CITATION: Hordo v. State Farm Mutual Automobile Insurance Company, 2022 ONSC 3678  
COURT FILE NO.: CV-14-518093  
DATE: 20220620  
SUPERIOR COURT OF JUSTICE - ONTARIO  
RE:  
DIANA MICHELLE DANIELLA HORDO, Plaintiff  
AND:  
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,  
Defendant  
BEFORE:  
VERMETTE J.  
COUNSEL: Diana Michelle Daniella Hordo, self-represented  
Kendall Andjelkovic, for the Defendant  
HEARD:  
February 23, 2022  
ENDORSEMENT  
[1]  
The Defendant moves for:  
a. an Order that this action be dismissed as against the Defendant for the failure of the  
Plaintiff to appoint a new lawyer of record or serve a notice of intention to act in  
person pursuant to Rule 15.04(8) of the Rules of Civil Procedure;  
b. in the alternative, an Order that this action be dismissed as against the Defendant  
for the failure of the Plaintiff to attend at duly scheduled examinations for discovery  
on March 24, 2016, and March 21, 2018, and as a result of the Plaintiff engaging  
in conduct that is frivolous, vexatious and an abuse of process, thereby  
unnecessarily delaying the action;  
c. in the further alternative, an Order that the Plaintiff attend in person at an  
examination for discovery at a date to be scheduled by the Defendant, failing which  
the Defendant may move, without notice, to dismiss the Plaintiff’s action as against  
it with costs;  
d. in the further alternative, an Order that the Plaintiff attend a defence medical legal  
assessment at a date to be scheduled by the Defendant, failing which the Defendant  
may move, without notice, to dismiss the Plaintiff’s action as against it with costs;  
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e. in the alternative, an Order that this action be dismissed as against the Defendant  
for the failure of the Plaintiff to pay the costs in the amount of $7,750.00 that she  
was ordered to pay on November 1, 2021.1  
[2]  
[3]  
I heard this motion as the Case Management Judge appointed for this matter.  
I grant the Defendant’s motion in part. As set out in more detail below, the Plaintiff is  
ordered to attend an examination for discovery in person, and the Defendant’s motion to dismiss  
the action for delay is adjourned to a case conference to be held before me after September 30,  
2022, i.e. the deadline for the examination for discovery of the Plaintiff to take place.  
A.  
FACTUAL AND PROCEDURAL BACKGROUND  
[4]  
The Plaintiff is a 36-year-old woman who was born in November 1985. This action arises  
from a motor vehicle accident that occurred on March 30, 2009 and in which the Plaintiff was  
involved. The dispute between the parties relates to statutory accident benefits.  
[5]  
This action was commenced on December 15, 2014, more than five years after the accident.  
Seven and a half years later, the action is still at a relatively early stage in that examinations for  
discovery have not been held.  
1.  
Pleadings  
[6]  
[7]  
As stated above, the Statement of Claim was issued on December 15, 2014.  
On February 5, 2015, the Defendant delivered a Notice of Intent to Defend and Jury Notice.  
On March 10, 2015, the Plaintiff noted the Defendant in default. The noting in default was set  
aside by Order of Master McAfee (now Associate Justice McAfee) dated July 22, 2015. No one  
appeared for the Plaintiff on the motion before Master McAfee.  
[8]  
[9]  
On July 30, 2015, the Defendant delivered a Statement of Defence.  
Amended pleadings were filed on February 10, 2017 (Amended Statement of Claim) and  
March 10, 2017 (Amended Statement of Defence).  
1
The Defendant also seeks in its Notice of Motion an order that the Plaintiff must be represented by a  
lawyer in good standing with the Law Society of Ontario for the duration of this proceeding. However, this  
request is not discussed in any detail in the Defendant’s Factum. In my view, it would be inappropriate for  
me to deal with this issue at this time given that the issue of the Plaintiff’s representation by her father, a  
non-lawyer, is currently before the Divisional Court as part of the Plaintiff’s motion for leave to appeal  
filed earlier this year.  
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2.  
Attempts to schedule the examination for discovery of the Plaintiff  
[10] On December 21, 2015, the Defendant served a Notice of Examination on the Plaintiff for  
an examination for discovery scheduled for March 24, 2016. The Plaintiff failed to attend the  
examination for discovery on that date and a certificate of non-attendance was obtained.  
[11] On August 26, 2016, counsel for the parties attended at Civil Practice Court to schedule a  
motion to be brought by the Defendant. Justice Diamond’s endorsement states that the  
Defendant’s “[m]otion to strike under Rule 21 coupled with relief arising from non-compliance  
with costs orders and failure to attend examinations” was scheduled for January 12, 2017.  
[12] On January 12, 2017, Justice Kristjanson heard the Defendant’s motion. She ordered that  
the Defendant deliver a notice compelling the Plaintiff to attend an assessment pursuant to section  
44 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”) by February 10, 2017.  
Justice Kristjanson made further orders regarding: (a) the delivery of amended pleadings, (b) the  
service of further affidavits of documents by March 30, 2017 (i.e. after the delivery of amended  
pleadings), and (c) the completion of examinations for discovery by May 15, 2017. Justice  
Kristjanson stated in her endorsement that if the Plaintiff failed to attend the section 44  
examinations and there was no further order regarding these examinations, the Defendant could  
bring back its motion to strike on seven days’ notice to the Plaintiff.  
[13] The examination for discovery of the Plaintiff was subsequently scheduled for May 11,  
2017. The Plaintiff was served with a Notice of Examination dated May 4, 2017. Between May  
4 and 11, 2017, the parties’ counsel agreed to adjourn the examination for discovery given that the  
section 44 assessments had not yet been completed and the reports had not been delivered.  
[14] On May 9, September 22, December 6 and December 11, 2017, counsel for the Defendant  
wrote to counsel for the Plaintiff to ask for the latter’s availability in order to reschedule the  
examination for discovery of the Plaintiff. Ultimately, on December 13, 2017, counsel agreed to  
reschedule the Plaintiff’s examination for discovery to March 21, 2018. On January 11, 2018, the  
Defendant served the Plaintiff with a Notice of Examination for an examination for discovery on  
March 21, 2018.  
[15] On March 12, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff  
confirming that the Plaintiff’s examination for discovery was scheduled to proceed on March 21,  
2018, and asking that the Plaintiff provide a current, up-to-date and complete affidavit of  
documents.  
[16] On March 20, 2018, i.e. the day before the examination for discovery, counsel for the  
Plaintiff sent the following letter to counsel for the Defendant (“March 20, 2018 Letter”):  
I have heard from my client in respect of the Examinations for Discovery scheduled  
for tomorrow (March 21, 2018), and I am advised that she is quite ill and unable to  
attend. I apologize for the relatively late notice, however, her status has only now  
been confirmed.  
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I am instructed, in light of her health, to seek a case conference with Justice  
Kristjanson, for the purpose of arranging that my client’s Examination for  
Discovery be conducted by written interrogatories, as she is currently unable to  
attend to be questioned in person. I will be pursuing appropriate medical  
confirmation in respect of this.  
I am also instructed by my client to request production of all documents previously  
requested from your client’s draft Affidavit of Documents. Copies of my client’s  
Schedule “A” documents were produced to your office last year, and a request was  
made for your client’s Schedule “A” production by letter of May 18, 2017. To date,  
none have been received. Without those productions, an examination of your client  
would be premature and incomplete. I attach for ease of reference a scan of my file  
copy of that correspondence.  
[…]  
I will be inquiring of Justice Kristjanson’s assistant as to when a case conference  
can be scheduled, and will advise you accordingly. I trust that we will be able,  
during a case conference, to address the above issues satisfactorily.  
[17] No case conference was scheduled with Justice Kristjanson.  
[18] On March 21, 2018, since the Plaintiff failed to attend the examination for discovery  
scheduled for that day, a second certificate of non-attendance was obtained.  
