



COURT OF APPEAL FOR ONTARIO

CITATION: Cunningham v. Hutchings, 2018 ONCA 365

DATE: 20180412

DOCKET: C64451 and C64670

Hoy A.C.J.O., MacFarland and Roberts JJ.A.

BETWEEN

Mildred Cunningham

Plaintiff (Appellant)

and

Paul Anthony Hutchings, Deanna E. Walsh, Lisa C.
    Betts and Maxime Daoust

Defendants (Respondents)

Bryan Fromstein and A. Fabio Longo, for the appellant

Nawaz Tahir and Evan Bawks, for the respondent Deanna E.
    Walsh

Heard: April 9, 2018

On appeal from the order of Justice Flynn of the Superior
    Court of Justice, dated March 8, 2017, and from the order of Justice Gordon of
    the Superior Court of Justice dated September 14, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the orders of Gordon J. dated March 8, 2017 and
    Flynn J. dated September 14, 2017.

[2]

The order of Gordon J. dismissed her action for failure to file either a
    notice of appointment of counsel or of an intention to act in person within 30
    days of the Order of Reilly J. dated November 16, 2016 removing her former
    lawyer as her counsel of record.

[3]

The order of Reilly J. was deficient in that it did not include the text
    of rules 15.04(8) and (9) of the
Rules of Civil Procedure
, as required
    by r. 15.04(4). The importance of those provisions in an order removing a
    solicitor cannot be overstated. The obvious purpose is to bring home to the now
    unrepresented litigant the fact that she is required to give notice to the
    court and other parties to the litigation that she has either appointed
    alternate counsel or will be acting in person and that failure to do so can
    result in the court dismissing her proceeding or striking out her defence.

[4]

Further, the appellant, who did not appear before Gordon J., had not
    been served with the respondents motion in accordance with the Rules.

[5]

Gordon J. gave no reasons for his order and we cannot ascertain why he
    ordered the most draconian remedy available in the circumstances of this case.
    Accordingly, his order cannot stand.  We set aside his order and order that the
    appellants action shall be dismissed if she fails to file a notice of
    appointment of counsel within 14 days.

[6]

When the appellant learned of Gordon J.s order she promptly moved
    before Flynn J. under r. 37.14 to set it aside, on the basis that she failed to
    appear through insufficient notice. Flynn J. concluded that her recourse was to
    appeal Gordon J.s order to this court and dismissed her motion.

[7]

It is unclear from Flynn J.s reasons that he grappled with the
    threshold issue of insufficient notice within the meaning of r. 37.14. In our
    view, it was open to him to have granted the relief sought by the appellant. Accordingly,
    Flynn J.s order is set aside.

[8]

In view of this result, the costs order of Gordon J. is set aside and the
    costs order of Flynn J. is reversed so that the respondent Walsh is required to
    pay the appellant $5000. The costs of the appeal are to the appellant, fixed in
    the sum of $8500 agreed to by counsel. Both costs dispositions are inclusive of
    disbursements and HST.

Alexandra
    Hoy A.C.J.O.

J.
    MacFarland J.A.

L.B.
    Roberts J.A.


