in LaFlamme v. Meikle and Vigliotti, 2025 ONSC 2815, affirms that litigants, whether they are represented by counsel or not, are required to comply with their obligations under the Rules of Civil Procedure. Parties who disengage from their obligations under the Rules may face significant consequences, as was the case in LaFlamme, where the Defendants’ Statement of Defence was struck for sustained non-compliance with the Rules and multiple Court orders.


This Action arose from a failed real estate transaction. The Defendants were initially represented by counsel, and delivered a Statement of Defence in May 2023, which marked the last meaningful step taken by the Defendants in litigation. Although they were represented by counsel at the time, the Defendants failed to serve their affidavit of documents by the agreed deadline of November 30, 2023. Following Defendants’ counsel getting off the record, the Defendants were served with a Court Order requiring that they either appoint a new lawyer or serve a Notice of Intention to Act in Person. They did neither. 

As a result, a case conference was convened in September 2024, at which point a timetable was established for discovery. The Court also provided resources to assist self-represented litigants. Despite these accommodations, the Defendants took no steps to comply with the timetable.


The Plaintiffs thereafter sought an Order striking the Statement of Defence based on the Defendants’ noncompliance with the following:


a. Rule 3.04(4) – Failure to comply with a timetable

b. Rule 15.04(9) – Failure to comply with Rule 15.04(8) to appoint a new solicitor or serve a notice of intention to act in person where the litigant is served with an order removing their solicitor from the record;

c. Rule 30.08(2)(b) – Failure to serve an affidavit of documents in compliance with the Rules; and,

d. Rule 60.12(b) – Failure to comply with an interlocutory order.

 

Rule 3.04(4) – Failure to Comply with a Timetable


Rule 3.04(4) states:

 

If a party fails to comply with a timetable, a judge or associate judge may, on any other party’s motion,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s Defence; or

(c) make such other order as is just.

 

In his reasons, Associate Justice Kamal at paragraph 37 summarized that:

 

[37] In isolation, this failure may not be sufficient to strike a Statement of Defence; however, this breach must be viewed in the context of the Defendants’ failure to engage in the litigation as a whole and the significant delay in moving this matter forward since it was converted from an Application to an Action in May 2023 – at the instance of the Defendants.

 

Rule 15.04 (9) – Failure to Appoint Counsel

 

Rule 15.04 (8) and (9) state:

 

(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) serve a notice of intention to act in person under subrule 15.03 (3).  O. Reg. 575/07, s. 13 (3).

 

(9) If the client fails to comply with subrule (8),

(a) the court may dismiss the client’s proceeding or strike out his or her defence; and

(b) in an appeal,

(i) a judge of the appellate court may, on motion, dismiss the client’s appeal, or

(ii) the court hearing the appeal may deny the client the right to be heard.

 

His Honour’s reasons reflected on the essential role of communication through litigation at paragraph 61 and 62:

 

            [61] One of the purposes of Rule 15.04 and the obligations outlined therein assist the Court and parties to be clear on the method that counsel, parties and the Court may communicate with each other. Communication is a key component of the litigation process. The Rules facilitate communication between and counsel. If these are not complied with, communication becomes challenging. That hinders the litigation process overall and is contrary to the objective of the Rules.

 

 

            [62] Rule 15.04 and its obligations also facilitates access to justice and procedural fairness. Therefore, a breach of this Rule is not simply a technicality – it curtails the entire process and increases costs for the other parties.

 

Rule 30.08(2) (b) – Failure to Serve an Affidavit of Documents in Compliance with the Rules

 

Rule 30.08(2) (b) states as follows:

 

Failure to Serve Affidavit or Produce Document

(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,

[…]

(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant

 

Associate Justice Kamal highlighted at paragraph 46 that:


 [46] In Falcon Lumber at paragraph 57, the Court of Appeal provided a summary of the principles intended to guide the exercise of the court’s discretion when striking a party’s defence for non-compliance with documentary disclosure and production obligations including the following “common sense factors”:

 

            i.    whether the party’s failure is deliberate or inadvertent;

            ii.    whether the failure is clear and unequivocal;

            iii.   whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly;

            iv.    whether the substance of the default is material or minimal;

            v.     the extent to which the party remains in default at the time of the request to

strike out its pleading; and the impact of the default on the ability of the court to do justice in the particular case.