[19] On March 23, 2018, counsel for the Defendant wrote to counsel for the Plaintiff in response  
to the March 20, 2018 Letter. Counsel for the Defendant stated that he had not received the letter  
dated May 18, 2017 referred to in the March 20, 2018 Letter. He enclosed a complete copy of the  
Defendant’s Schedule “A” documents and noted that he had not received a complete copy of the  
Plaintiff’s Schedule “A” documents. Counsel for the Defendant requested that certain specific  
documents be provided by the Plaintiff.  
[20] On May 30, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff asking  
that the latter contact him to reschedule the examination for discovery of the Plaintiff. Since no  
response was received, follow-up e-mails were sent on June 25 and July 11, 2018, and another  
letter was sent on July 11, 2018.  
[21] On July 18, 2018, counsel for the Plaintiff sent a letter to counsel for the Defendant  
enclosing a “report” from Dr. Samuel Wong. The “report” was a letter dated May 14, 2018 from  
Dr. Samuel Wong to Whom It May Concern (“Wong Letter”). It stated the following:  
I had been a treating physician for Ms. Hordo since 2010. I recently assessed Ms.  
Hordo. Given her persistent symptoms along the low back, I do believe that she  
would not be able to sit through Discovery. The extensive sitting that would be  
required would be a hardship for Ms. Hordo. It would be beneficial if she can  
provide her testimony in writing.  
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[22] On July 24, 2018, counsel for the Defendant sent a letter to counsel for the Plaintiff advising  
that he had received instructions to proceed with a face-to-face examination for discovery of the  
Plaintiff, and that if the Plaintiff was not agreeable to that, the Defendant demanded access to the  
Plaintiff to conduct its own assessment. Counsel for the Defendant asked for an immediate  
confirmation of the Plaintiff’s position on this issue.  
[23] On February 5, 2019, counsel for the Defendant sent another letter to counsel for the  
Plaintiff. The letter read as follows:  
Once again, we have received instructions to proceed with a face to face  
Examination for Discovery of your client.  
In the event that your client is not agreeable we demand access to your client to  
conduct our own assessment.  
Please immediately confirm your positon [sic] in this matter[.]  
[24] On February 20, 2019, counsel for the Defendant sent another letter to counsel for the  
Plaintiff requesting access to the Plaintiff so that the Defendant could conduct its own medical  
assessment. Counsel for the Defendant sent follow-up letters on April 3, May 7, July 9, August 9,  
October 3, 2019, and also left a number of voicemail messages to counsel for the Plaintiff. Despite  
all of these attempts to obtain the Plaintiff’s position and move the matter forward, counsel for the  
Defendant did not hear back from counsel for the Plaintiff.  
[25] On January 16, 2020, counsel for the Defendant sent a letter to counsel for the Plaintiff  
advising that they had received instructions to bring a motion to dismiss the action for delay and  
asking for the availability of counsel for the Plaintiff for the motion. Counsel for the Plaintiff did  
not provide a response and the motion was scheduled for March 2, 2020.  
3.  
Events preceding the March 2, 2020 motion  
[26] The Defendant’s Notice of Motion dated February 18, 2020 sought the following relief:  
a. an Order that this action be dismissed as against the Defendant for the failure of the  
Plaintiff to attend at duly scheduled Examinations for Discovery, thereby  
unnecessarily delaying the herein action;  
b. in the alternative, an Order that the Plaintiff attend in-person at an Examination for  
Discovery at a date to be scheduled by the Defendant, failing which the Defendant  
may move, without notice, to dismiss the Plaintiff’s action as against it with costs;  
and  
c. in the further alternative, an Order that the Plaintiff attend a Defence Medical Legal  
Assessment at a date to be scheduled by the Defendant, failing which the Defendant  
may move, without notice, to dismiss the Plaintiff’s action as against them with  
costs.  
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[27] On February 25, 2020, counsel for the Plaintiff sent the following letter to counsel for the  
Defendant:  
I am writing further to my voicemail messages of yesterday (around noon) and of  
this morning, respecting the Motion you have brought, returnable on March 2,  
2020.  
As I indicated in my voicemail yesterday, I have been attending to my elderly  
mother since the middle of December, who has been in hospital since that time,  
with advancing Alzheimer’s Disease and other health issues. I have been at the  
hospital virtually every day. When I received your fax dated January 16, 2020  
(which was delivered by fax on January 17, 2020 at 4:09 p.m.), I was at the hospital  
and could not respond in writing. I left a voicemail after hours that day for your  
associate, Ms. Andjelkovic, and that was the last I heard on this matter. At that  
time, I had asked your firm to contact me directly so we could discuss possible  
ways of moving forward without a motion, and if a motion was necessary, to work  
out some agreed dates.  
The situation with my mother has remained the same, with virtually daily  
attendance and presence at the hospital, trying to coordinate care and a transfer to  
a nursing home. As a result, I did not follow up again by phone or email after  
calling on January 17, 2020. I apologize for being remiss in that regard, and my  
only excuse is that I have been preoccupied with this family matter on a constant  
basis for the past two and a half months. I am the only family here in Toronto for  
my mother.  
I got your Motion Record on the weekend, as I was able to pick it up from my  
mailbox. I had intended to call you first thing yesterday morning (Monday),  
however, I had to accompany my wife to a specialist appointment for a  
colonoscopy, and as I indicated in my voicemail, she discovered that morning that  
they found a large mass that needs to be surgically removed without delay. She has  
been referred to Sunnybrook Hospital, which has already called today to arrange a  
CT scan to see if the cancer has spread beyond the colon. The matter is moving  
very quickly, with anticipated surgery very soon. As I am sure you can appreciate,  
this is an added layer in terms of family health concern, and my focus is on being  
available for attendance at appointments, including tests and surgery, where they  
ask a family member to accompany the patient.  
I called your office yesterday as soon as I knew the situation that had arisen with  
my wife.  
I appreciate that this is a long-standing matter. I share many of your frustrations in  
that regard, and I trust you understand the basis for that. On a without prejudice  
basis, and to be perfectly transparent with you, it is my recommendation that my  
clients agree to the relief sought, i.e., attendance at Examinations for Discovery,  
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and to arrange same without any further delay. I remain optimistic that we can  
work out your Motion on a consent basis, in fact. That requires me to meet with  
my clients, however, especially given the history of this matter, and to obtain firm,  
written instructions. It also requires me, if we cannot agree on a resolution of the  
Motion, to be able to put together responding material for your Motion.  
The reality - my reality - right now, is that I have to deal with my wife’s cancer  
diagnosis and be available for attendance over the next week or two on short notice.  
The reality is that in addition to that, I am still required to address my mother’s  
health and residential issues on a daily basis, at least for a few more weeks until the  
space opens up in the nursing home, and to make those final arrangements. The  
reality for me is that on top of that, I am also going to be primarily responsible for  
parenting my son, as his mother goes through her surgical procedures and any  
follow-up cancer treatment. All of that, quite frankly, would be enough on its own,  
without the realities of being a sole practitioner without any support staff.  
It is for that reason that I inquired in my message about agreeing to a brief  
adjournment of your Motion. There is no intent to delay. There is simply a  
recognition that I truly will be unable to respond to the Motion, and will need a few  
weeks to allow other aspects of my world to settle down a bit. I am not looking for  
a long adjournment - perhaps in April. I can suggest April 9, 16, 20 and 29 as being  
available.  
I look forward to hearing from you regarding the above. Obviously my request for  
the adjournment is selfish, based on my family’s current health situations, but I am  
hopeful that it will allow me the opportunity to meet with my clients, and obtain  
instructions that may avoid the necessity of a Motion and move matters toward a  
conclusion.  
[28] Earlier on February 25, 2020, counsel for the Plaintiff had sent an e-mail to the Plaintiff,  
her father and her mother. This e-mail was included in the Plaintiff’s motion record and, therefore,  
she has waived solicitor-client privilege over it. The e-mail read, in part:  
As I anticipated, the report from Dr. Wong did not satisfy State Farm in respect of  
consenting to hold written discoveries. They have maintained that they are entitled  
to oral examinations for discovery of Daniella, and as I indicated in my earlier  
emails, I do not believe you can avoid oral examinations for discovery.  
