



COURT OF APPEAL FOR ONTARIO

CITATION: Stockey v. Grant, 2019 ONCA 597

DATE: 20190712

DOCKET: C66147

Huscroft, Trotter and
    Zarnett JJ.A.

BETWEEN

Robert Stockey

Plaintiff (Respondent)

and

Gary Grant
and Diana Kopp Grant

Defendants (
Appellant
)

Ryder L. Gilliland, for the appellant

Ian K. Latimer, for the respondent

Heard: June 28, 2019

On appeal from the order of Justice Bonnie Wein of the Superior
    Court of Justice, dated October 15, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from an order dismissing two related proceedings and
    striking out his statement of defence in a third related proceeding arising out
    of an aborted real estate transaction in 2004.

[2]

The appellants factum accurately describes this case as having a tortured
    history. For the purpose of this decision, it is not necessary to delve deeply
    into the details. In short, the appellant commenced two actions against the
    respondent (CV-06-2644-00 and 615/08), as well as a lien application (85/11).
    The respondent commenced an action against the appellant (390/08).

[3]

There have been many motions, largely initiated by the appellant. He has
    accumulated many costs orders. He has a poor history of paying costs orders in
    a timely manner.

[4]

On March 7, 2018, the respondent brought a motion to have the
    appellants statement of defence in 390/08 struck out, and to dismiss the
    appellants action in CV-06-2644-00. Neither action 615/08 nor the lien
    application (85/11) were part of this proceeding. On June 11, 2018, Barnes J.
    granted the relief sought, to take effect if the appellant did not pay the
    identified outstanding costs orders within 60 days. In his order, Barnes J.
    specified CV-06-2644-00 as the action subject to dismissal.

[5]

On June 21, 2018, the parties attended a trial management conference
    before Wein J. in relation to 390/08. In her Endorsement, Wein J. declared
    that the deadline for satisfying the order of Barnes J. was August 13, 2018.
    She further said that there would be another trial management conference after
    August 13, 2018 if the matters are proceeding.

[6]

The appellant did not meet the 60-day deadline set by Barnes J. However,
    one week later, he attempted to make payment of the principal amount owing (but
    not interest) in the amount of $19,499.03. While the appellants bank draft was
    received by the respondents counsel, it has never been cashed.

[7]

The parties appeared before Wein J. again on October 15, 2018 in
    relation to 390/08. The appellant requested that the June 11, 2018 order of
    Barnes J. be set aside. The request was denied, in part for the following
    reasons:

At some point the Court must insist that its orders be complied
    with, and Mr. Grant has had many opportunities to pursue his case. While a trial
    on the merits is always to be preferred, I am convinced that further
    opportunities to Mr. Grant would not result in anything other than another
    delay.

[8]

At the end of her reasons, Wein J. clarified that her order covers both
    actions 390/08 and 615/08. The formal order of Wein J. was styled in action
    390/08. It provided, in para. 1, that the order made on June 11, 2018 stands
    and the matter is formally dismissed as of August 13, 2018 and in para. 3 that
    this order covers both actions 390/08 and 615/08.

[9]

The appellant submits that action 615/08 was not the subject of the
    order made by Barnes J. on June 11, 2018 and for that reason should not have
    been dismissed. He also argues that it was unfair to dismiss the proceedings,
    for the following reasons: (1) when his actions were dismissed, he had substantially
    complied with the Barnes J. costs order, albeit one week late; (2) the parties
    were on the eve of trial (scheduled to commence on November 28, 2018); (3) he
    has been unwavering in his desire for a trial on the merits; (4) he was
    self-represented; and (5) he offered some evidence for his tardiness (i.e.,
    medical issues).

[10]

The
    respondent submits that Wein J. did not err in refusing to grant relief from
    the order of Barnes J. The respondent submits that, over the years, the
    appellant has brought many motions, and has been the source of much of the delay.
    In the respondents submission, restoring the appellants actions (and
    permitting him to defend against the respondents action) will result in
    further delay. Moreover, the respondent argues that Wein J. did not err in
    dismissing 615/08 because the appellant had failed to satisfy a costs order
    made in that proceeding.

[11]

Subject
    to the condition discussed in para. 14 below, the appeal must be allowed. The
    dismissal of the 615/08 action was done without advance notice to the
    appellant. That action was not part of the proceedings before Barnes J., and it
    was not part of his order.

[12]

Granting
    relief in relation to the other matters is somewhat more difficult to justify.
    The appellant is the author of his own misfortune. He missed a significant
    deadline. However, and as discussed below, he has now tendered payment for all
    costs orders made against him and he is motivated to have this case determined
    on its merits.

[13]

We
    agree with Wein J. that a trial on the merits is always preferred. In all of
    the circumstances, it makes little sense to restore 615/08 alone. The three
    proceedings relate to the same subject matter. Allowing 615/08 to proceed
    alongside 390/08 with the appellants statement of defence struck out may compromise
    the presiding judges ability to adjudicate this dispute on the merits.

[14]

As
    noted above, the appellant had tendered a bank draft in the amount of $19,499.03
    in an attempt to satisfy the order of Barnes J. We were informed that, prior to
    the hearing of the appeal, he also tendered a cheque for $10,734.15 in
    satisfaction of interest on the amounts specified in the Barnes J. order, as
    well as other costs orders. Neither tender has been accepted. Those costs must
    be paid by the appellant. We direct that the appellant pay into the Superior
    Court of Justice to the credit of action 390/08 the total sum of $30,233.18
    within 30 days of the date of these reasons. If that condition is satisfied,
    the appeal is allowed, the order of Wein J. is set aside in its entirety, the
    appellants actions (CV-06-2644-00 and 615/08) are restored, and the order
    striking his statement of defence in 390/08 is set aside. As well, if the
    condition is satisfied, the respondent shall be entitled to payment out of
    court of such costs. If the condition is not satisfied, the appeal is dismissed.

[15]

Although
    the appellant was successful on this appeal, we make no costs order of the
    appeal. The appellants own conduct gave rise to the orders of Barnes J. and
    Wein J., and the need for this appeal.

[16]

Finally,
    given the history of this case, and in fairness to the respondent, it would be
    preferable that the case be given priority in terms of trial scheduling,
    subject to the fulfilment of the condition above. However, we are mindful of
    the fact that this will depend upon the priorities and available resources in the
    Region from which this case originates.

Grant Huscroft J.A.

Gary Trotter J.A.

B. Zarnett J.A.