 

Rule 60.12(b) – Failure to Comply with an Interlocutory Order.

 

Rule 60.12(b) provides that where a party failed to comply with an interlocutory Order, Court may strike out that party’s defence.


In this case, the Court held that Defendants’ failures were sustained, unexplained, and prejudicial to the Plaintiffs, who had been attempting for over a year to move the case forward. The Court found that the Defendants’ conduct resulted in significant delay and increased costs to the Plaintiffs and that the Defendants’ showed a complete disregard for their obligations as litigants under the Rules, and the legal system.


As a result, the Court struck the Defendants’ Statement of Defence.


The importance of a litigant’s compliance with his or her obligations is highlighted by Associate Justice Kamal, as follows:


 [2] The considerations in this motion are not just technicalities. It is important for parties to comply with the Rules because they provide a structured and fair framework for resolving disputes in the civil justice system. Adherence to these procedures ensures that cases are handled efficiently, fairly, transparency, and consistently within the civil litigation system.

 

 [3] The integrity of the legal system is undermined when the Court permits non-compliance because it can lead to delays and increased costs. If we permit it, we promote it. The Court cannot promote non-compliance with the Rules.

 

This decision underscores that litigants, whether represented or not, must comply with their obligations under the Rules. Parties are expected to serve their affidavits of documents automatically and comply with court-ordered timelines as a matter of course. The Court made clear that sustained non-compliance, especially when left unexplained and uncorrected, may warrant serious consequences, including striking out a party’s pleading. The justice system prioritizes the fair and timely resolution of disputes. As this decision makes plain, delays and a failure to engage meaningfully in litigation will not be tolerated.

 
 
 

By: Ewa Michon


In the context of an Action seeking damages for professional negligence, the plaintiff bears the burden of demonstrating that the defendant’s actions fell below the acceptable standard of care. While the case law underscores the importance of expert evidence in assessing the applicable standard, the extent to which expert evidence is considered a mandatory evidentiary requirement in questions liability of for professional negligence has arguably not been consistently applied within Ontario’s Small Claims Court.  


The recent decision of Estate of Thankamma Mathi v. Juriansz, 2024 ON SCSM provides valuable guidance on the role of expert evidence in the Court’s assessment of professional negligence in Small Claims Court Actions.  The core of the dispute in Mathi was whether the defendant solicitor had acted negligently in providing legal services to his long-time client, Thankamma Mathi, who was deceased. In 2017, Mathi transferred her interest in a jointly-held property to her daughter, Suja Mathi, and son-in-law, Roger Amorim. The defendant solicitor had represented all parties in this transaction, the consideration for which was stated in the closing documents as consisting of "love and affection" without any additional pecuniary consideration. It later emerged that Suja and Roger had actually agreed to pay Mathi $1 million for her interest in the property, however they had concealed this fact from the defendant solicitor so as to avoid liability for the appropriate amount of land transfer tax which would have been payable in connection with the transaction.


Specifically, the Estate claimed the defendant solicitor neglected to: (1) adequately evaluate Mathi's mental capacity; (2) advise Mathi of her right to independent legal advice and the potential for conflict of interest; and (3) sufficiently safeguard Mathi's interests upon learning the transfer involved a $1 million payment to her. 