I also indicated that Dr. Wong’s report was insufficient for the purpose of trying to  
avoid discoveries. Given your retraction of my authority to use any written  
authorizations signed by Daniella to obtain any further documentation on my own,  
I am unable to write to any third parties (including doctors) to try to get any  
additional information that might potentially support your position. I cannot even  
get updated medical information to try to support the claim for benefits on its  
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merits, since you have made it clear that I cannot use the authorizations that  
Daniella had signed.  
Until examinations for discovery are held, I cannot move the case forward. To  
set the action down for trial, I have to essentially certify that discoveries and other  
pre-trial steps are complete. Once the matter is set down for trial, I cannot initiate  
discovery. Unless Daniella is prepared to attend at oral examinations for discovery,  
I am also not in a position to compel State Farm to be examined. Accordingly,  
until Daniella attends for examinations for discovery, I cannot set the action  
down for trial, thereby risk of being dismissed for delay.  
For all intents and purposes, your position that Daniella will not attend at  
examinations for discovery has brought her claim to a standstill. I cannot get  
updated information that might allow me to deal with the claim on its merits. I  
cannot move the action forward without Daniella participating in steps that are  
mandated by the Rules of Civil Procedure.  
State Farm has now brought a Motion, returnable on March 2, 2020. They are  
seeking to dismiss the action for delay (for non-attendance at the previously  
scheduled discoveries), and in the alternative, they seek an order compelling  
Daniella to attend at an examination for discovery. They are also seeking, in the  
further alternative, an order that Daniella attend at a defence medical assessment to  
determine whether Dr. Wong’s opinion is supported, i.e ., that Daniella cannot  
attend at discoveries.  
For all the reasons I have outlined previously in my earlier emails (set out in the  
chain below), I have no reason to believe that the Court will not dismiss the action  
by virtue of Daniella’s non-attendance at discoveries. If we are fortunate, the order  
will only be one that compels her to attend, and if she then fails to attend in response  
to the order, then State Farm will be at liberty to dismiss the action. All of these  
orders will necessarily also have costs awarded against Daniella.  
[…]  
[Emphasis added.]  
[29] On February 27, 2020, counsel for the Defendant advised that they were agreeable to a  
short adjournment of the motion based on the personal circumstances of counsel for the Plaintiff.  
Counsel for the Defendant also noted that an attendance on March 2, 2020 to adjourn the motion  
would likely be necessary given that the motion had already been confirmed.  
[30] On February 28, 2020, Michael Hordo, the Plaintiff’s father and a former lawyer, sent an  
e-mail to the attention of: (a) Justice Kristjanson; and (b) Master Short (now Associate Judge  
Short), who was going to hear the Defendant’s motion. While the e-mail was sent by Mr. Hordo,  
it purported to be sent on behalf of the Plaintiff and her parents, and it requested an adjournment  
of the Defendant’s motion. The e-mail also contained allegations against counsel for the Plaintiff,  
- Page 9 -  
including that he was “mentally sick”; he failed to do a number of things; he was a “danger to  
himself, to his clients, and to the Administration of Justice”; “[he] lied to us”; and he was  
incompetent and should not be practicing law. Mr. Hordo also indicated in his e-mail that the  
Plaintiff was willing to answer written interrogatories, and he referred to the Wong Letter.  
[31] Later on February 28, 2020, Justice Myers sent the following e-mail to Mr. Hordo and the  
persons who were copied on his e-mail:  
I am writing to you as co-Lead of the Civil Team and delegate of the Regional  
Senior Justice. The court has been copied on correspondence recently that did not  
comply with Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194. This  
is improper and must stop immediately. I will be appointing a Case Management  
Judge to replace Kristjanson J. who is no longer hearing civil matters and therefore  
can no longer case manage these actions. Counsel will be contacted by the new  
Case Management Judge once appointed. The court will not communicate further  
with parties who are represented by counsel of record.  
[32] Mr. Hordo attended at the return of the Defendant’s motion on March 2, 2020. In light of  
the recent communication from Justice Myers, Master Short adjourned the motion to Justice Myers  
to be dealt with in case management. He noted in his endorsement that “[t]here are issues  
regarding progress of action and involvement of parents in this and companion matter […].”  
4.  
September 14, 2020 case conference before Justice Pinto  
[33] On March 2, 2020, Justice Myers advised the parties that Justice Pinto would replace  
Justice Kristjanson as Case Management Judge in this matter. He asked that the parties contact  
Justice Pinto’s assistant to arrange a first case conference. On March 9, 2020, counsel for the  
Defendant sent an e-mail to Justice Pinto’s assistant to ask that a case conference be arranged.  
Counsel for the Defendant sent a number of follow-up e-mails and, eventually, a case conference  
was scheduled before Justice Pinto on September 14, 2020.  
[34] In the weeks leading to the case conference, Mr. Hordo sent numerous e-mails to counsel  
for the Plaintiff, counsel for the Defendant and Justice Pinto’s assistant which contained  
derogatory statements about, and serious allegations against, counsel for the Plaintiff. The e-mails  
to Justice Pinto’s assistant were sent in contravention of Rule 1.09 of the Rules of Civil Procedure  
and Justice Myers’ endorsement dated February 28, 2020. In response to these e-mails, counsel  
for the Plaintiff indicated that the issue of his removal as counsel for the Plaintiff would need to  
be discussed during the case conference before Justice Pinto.  
[35] The case conference before Justice Pinto proceeded as scheduled on September 14,  
2020. However, due to various reasons, Justice Pinto did not issue an endorsement until January  
22, 2021. On December 17, 2020, the parties were advised that Justice Papageorgiou was  
replacing Justice Pinto to case manage this matter.  
[36] Justice Pinto’s endorsement dated January 22, 2021 stated, in part:  
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1. A Case Conference was held before me on September 14, 2020 in respect of this  
matter. At the time, I was the Case Management Judge under Rule 77 dealing with  
this matter. As per a subsequent endorsement of Myers J. dated December 17,  
2020, the parties were advised that, as I am no longer available to case manage this  
matter, Justice Papageorgiou is the new Rule 77 Case Management Judge. I am  
issuing this endorsement in respect of the September 14, 2020 case conference,  
however, further steps will be presided over by Papageorgiou J.  
[…]  
6. On March 2, 2020, State Farm brought a motion before Master Short to dismiss  
the action on the basis of the plaintiff’s failure to attend examinations for  
discovery. In light of Myers J.’s correspondence and the appointment of a Case  
Management judge, Master Short adjourned the motion.  
7. Due to COVID-19 and its initial impact on the Superior Court and due to  
scheduling challenges, a Case Conference was not held before me until September  
14, 2020.  
8. The plaintiff has not been discovered by State Farm. She has resisted discovery  
on the basis of alleged medical reasons and obtained a report from a medical  
doctor. State Farm does not agree that the plaintiff can avoid discovery and has  
brought a motion for dismissal of the action (for plaintiff’s failure to attend  
discovery) or, in the alternative, for an order compelling the plaintiff to attend at  
discovery.  
9. The plaintiff is not a minor, nor a person under a disability as there has never  
been a finding of incapacity. As plaintiff, she is represented by a lawyer, Mr.  
Besunder. However, the plaintiff’s father, Michael Hordo, a former lawyer, has  
continued to write directly to the court, copying others, criticizing Mr. Besunder’s  
representation of his daughter and conduct of the action. Mr. Besunder has stated,  
in light of Mr. Hordo’s criticisms, which the plaintiff did not disavow on the  
conference call or otherwise, that it is impossible or virtually impossible for him to  
continue to act for the plaintiff and either the plaintiff must file a notice to appear  
in person, or she must appoint new counsel, or he must bring a motion to remove  
himself as lawyer of record.  
10. At the September 14, 2020 Case Conference, Mr. Besunder estimated that he  
could provide the plaintiff’s entire legal file to the plaintiff within 3 weeks which  
would provide the plaintiff with sufficient time to identify new counsel.  
