



COURT OF APPEAL FOR ONTARIO

CITATION: Garrett v. Oldfield, 2016 ONCA 424

DATE: 20160601

DOCKET: C61661

Juriansz, Brown and Roberts JJ.A.

Allison Garrett

Appellant
(Plaintiff)



and

Oldfield, Greaves,
D'Agostino, G. Edward
    Oldfield, Terrance J. Billo
, Catherine P. Watson (Catherine P.
    Watson Professional Corporation), Steiber Berlach LLP, Elizabeth Bowker, Iain
    Peck,
Guarantee Company of North America, Temple Insurance,
Southeast Grey Support Services, Irwin Dowker,
Her Majesty the Queen in Right of Ontario as Represented by
the Minister of Community and Social Services and Bud Carter

Respondents
(Defendants)

Allison Garrett, in person

Filipe A. Mendes, for the respondents, Oldfield, Greaves,
D'Agostino,
G. Edward Oldfield, and Terrance J. Billo

Heard: May 26, 2016

On appeal from the judgment of Justice Dale Parayeski of
    the Ontario Superior Court of Justice dated August 14, 2014.


Endorsement

[1]

The appellant appeals from the dismissal of her action against the respondents,
    her former lawyers. The appellant failed to pay the $10,400.00 in costs awarded
    to the respondents within 30 days of March 7, 2014, following the dismissal of
    her summary judgment motion against the respondents on January 23, 2014. The
    appellant did not appeal these orders. The appellants action was dismissed on
    August 14, 2014, pursuant to rule 57.03(2) of the
Rules of Civil Procedure
,
    for her failure to pay the costs awarded to the respondents.

[2]

Rule 57.03(2) provides the court with the discretion to dismiss a
    plaintiffs action for failure to pay a costs order. In determining whether an
    action should be dismissed, a court must balance the competing interests of the
    parties and consider all relevant factors: see
Tarion Warranty Corp. v.
    1486448 Ontario Inc.
, 2012 ONCA 288.

[3]

Despite remarks that he made during argument, the motion judges reasons
    demonstrate that he considered the appellants submissions concerning the
    merits of her action and her allegations of impecuniosity, and balanced them
    against the competing interests of the respondents and the administration of
    justice.

[4]

As the motion judge fairly noted concerning the merits of her action,
    the appellants motion for summary judgment was dismissed. The appellant filed
    no affidavit evidence with respect to the merits of her action in support of
    her summary judgment motion or before the motion judge on the respondents
    motion to dismiss her action, thereby preventing the court from assessing the
    merits of her claim. The respondents affidavit evidence refuting the
    appellants allegations of professional negligence and other improprieties was
    unchallenged.

[5]

Moreover, the motion judge correctly observed that the appellant had not
    raised the issue of her alleged impecuniosity to pay costs before the motion
    judge who had ordered them nor had she provided any evidence supporting her
    allegation of impecuniosity.

[6]

The motion judge properly weighed the appellants interests in pursuing
    her claim against the interests of the respondents in receiving compensation
    for their costs that the appellant caused to be incurred by her unsuccessful
    summary judgment motion, and of the administration of justice in ensuring that
    court orders are followed. The motion judges decision was within the bounds of
    his discretion and we cannot interfere.

[7]

The appellant also argues that the motion judge erred in failing to
    consider the potential bias of the motion judge who dismissed her summary
    judgment motion and ordered that she pay costs to the respondents. These submissions
    are without merit. The appellant did not appeal from the motion judges
    orders.  The appellant did not raise the issue of bias before the motion judge
    who dismissed her action nor does the record support this allegation.

[8]

Accordingly, the appeal is dismissed.

[9]

The appellant shall pay within 30 days the respondents partial
    indemnity costs in the all-inclusive amount of $5,000.00.

R.G. Juriansz
    J.A.

David Brown J.A.

L.B. Roberts
    J.A.