In its reasons, the Court first set out that the plaintiff must satisfy a four-part test to succeed in a claim of professional negligence, as follows: 

 

[11] To succeed in this claim, the plaintiff must demonstrate (1) the defendant owed

her a duty of care (2) the defendant’s conduct breached the standard of care owed (3)

the plaintiff sustained damage; and (4) the damage was caused in fact and in law by

the defendant’s negligence. Mustapha v. Culligan of Canada Ltd., 2008 SCC 17

 

The Court found no dispute that the defendant solicitor owed Mathi a duty of care. However, the critical point of contention was the standard of care element - namely, whether the defendant solicitor’s actions or omissions fell short of the standard expected of a reasonably prudent solicitor in the circumstances. 

 

In assessing whether the defendant solicitor was negligent in providing legal services in connection with the 2017 transfer, the Court set out the evidentiary framework applicable to professional negligence claims. Citing the Ontario Court of Appeal’s decision in Krawchuk v. Scherbak, 2011 ONCA 352, Deputy Judge Vicars highlighted the general rule that expert testimony is required to establish the appropriate standard of care and demonstrate its breach: 

 


[14] As a general rule, expert evidence is require to determine the standard of care in

professional negligence cases, subject to two exceptions:

1.      where the matters are  of a “non-technical” nature within the knowledge of

an ordinary person; or

2.      where the actions of the defendant are so egregious  that is obvious the

conduct has not met the standard, even without knowing what the

parameters of the standard were.

 

This principle echoed by Deputy Judge Vicars flows from the recognition that the conduct of specialized professionals, such as lawyers, often implicates technical considerations beyond the common knowledge of the average lay person. Absent two narrow exceptions the plaintiff must proffer expert evidence to make out their case.

 

Applying this framework, the Court found the specific allegations of negligence against the defendant solicitor regarding his purported failures to assess Mathi's capacity, advise her of her right to independent legal advice, and adequately protect her interests - were all highly technical issues. Moreover, the Court determined the defendant solicitor’s conduct did not rise to the level of an obvious dereliction of duty. Consequently, the Court held the plaintiff was required to adduce expert evidence to establish the applicable standard of care and demonstrate the defendant solicitor’s breach thereof. The plaintiff's failure to do so resulted in the claim being dismissed.

 

With respect to the balance of the plaintiff’s allegations, namely that the defendant solicitor failed to advise Mathi of her right to independent legal advice and the potential for conflict of interest; as well as the defendant solicitor’s alleged failure to safeguard Mathi's interests upon learning the transfer involved a $1 million payment to her, the Court found that the defendant solicitor carried out his professional duties appropriately. Absent any expert evidence opining on the appropriate scope of a solicitor's obligations in analogous circumstances, the Court concluded the plaintiff had failed to prove the defendant solicitor’s  legal services were deficient after learning of the $1 million payment to Mathi. Having taken steps to rectify the tax implications, the defendant solicitor’s further obligations were limited - he was not required to do more to "adequately protect" Mathi's interests.

 

Ultimately, the decision in Mathi underscores the pivotal role of expert evidence in professional negligence actions, even in the Small Claims Court context. Parties initiating such claims must be attuned to this evidentiary standard and prepared to discharge the associated onus.

 

 

 

 

 
 
 

By: Fahad Warraich, Associate


In the recent decision of Fadler v. Milton (Town), 2024 ONSC 4253, his Honour Justice Agarwal R. reinforces the Court’s post-Hryniak approach to summary judgment – namely, that parties put their best evidentiary foot forward in the face of a summary judgment motion and to make use of the procedural tools available to a party in respect of the same.

In May of 2020, George Fadler suffered catastrophic injuries when he lost control of his motorcycle near a Milton shopping plaza.  Mr. Fadler and his family alleged that a pothole near a catch basin at the plaza’s exit caused the accident. In April of 2022, Mr. Fadler and his family commenced an Action against the Town of Milton (“the Town”), the owner of the shopping plaza, and an unidentified contractor believed to be responsible for the road’s repair. The Town advised that it would assume the liability of the unidentified repair company.   


Following the close of pleadings in July of 2022, the plaintiffs took no substantive steps to discover the Action until September of 2023 when they proposed scheduling examinations for discovery or a summary judgment motion. At this time, the Town advised that it intended to move for summary judgment.