11. Counsel for the defendant insurer requested a quick time line by which it would  
be permitted to bring its motion to have the action dismissed, or to have the action  
move forward expeditiously including by way of the plaintiff’s mandated  
attendance at discovery.  
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12. Counsel for the defendant also requested that I issue directions so that the  
plaintiff, or anyone purporting to act on her behalf, including her father, cease  
writing directly to the court or, when corresponding with counsel, cease copying  
counsel who were formerly engaged on this file but who are no longer involved.  
13. I regret that, due to a variety of developments, there has [sic] delay in my issuing  
this endorsement. In the interim, Papageorgiou J. has been appointed the Case  
Management Judge. In my view, the parties having attended the Case Conference  
before me on September 14, 2020, there are some orders that should come from me  
and, subject to the parties attending another Case Conference before Papageorgiou  
J., certain orders that should come from Her Honour based on an update of  
developments that may have taken place between September and now.  
14. In light of the foregoing, an Order shall go as follows:  
a)  
b)  
Michael Hordo is prohibited from communicating, directly or indirectly,  
with opposing counsel or with the court (or court staff) with respect to this  
matter. I repeat, this is an order of the court.  
The plaintiff, or anyone acting on her behalf, shall refrain from  
communicating with or copying the following counsel who were formerly  
working on this matter (or on companion actions), but whom [sic] are no  
longer doing so: Michael Chadwick, John Olah, Mark Gelowitz. If one of  
these lawyers confirms that they are once again involved in this proceeding,  
communications may resume.  
c)  
The parties shall attend a Case Conference before Papageorgiou J. by  
writing forthwith to Her Honour’s judicial assistant […].  
[37] On January 31, 2021, counsel for the Defendant first contacted Justice Papageorgiou’s  
assistant to schedule a case conference before her. Ultimately, no case conference was held before  
Justice Papageorgiou and, in the spring of 2021, the case management of this matter was  
transferred to me.  
5.  
First case conferences before me  
[38] The first case conference held before me took place on April 30, 2021 by  
telephone. Counsel for the Plaintiff and for the Defendant were in attendance. I directed counsel  
for the Plaintiff to do the following by May 28, 2021: (a) either advise me, through my assistant,  
that he had received satisfactory instructions allowing him to continue to represent the Plaintiff,  
including on the Defendant’s motion to dismiss the action for failure to attend examinations for  
discovery; or (b) serve and file motion materials for an order removing him as lawyer of record in  
this matter.  
[39] The second case conference took place on June 17, 2021 by telephone, with the same  
counsel in attendance. Counsel for the Plaintiff reported that despite his efforts, he had been unable  
- Page 12 -  
to obtain a motion date before a Master (now an Associate Justice) for his motion to be removed  
as lawyer of record. Further, he stated that he had not heard back from his client since the last case  
conference, even though he had sent her a number of e-mails and also left a voicemail message. I  
held that I would hear the Plaintiff’s counsel’s motion and I established a timetable for the delivery  
of motion materials. My endorsement stated that if the motion was opposed, a case conference or  
a short hearing would be arranged.  
[40] On July 14, 2021, counsel for the Plaintiff advised my assistant by e-mail that the  
Plaintiff had served responding motion materials on July 13, 2021. In accordance with my  
endorsement dated June 17, 2021, he requested that a case conference be scheduled. This request  
was followed by numerous communications from the Plaintiff and counsel for the Plaintiff that  
were sent to my assistant in contravention of Rule 1.09 of the Rules of Civil Procedure. Both the  
Plaintiff and counsel for the Plaintiff were directed to stop such communications.  
[41] Another case conference was held before me by telephone on July 29, 2021. The  
Plaintiff participated personally in the case conference, as well as her counsel and counsel for the  
Defendant. My endorsement of that date stated the following:  
At the last case conference in this matter on June 17, 2021, I ordered a timetable  
for Mr. Besunder’s motion to be removed as lawyer of record. The timetable  
provided that if Mr. Besunder’s motion was going to be opposed by the Plaintiff,  
Ms. Hordo, then a further case conference should be scheduled before me. I was  
advised that after Mr. Besunder served his motion record, Ms. Hordo served  
responding materials, which also purported to bring a new motion and were served  
on a number of third parties. I have not seen the motion materials served by the  
parties. Given Ms. Hordo’s apparent intention to oppose Mr. Besunder’s motion,  
a case conference was scheduled for today.  
This case conference proceeded by telephone conference. It was obvious that  
Ms. Hordo was being told what to say by someone else during the case conference,  
which is concerning in light of previous endorsements made by other judges in this  
matter. Consequently, I have advised all parties that future case conferences will  
take place by videoconference. I have also urged Ms. Hordo to start looking for a  
new lawyer. She was reminded during the call that her father cannot represent her  
in this litigation.  
I have advised Ms. Hordo that, given that this case is case managed by me and that  
all motions in this matter are to be made to me (unless I direct otherwise), she needs  
to arrange for a case conference with me and the Defendant before bringing any  
motion. This also applies to the Defendant. Any motion that Ms. Hordo purported  
to bring in the last month is not going to proceed. Mr. Besunder’s motion to be  
removed as lawyer of record needs to be determined first. The next steps in the  
action can be discussed at the next case conference in October.  
- Page 13 -  
Despite the fact that Mr. Besunder was prepared to consent to an order that he  
provide to Ms. Hordo a copy of his file within three weeks after an order removing  
him as lawyer of record, Ms. Hordo was still not prepared to agree to an order  
removing Mr. Besunder as lawyer of record, even though she confirmed today that  
she did not want Mr. Besunder to continue to act as her lawyer in this  
litigation. However, she was unable to articulate any valid ground in opposition to  
Mr. Besunder’s motion, and just repeated that I had to read her motion  
materials. As a result of her position, a formal motion was scheduled, but I warned  
Ms. Hordo that she could be ordered to pay costs on the motion in the event her  
response to Mr. Besunder’s motion raises irrelevant grounds and simply confirms  
that there has been a breakdown in the lawyer-client relationship making the  
removal of Mr. Besunder necessary. I advised Ms. Hordo that she should get legal  
advice and that she or a lawyer retained by her can reach out to Mr. Besunder  
directly if she wishes to resolve the motion before September 13, 2021.  
[42] The formal order I made read as follows:  
I order the following with respect to Mr. Besunder’s motion to be removed as  
lawyer of record, which the parties agreed will proceed in writing:  
- Mr. Besunder will deliver his motion materials by August 9, 2021.  
- Ms. Hordo will deliver her responding motion materials by August 23,  
2021. The responding motion materials are to be strictly limited to a response  
to Mr. Besunder’s motion to be removed as lawyer of record. The responding  
motion materials are not to be served on any third parties and cannot seek any  
unrelated relief.  
- Mr. Besunder will deliver his Factum by August 30, 2021.  
- Ms. Hordo will deliver her Factum by September 9, 2021.  
- I will hear the motion in writing on September 13, 2021.  
- If any issues arise with respect to the timetable set out above, the parties can  
contact my assistant to schedule a case conference.  
[…]  
[Emphasis in the original.]  
6.  
Motion of the Plaintiff’s counsel to be removed as lawyer of record  
[43] I released my endorsement granting the motion of counsel for the Plaintiff to be removed  
as lawyer of record on September 17, 2021 (2021 ONSC 6193). As I noted in my endorsement:  
- Page 14 -  
“[w]hile this could and should have been a simple motion to determine in the  
circumstances of this case, Ms. Hordo filed more than 600 pages in response to the  
motion and is seeking various relief, not only against Mr. Besunder, but also against  
his wife, the Defendant, the Defendant’s lawyers and other non-parties. She also  
alleges apprehension of bias and bias on my part.  
[44] The Plaintiff’s motion materials in response to her counsel’s motion to be removed as  
lawyer of record did not comply with my order dated July 29, 2021, which clearly stated that the  
Plaintiff’s responding materials were to be strictly limited to a response to her counsel’s motion to  
be removed as lawyer of record and could not seek any unrelated relief. Her materials contained  
three affidavits sworn by her father, Mr. Hordo, numerous exhibits to these affidavits, and a Notice  
of Constitutional Question. In addition to seeking unrelated relief, the Plaintiff’s materials were  
replete with criticisms towards, and serious allegations against her counsel, including allegations  
of bad faith, gross negligence, forgery, breach of undertaking, breach of the Rules of Professional  
Conduct, receiving bribes from the Defendant, misleading the Court, criminal offences and other  
wrongdoing.  
[45] As stated above, I granted the motion of counsel for the Plaintiff to be removed as lawyer  
of record, and I also ordered him to provide a copy of his file to the Plaintiff within three weeks of  
the date of my endorsement. I denied the Plaintiff’s request for various orders, without prejudice  
to motions for the same or similar relief being properly brought in the future. I also declined to  
recuse myself as I found that the Plaintiff had failed to establish a reasonable apprehension of bias.  
[46] On November 1, 2021, after receiving written submissions from the parties, I released a  
costs endorsement ordering the Plaintiff to pay costs on a substantial indemnity basis to her former  
counsel in the amount of $7,750 within 30 days (2021 ONSC 7229). I stated the following on the  
issue of the appropriate scale of costs:  
In my view, this is a case where substantial indemnity costs are warranted. As set  
out in more detail in my Endorsement dated September 17, 2021, the Plaintiff  
ignored and failed to comply with my order dated July 29, 2021 that her responding  
materials were to be strictly limited to a response to Mr. Besunder’s motion to be  
removed as lawyer of record and could not seek any unrelated relief. The Plaintiff  
filed voluminous and improper responding materials that were largely irrelevant to  
the issues raised on the motion and asked for numerous orders in her  
favour. Further, the Plaintiff’s materials contained numerous disparaging and  
vexatious statements and serious allegations against Mr. Besunder and others,  
including allegations of criminal conduct and professional misconduct that were  
unsubstantiated.  
- Page 15 -  
7.  
The Plaintiff’s Application for judicial review and motions for leave to appeal  
[47] On October 25, 2021, the Plaintiff served a lengthy Notice of Application for Judicial  
Review of my order dated September 17, 2021. On October 29, 2021, the Divisional Court sent  
to the Plaintiff a “Notice that Proceedings May Be Stayed or Dismissed” pursuant to Rule 2.1.01  
of the Rules of Civil Procedure because the Plaintiff’s application appeared on its face to be  
frivolous, vexatious or otherwise an abuse of process of the Court. Guidance was provided to the  
Plaintiff with respect to issues that she should address in response to the notice.  
[48] On December 1, 2021, Justice Corbett dismissed the Plaintiff’s application as frivolous,  
vexatious and an abuse of process (2021 ONSC 7908). He stated the following:  
Ms Hordo provided a written response to the R.2.1.01 notice, including fourteen  
attachments. The response fails to address the concerns raised by the court  
respecting this application. Therefore, for the reasons that follow, the application  
is dismissed as frivolous, vexatious and an abuse of process. In addition, the court  
concludes that Ms Hordo is likely to engage in further vexatious litigation and that  
her recourse to the courts should be controlled to protect the administration of  
justice from wasting resources on further vexatious litigation: Ms Hordo may not  
bring or pursue any proceedings in this court in connection with the claims at issue  
in her action against State Farm unless either (a) she is represented by a lawyer  
licensed to practice law in Ontario; or (b) she obtains permission from an  
administrative judge of the Divisional Court or their designate.  
[49] However, Justice Corbett held that the dismissal of the application for judicial review was  
without prejudice to the Plaintiff bringing a motion for leave to appeal: (a) my decision to refuse  
the Plaintiff permission to have her father represent her; and (b) my costs order. The time for the  
Plaintiff to bring such a motion for leave to appeal was extended to January 4, 2022. Justice  
Corbett expressly cautioned the Plaintiff that “the proceedings below are not stayed pending  
decision on the motion for leave to appeal.”  
[50] The Plaintiff did bring a motion for leave to appeal in the Divisional Court in early January  
2022. She also brought a motion for leave to appeal in the Court of Appeal with respect to the  
order of Justice Corbett dismissing her application for judicial review.  
[51] The Plaintiff’s Notice of Motion for Leave to Appeal filed in the Divisional Court is not  
restricted to the relief set out in Justice Corbett’s order. Among other things, the Plaintiff also  
seeks “[a] recommendation for the Panel of the Divisional Court to use their inherent jurisdiction  
to use direct indictment under s. 577 of the Criminal Code of Canada, for fraud, forgery, and  
uttering.”  
[52] In connection with her application for judicial review and motion for leave to appeal in the  
Divisional Court, the Plaintiff has sent numerous communications to the Divisional Court and my  
assistant that did not comply with Rule 1.09 of the Rules of Civil Procedure.  
- Page 16 -  
[53] The delivery of notices of motion for leave to appeal by the Plaintiff did not trigger an  
automatic stay and the Plaintiff has not obtained a stay order from the Divisional Court or the  
Court of Appeal. At the time of the release of this decision, I am not aware of any decision of the  
Divisional Court or the Court of Appeal with respect to the Plaintiff’s motions for leave to appeal.  
8.  
Subsequent case conferences  
[54] A case conference was held before me on November 3, 2021. At that time, I established a  
timetable for the present motion. We also discussed a motion that the Plaintiff was considering  
bringing, which appeared to be a motion for partial summary judgment. I included in my  
endorsement references to case law on this issue for the parties to consider before the next  
conference.  
[55] Another case conference was held before me on December 15, 2021. At that time, we  
finalized the scheduling and timetable for this motion. I also established a timetable to receive  
submissions from the parties with respect to the settling of the order removing the Plaintiff’s  
counsel as lawyer of record, which had not yet been approved by the Plaintiff as to form and  
content, despite a number of requests.  
[56] On December 23, 2021, I issued an endorsement on the issue of the settling of the order,  
and signed the draft order forwarded to me by the Plaintiff’s former counsel, with one minor  
change. My endorsement read as follows:  
Further to my endorsement dated December 15, 2021, I received from Mr.  
Besunder, the Plaintiff’s former lawyer, his proposed draft order with respect to:  
(a) my decision dated September 17, 2021 removing him as lawyer of record, and  
(b) the related costs decision dated November 1, 2021. Mr. Besunder sent the draft  
order to my assistant on December 15, 2021 and, as required, he copied Ms. Hordo  
and counsel for the Defendant. Mr. Besunder advised that the draft order had been  
approved as to form and content by counsel for the Defendant, but that he had not  
received any response or comments from Ms. Hordo.  
My December 15, 2021 endorsement provided that Ms. Hordo had until 3 p.m. on  
December 22, 2021 to advise me of her position regarding the draft order by  
sending an e-mail to my assistant. No e-mail was received from Ms. Hordo.  
My endorsement also provided that Mr. Besunder had until 3 p.m. on December  
23, 2021 to send me comments in reply. No such comments were received,  
presumably because Ms. Hordo did not provide any comments regarding Mr.  
Besunder’s proposed draft order.  
I have reviewed the draft order sent by Mr. Besunder. It accurately reflects my  
decisions and contains the language required by Rule 15.04 of the Rules of Civil  
Procedure for this type of order. It is a typical order removing a lawyer of record  
and is not controversial in any way.  
- Page 17 -  
However, to reflect the fact that the Plaintiff had 30 days to pay the costs ordered  
on November 1, 2021, I have changed the date from which the order bears interest.  
[57] As of the date of the hearing of this motion, the Plaintiff had not appointed a new lawyer  
of record or served a notice of intention to act in person.  
B.  
SUBMISSIONS OF THE PARTIES  
1. Submissions of the Defendant  
[58] The Defendant submits that the action should be dismissed under Rule 34.15(1) for the  
Plaintiff’s failure to attend an examination for discovery. In the Defendant’s view, the Plaintiff  
has shown complete disregard for participating in the discovery process required in this litigation,  
and she was given multiple chances to comply with her discovery obligations. The Defendant  
argues that, despite making reasonable efforts to have this matter proceed, it has been forced into  
a holding pattern and has been unable to move the matter forward due to the unreasonable and  
unacceptable delay caused by the Plaintiff. The Defendant states that it has incurred unnecessary  
and significant legal costs and suffered prejudice due to the impact that the passage of time has on  
evidence.  