In November of 2023, the Town moved for summary judgment on the basis that the road was in a state of repair and that Mr. Fadler’s driving caused the accident (“the Motion”).  Prior to addressing the underlying issue of negligence, the Court first addressed a pair of threshold issues, specifically: (1) whether the plaintiffs’ argument that the Motion was brought prematurely for want of discovery; and (2) whether the plaintiffs’ hearsay evidence is admissible to demonstrate that there exists a triable issue.


Firstly, the Court rejected the plaintiffs’ argument that the Motion was premature due to incomplete discoveries. His Honour Justice Agarwal emphasized that in the post-Hryniak landscape, summary judgment motions are no longer exceptional steps but rather standard "final-adjudication-on-the-merits procedural tools.”


In light of this landscape, the fact that the plaintiffs did not take advantage of various discovery mechanisms available to them following the close of pleadings or at any time prior to the Motion, including proposing a discovery plan, examining witnesses, and cross-examining experts, demonstrated to the Court that they were prepared to argue the merits based on the existing evidentiary record.  In short, the Court held that the plaintiffs’ could not fail to use the discovery mechanisms available to them while concurrently arguing that the evidentiary record is incomplete for want of discovery.


In their responding materials, the plaintiffs sought to rely on an affidavit of a lawyer from the law firm representing the plaintiffs, which described a telephone call with representatives of an engineering firm and recounted their preliminary verbal opinions on road conditions.

Justice Agarwal noted that under the Rules, affidavit evidence can be put forth on an individual’s information and belief. However, where this hearsay evidence goes to a "fundamental contested aspect" of the summary judgment motion, the presiding Judge must first determine whether the evidence would be admissible under the Rules governing admissibility at trial.


Applying this principle, Justice Agarwal held that the plaintiffs' hearsay evidence was inadmissible, even for the limited purpose of demonstrating a triable issue. The Court distinguished the plaintiffs’ use of affidavit evidence from caselaw brought forth by the plaintiffs where actual expert reports were filed, noting that without a formal report, it was impossible for the adverse party and the Court to properly assess the validity and strength of the evidence.


In addressing the substantive issues of municipal liability and negligence, the Court considered whether (a) the plaintiffs could prove that the road presented an unreasonable risk of harm to ordinary users; (b) whether the plaintiffs could prove that the state of non-repair was causally linked to the accident; and (c) whether the Town had any statutory defences available to it. 


The Court found that the plaintiffs failed to establish that the road presented an unreasonable risk of harm to ordinary, reasonable drivers or that the state of non-repair caused the accident at issue due to the plaintiffs’ reliance on inadmissible hearsay evidence.


In particular, the Court rejected the plaintiffs’ attempt to rely on inadmissible evidence in the form of witness statements to create a triable issue on non-repair, emphasizing that the plaintiffs had ample opportunity to obtain this evidence through examinations for discovery or witness testimony, but failed to do so.


Relatedly, the Court rejected the plaintiffs' attempt to rely on inadmissible hearsay witness statements to prove causation, noting the plaintiffs failed to obtain proper affidavits or testimony from these witnesses. Justice Agarwal concluded that even if liability was established, the Town could still invoke a complete statutory defence.


This decision is an instructive reminder of the evidentiary standards required on summary judgment motions in the post-Hryniak landscape. The key lessons for litigants are twofold: first, parties must be vigilant in meeting the heightened requirements for adducing expert and hearsay evidence. Mere affidavits describing preliminary verbal opinions will generally be insufficient to demonstrate a genuine triable issue. Second, parties cannot afford to be dilatory in conducting discovery when facing a summary judgment motion. The Court has made clear that it will not permit otherwise inadmissible evidence where a party has failed to take the necessary steps to properly discover the action. Litigants must proactively use the various procedural tools available to them, such as discovery plans and examinations, in order to put their best evidentiary foot forward.

 
 
 

©2023 Katzman Litigation Professional Corporation

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