[59] The Defendant also submits that the action should be dismissed for delay under Rule  
24.01(1)(c). The Defendant argues that a period of thirteen years from the original accident and  
eight years from the commencement of the action constitutes an inordinate and inexcusable period  
of time in and of itself such that it raises a substantial risk that a fair trial will not be able to occur.  
The Defendant further argues that the Plaintiff and her father have repeatedly demonstrated a  
disdain and/or disrespect for the court process, including failing to adhere to orders of the Court,  
and that the accusations contained in the Plaintiff’s materials demonstrate a disrespect for counsel,  
the court and the administration of justice. The Defendant points out that the Plaintiff is  
responsible for moving the action along, but it has been the Defendant that has been working  
tediously to attempt to have this matter progress through the stages of litigation. The Defendant  
also points out that the Plaintiff has failed to provide: (a) a reasonable explanation for the delay  
she has caused in moving this matter forward, and (b) convincing evidence that there is no  
substantial risk that a fair trial is not possible, including evidence that all relevant documents have  
been preserved, key witnesses are available, and medical evidence of the progress of the injuries  
is available.  
[60] In addition, the Defendant relies on Rule 15.04(9) and argues that the action should be  
dismissed because of the Plaintiff’s failure to appoint a new lawyer or serve a notice of intention  
to act in person. It submits that the Plaintiff has been aware that she would need to seek out new  
counsel as early as September 2020, and that the endorsement removing her former counsel as  
lawyer of record was released on September 17, 2021. The Defendant states in its Factum that the  
Plaintiff was served with the formal order removing the Plaintiff’s counsel as lawyer of record on  
January 15, 2022, but there is no evidence (such as an affidavit of service) before me to this effect.  
[61] Finally, the Defendant takes the position, based on Rule 57.03(2), that the action should be  
dismissed as a result of the Plaintiff’s failure to pay to her former counsel the costs in the amount  
- Page 18 -  
of $7,750 that were awarded against her on November 1, 2021. There is no evidence in the record  
before me from the Plaintiff’s former lawyer confirming that the costs have not been paid.  
2.  
Submissions of the Plaintiff  
[62] The only affidavit evidence filed by the Plaintiff on this motion consists in an affidavit of  
her father, Michael Hordo. The Plaintiff’s motion materials, which include some of the materials  
that she filed in the Divisional Court and the Court of Appeal, contain numerous misleading and  
inaccurate statements, and some outright falsehoods. The Plaintiff’s materials are voluminous –  
more than 675 pages. Nevertheless, almost all of her materials are irrelevant to the issues raised  
on this motion.  
[63] The Plaintiff asks that this Court stay further action in this matter until the Divisional Court  
and the Court of Appeal hear all the motions for leave to appeal that have been brought by the  
Plaintiff. The Plaintiff also argues that the Defendant should be barred from bringing any motion  
because they have been in breach of the SABS for more than 13 years.  
[64] The Plaintiff’s response to the delay in this proceeding and her failure to attend an  
examination for discovery is very brief and is summarized as follows in her Factum:  
The Defendant, non-insurer, Certas/Desjardins and their lawyers are protesting  
profusely in their Factum that the Appellant failed to attend examinations on March  
24 2016 and March 21 2018. These protestations are without merit as the matter  
of the collusions between Mr. Besunder and the Defendant’s lawyers, Beard Winter  
is before the Divisional Court and their criminal conversion of a cost order from  
another matter, another pleading and file, belonging to another law firm, is currently  
under investigation and it would be highly improper for this Court to rule on a  
matter that is now before the criminal authorities. The Plaintiff attended medical  
examinations including Dr. Wong September 2018 who determined that I was  
unable to sit to in-person examinations under Oath.  
[65] I note that the Wong Letter is not attached to Mr. Hordo’s affidavit filed on this motion.  
However, it was included in a document entitled “Judicial Review, Compendium and Case Law”  
that the Plaintiff uploaded onto CaseLines.2 The record before me does not include any evidence  
of the Plaintiff herself regarding her ability to participate in an examination for discovery in 2022.  
There is also no evidence from a doctor or other health professional regarding the Plaintiff’s ability  
to participate in an examination for discovery in 2022.  
2 The same document, i.e. “Judicial Review, Compendium and Case Law”, also includes a report of Dr.  
Wong dated September 26, 2018, but, contrary to the Wong Letter, this report does not directly address the  
Plaintiff’s ability to attend an examination for discovery.  
- Page 19 -  
C.  
DISCUSSION  
1. The Plaintiff’s objections based on the pending motions for leave to appeal  
[66] I reject the Plaintiff’s submission that the determination of this motion should wait until  
the final determination of the motions for leave to appeal that are pending before the Divisional  
Court and the Court of Appeal. The Plaintiff was expressly advised in the endorsement of Justice  
Corbett that “the proceedings below are not stayed pending decision on the motion for leave to  
appeal.” Despite this, the Plaintiff has failed to bring a motion for a stay. Further, she has failed  
to articulate on this motion how she meets the test for a stay.  
[67] The issues raised on this motion are different from the issues that are the subject matter of  
the Plaintiff’s motions for leave to appeal. The delay in this matter has been significant, and the  
Defendant has been seeking to obtain a determination of the issues raised on this motion since  
March 2020. I see no valid reason to create additional delay by postponing the determination of  
this motion and pausing the progress of this action. This is particularly the case given that the bulk  
of the issues raised by the Plaintiff with respect to my endorsement dated September 17, 2021 have  
been found by the Divisional Court to be frivolous, vexatious and an abuse of process.  
[68] I also reject the Plaintiff’s submission that the Defendant should be barred from bringing  
any motion because it has allegedly been in breach of the SABS for more than 13 years. The issue  
of whether the Defendant is in breach of its obligations is the subject matter of this action and  
cannot be determined on this motion.  
2.  
Dismissal based on the failure to serve a Notice of Intention to Act in Person  
[69] In my view, the action cannot be dismissed pursuant to Rule 15.04(9) of the Rules of Civil  
Procedure for the failure of the Plaintiff to appoint a new lawyer of record or serve a Notice of  
Intention to Act in Person as required by Rule 15.04(8).  
[70] Rule 15.04(9) provides that the court may dismiss the proceeding if a party fails to appoint  
a new lawyer or serve a Notice of Intention to Act in Person “within 30 days after being served  
with the order removing the lawyer from the record” [emphasis added]. As stated above, there is  
no evidence (such as an affidavit of service) before me showing when the order removing the  
Plaintiff’s counsel as lawyer of record was served on the Plaintiff. Further, I note that since my  
order removing the Plaintiff’s counsel as lawyer of record, the Plaintiff has been an active  
participant in the action.  
[71] However, the Plaintiff must comply with court orders, including the terms of my order  
removing the Plaintiff’s counsel as lawyer of record, which has not been stayed. The Divisional  
Court has not allowed the Plaintiff to bring a motion for leave to appeal with respect to the removal  
of her counsel as lawyer of record. Consequently, the Plaintiff must either appoint a new lawyer  
or serve a Notice of Intention to Act in Person forthwith if more than 30 days have elapsed since  
she was served with the order. If she fails to do so, this factor will be considered by me when the  
matter comes back before me, as set out below.  
- Page 20 -  
3.  
Dismissal based on the Plaintiff’s failure to pay costs to her former counsel  
[72] I also conclude that the action cannot be dismissed based on Rule 57.03(2) for the  
Plaintiff’s failure to pay the costs in the amount of $7,750.00 that she was ordered to pay to her  
former counsel on November 1, 2021. As stated above, there is no evidence in the record before  
me from the Plaintiff’s former lawyer confirming that the costs have not been paid. In addition,  
the Defendant has not referred me to any case law where an action was dismissed as against a  
defendant as a result of the plaintiff’s failure to pay costs to a non-party. In my view, the policy  
and principles underlying Rule 57.03(2) do not squarely apply in a situation where an outstanding  
costs award is owed to a non-party. Even if Rule 57.03(2) could apply to such a situation, I would  
decline to grant the drastic remedy of a dismissal in this case given that only one costs award is  
outstanding and the costs in issue are owed to a non-party. Further, the Plaintiff was allowed to  
bring a motion for leave to appeal with respect to this costs award and the motion is still pending.  
4.  
Dismissal based on the Plaintiff’s failure to attend an examination for  
discovery  
[73] Under Rule 34.15(1)(b) of the Rules of Civil Procedure, where a plaintiff fails to attend an  
examination for discovery, the court may dismiss the plaintiff’s action. However, it is rare that a  
dismissal order is made and, typically, the plaintiff is given a further opportunity to comply with  
their obligations, i.e. the plaintiff is ordered to attend an examination. The dismissal of a  
proceeding is regarded as draconian, and courts are reluctant to dismiss a potentially meritorious  
claim on grounds that do not address its merits. This sanction is reserved for the most extreme  
cases where the delinquent party has been contumacious or has deliberately flouted the law, and  
the other party can demonstrate that their ability to prosecute or defend the claim would be  
prejudiced by the delinquent party being ordered to reattend to be examined. See Gomommy  
Software.com Inc. v. Blackmont Capital Inc., 2014 ONSC 2478 at paras. 1-2, 50-52, 62 (Div. Ct.).  
[74] The discretion to strike a pleading should be exercised as a last resort where warranted in  
order to protect the integrity of the justice system from abuse by a recalcitrant litigant. See  
Starland Contracting Inc. v. 1581518 Ontario Ltd., 2009 30449 at para. 27 (Ont. Div. Ct.).  
[75] In this case, the Plaintiff has suggested that the examination for discovery proceed by way  
of written questions and answers. She relies on the Wong Letter which states that Dr. Wong  
recently [in 2018] assessed the Plaintiff and, given “her persistent symptoms along the low back”,  
he believed that she would not be able to sit through an examination for discovery. The Wong  
Letter further states that “[t]he extensive sitting that would be required would be a hardship for  
Ms. Hordo” and “[i]t would be beneficial if she can provide her testimony in writing.”  
[76] While the Plaintiff has suggested that the examination for discovery proceed by way of  
written questions and answers, Rule 31.02(1) only allows for written questions and answers at the  
option of the examining party: see Mohotoo v Humber River Hospital, 2021 ONSC 4894 at paras.  
33-37. Here, the Defendant does not consent to proceeding in writing and, in my view, its position  
is not unreasonable. In light of the manner in which the Plaintiff has been conducting the litigation  
and preparing written materials, it is my view that proceeding in writing would be inefficient and  
- Page 21 -  
create further delay. Among other things, the Defendant would not have the ability to immediately  
ask follow-up questions in the event of an incomplete or unresponsive answer.  
[77] The evidence relied upon by the Plaintiff in support of her position that she is unable to  
attend an in-person examination for discovery is completely inadequate. In my view, the fact that  
the Plaintiff has failed to provide affidavit evidence about her ability to attend an examination for  
discovery is fatal. As for the Wong Letter dated May 14, 2018, it is both inadmissible and  
insufficient. Dr. Wong did not provide affidavit evidence on which he could have been cross-  
examined by the Defendant. Further, his letter is short, largely unsubstantiated and unsatisfactory  
for the purposes of this motion. The letter was written more than four years ago and there is no  
evidence before me regarding the Plaintiff’s current condition. Moreover, Dr. Wong does not  
specify in his letter the assumptions on which his letter is based (e.g., how many hours did he think  
that the examination would last?) and he does not appear to have considered that accommodation  
could be provided (e.g., frequent breaks, shorter examination periods spread over a few days, etc.).  
[78] The Plaintiff has been aware since at least July 2018 that the Defendant’s position is that  
the Plaintiff has to attend an examination for discovery in person, and that the Wong Letter and  
other medical evidence are insufficient to justify conducting the Plaintiff’s examination for  
discovery in writing. Numerous correspondence has been exchanged on this point over the years,  
and the issue was raised in the motion that was before Master Short and the case conference before  
Justice Pinto. Despite this, the Plaintiff chose not to include any current evidence of her ability to  
attend an examination for discovery in person in her motion materials.  
[79] As stated above, I have held a number of case conferences via videoconference in this case  
in which the Plaintiff participated. The Plaintiff also participated in the hearing of this motion,  
which took place by videoconference. In the absence of any current and admissible medical  
evidence to the contrary, I conclude that the Plaintiff is able to participate in an in-person  
examination for discovery, with appropriate accommodation. Thus, I find that the Plaintiff’s  
refusal to attend an in-person examination for discovery is unjustified.  
[80] However, I am of the view that it is not appropriate at this stage to make an order dismissing  
the action based on the Plaintiff’s failure to attend an examination for discovery. This is the first  
time that the issue of the Plaintiff’s failure to attend an examination for discovery is being  
adjudicated. The motion for similar relief previously brought by the Defendant did not proceed  
before Master Short. Before the instant motion, the Plaintiff’s grounds for not attending an in-  
person examination for discovery had not been ruled on by a judicial officer, and the Plaintiff had  
never been formally ordered to attend an examination for discovery. Further, I find that the  
Defendant has not demonstrated that its ability to defend the claim would be prejudiced by the  
Plaintiff being ordered to attend to be examined. As set out below, the Defendant’s right to move  
to dismiss the action for delay after the examination for discovery is preserved.  
[81] Thus, I am giving the Plaintiff a last chance to comply with her discovery obligations under  
the Rules of Civil Procedure. The relevant terms are set out below. If the Plaintiff fails to comply  
with this “last chance order”, she should expect, in light of the procedural history of this matter,  
that her action will be dismissed in the absence of exceptional circumstances.  
- Page 22 -  
5.  
Dismissal based on delay  
[82] An order dismissing an action for delay is a severe remedy. The plaintiff is denied an  
adjudication on the merits of their claim. Equally, however, an order dismissing an action for  
delay is sometimes the only order that can adequately protect the integrity of the civil justice  
process and prevent an adjudication on the merits that is unfair to a defendant. See Langenecker  
v. Sauvé, 2011 ONCA 803 at para. 3 (“Langenecker”).  
[83] The challenge posed in cases involving dismissal for delay is to find the right balance  
between, on the one hand, the need to ensure that the rules are enforced to ensure timely and  
efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to  
provide a reasonable explanation for failing to comply with the rules to have their disputes decided  
on the merits. See 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para.  
20.  
[84] The power to dismiss an action for delay should not be exercised without giving the  
plaintiff an opportunity to remedy their default, unless the court is satisfied either that: (1) the  
default has been intentional and contumelious, or that (2) the inexcusable delay for which the  
plaintiff or their lawyers have been responsible has been such as to give rise to a substantial risk  
that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a  
result of the delay, the action would come to trial if it were allowed to continue. See Langenecker  
at para. 5.  
[85] The first category of cases (i.e. cases where the default has been intentional and  
contumelious) refers to those cases in which the delay is caused by the intentional conduct of the  
plaintiff or their counsel that demonstrates a disdain or disrespect for the court process. In  
dismissing cases which fall within this category, the court effectively declares that a continuation  
of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s  
process. These cases usually “feature at least one, and usually serial violations of court orders”:  
see Langenecker at para. 6.  
[86] The plaintiff is responsible for moving the action along: see Wallace v. Crate’s Marine  
Sales Ltd., 2014 ONCA 671 at para. 18 (“Wallace”). Any delay in the prosecution of an action  
requires an explanation. The onus rests with the plaintiff to show that the delay was not  
intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed  
that the delay was intentional. See Szpakowsky v Tenenbaum, 2017 ONSC 18 at para. 19  
(“Szpakowsky”), Berg v. Robbins, 2009 85303 at para. 13 (Ont. Div. Ct.) (“Berg”) and  
Francis v Rego, 2015 ONSC 5546 at para. 14 (“Francis”).  
[87] The second category of cases that will justify an order dismissing the action for delay has  
three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a  
substantial risk that a fair trial of the issues in the litigation will not be possible because of the  
delay. The following has been said about these three characteristics:  
a. The inordinance of the delay is measured simply by reference to the length  
of time from the commencement of the proceeding to the motion to dismiss.  
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b. The requirement that the delay be “inexcusable” requires a determination of  
the reasons for the delay and an assessment of whether those reasons afford  
an adequate explanation for the delay. Explanations that are “reasonable  
and cogent” or “sensible and persuasive” will excuse the delay at least to  
the extent that an order dismissing the action would be inappropriate. In  
assessing the explanations offered, the court will consider not only the  
credibility of those explanations and the explanations offered for individual  
parts of the delay, but also the overall delay and the effect of the  
explanations considered as a whole.  
c. The third requirement is directed at the prejudice caused by the delay to the  
defence’s ability to put its case forward for adjudication on the  
merits. Prejudice is inherent in long delays. Memories fade and fail,  
witnesses become unavailable, and documents and other potential exhibits  
are lost. The longer the delay, the stronger the inference of prejudice to the  
defence case flowing from that delay. In addition to the prejudice inherent  
in lengthy delays, a long delay can cause case-specific prejudice. Inordinate  
and inexcusable delay in an action gives rise to a presumption of prejudice  
which the plaintiff has the onus to rebut. It is therefore necessary to  
consider the evidence presented by the plaintiff on the issue of prejudice  
and specifically whether the plaintiff has demonstrated that documents have  
been preserved, and that the issues in dispute do not require the recollection  
of witnesses, or that necessary witnesses are available with detailed  
recollection of events. If the plaintiff rebuts any such presumption of  
prejudice, the onus is on the defendant to adduce convincing evidence of  
actual case specific prejudice resulting from the delay. If the plaintiff fails  
to rebut the presumption there is no need for the defendant to adduce  
evidence of actual prejudice.  
See Langenecker at paras. 6-12, Szpakowsky at paras. 19, 58, Berg at para. 13-15 and Francis at  
para. 35.  
[88] Courts may dismiss actions for delay even when the relevant rules do not mandate it. A  
court has inherent jurisdiction to control its own process, which includes the discretionary power  
to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not  
limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent  
power of the court to prevent an abuse of its own process. See Wallace at paras. 21-22 and  
Szpakowsky at para. 19.  
[89] Turning to the facts of this case, I am of the view that I should not exercise the power to  
dismiss the action for delay at this time, without giving the Plaintiff an opportunity to adduce  
evidence and file submissions that are responsive to the test set out above.  
[90] Among other things, the Plaintiff has not adduced evidence on this motion with respect to  
the delay experienced in this action over the years and any explanation for such delay. For  
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instance, the Plaintiff has not provided any explanation regarding the absence of response to the  
numerous communications from counsel for the Defendant in 2017-2019 regarding the scheduling  
of her examination for discovery. Further, the Plaintiff has failed to adduce evidence to rebut the  
presumption of prejudice based on delay, such as evidence regarding the preservation of  
documents, the availability of witnesses and the quality of their recollection of events.  
[91] The Plaintiff is self-represented and may not have understood that she had the onus to  
explain the delay in this matter, as well as the burden to rebut the presumption of prejudice. While  
the issue of the Plaintiff’s attendance at an examination for discovery in person has been front and  
center in this action for a long time, the issue of delay is not articulated in detail in the Defendant’s  
Notice of Motion. In fact, the list of orders sought in the Notice of Motion does not include a  
separate paragraph asking for the dismissal of the action for delay. Instead, delay is referred to in  
the same paragraph as the paragraph seeking a dismissal of the action based on the Plaintiff’s  
failure to attend an examination for discovery, which is based on a different Rule of Civil  
Procedure. This may have created confusion on the part of the Plaintiff when she prepared her  
responding evidence. I note that the motion brought in 2020 was also focused on the Plaintiff’s  
failure to attend an examination for discovery.  
[92] Based on the foregoing, I find that it would not be appropriate to dismiss this action purely  
based on the absence of evidence and explanation by the Plaintiff. Given the seriousness of the  
relief sought, the Plaintiff should be given the opportunity to provide a substantive response.  
[93] In light of the delay in getting a motion date and my conclusion above that the Plaintiff  
should be ordered to attend an examination for discovery, I conclude that the best course to follow  
in this action is for the examination for discovery to take place first, and to preserve the right of  
the Defendant by adjourning its motion to dismiss the action for delay until after the examination  
for discovery. If the Plaintiff fails to attend an examination for discovery, a motion to dismiss for  
delay may not be necessary as the action may be dismissed on grounds other than delay. If the  
Plaintiff does attend an examination for discovery and the Defendant still wishes to pursue its  
motion to dismiss for delay, a case conference can be held to establish a timetable for the delivery  
of additional materials. The issue of prejudice should be clearer at that time and, based on this  
endorsement, the Plaintiff would then be aware of the kind of evidence that she needs to adduce  
in order to address the applicable legal test.  
[94] As a result, I adjourn the Defendant’s motion to dismiss the action for delay to a case  
conference to be held before me after September 30, 2022, i.e. the deadline set out below for the  
examination for discovery of the Plaintiff to take place.  
D.  
CONCLUSION  
[95] The Defendant’s motion is granted, in part.  
[96] I order the following with respect to the Plaintiff’s examination for discovery:  
a. The Defendant will send to the Plaintiff a list of outstanding documents to be  
produced by July 4, 2022. I note that, contrary to the submissions made at the  
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hearing, the correspondence between the parties reflects that the Plaintiff has served  
an affidavit of documents, but a copy of all Schedule “A” documents may not have  
been provided. Further, given the time that has elapsed since the preparation of the  
affidavit of documents, additional relevant documents may exist.  
b. The Plaintiff is to produce all relevant documents that are in her possession, control  
or power and that have not been already provided to the Defendant by August 26,  
2022. If the Plaintiff has to request documents from third parties, such requests  
should be made as soon as possible so that the documents are obtained by August  
26, 2022. The failure to produce all relevant documents in a timely fashion may  
necessitate multiple attendances by the Plaintiff to complete her examination for  
discovery. Therefore, it is in the interest of the Plaintiff to produce all relevant  
documents as soon as possible.  
c. The parties are to have discussions as soon as possible regarding reasonable  
accommodations to be provided to the Plaintiff during her examination for  
discovery (e.g., frequency of breaks, etc.). If the parties cannot agree, a case  
conference is to be scheduled before me before the end of August 2022 so that I  
can rule on the appropriate accommodations to be provided. Disagreements  
between the parties with respect to accommodations will not justify delaying the  
examination for discovery of the Plaintiff, and the Plaintiff will not be allowed to  
reargue the issues raised on this motion when the issue of accommodations is  
discussed.  
d. The examination for discovery of the Plaintiff is to take place by September 30,  
2022.  
e. If the Plaintiff fails to attend her examination for discovery, the Defendant may  
contact my assistant to request a case conference to schedule a motion to dismiss  
the action.  
[97] The Defendant’s motion to dismiss the action for delay is adjourned to a case conference  
to be held before me after September 30, 2022.  
[98] The balance of the Defendant’s motion is dismissed, without prejudice to the Defendant  
bringing a similar motion at a later date, if the appropriate conditions apply.  
[99]  
If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than  
four pages (double-spaced), excluding the costs outline, within 14 days of the date of this  
decision. The Plaintiff shall deliver her responding submissions (with the same page limit) within  
14 days of her receipt of the Defendant’s submissions. The submissions of all parties shall also be  
sent to my assistant by e-mail and uploaded onto CaseLines.  
[100] The Plaintiff argues in her materials that the Defendant abandoned its motion before Master  
Short, and she complains that the costs of that motion have not been dealt with. The motion that  
was before Master Short was not abandoned. Rather, it was adjourned to the Case Management  
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Judge to be appointed by Justice Myers. Further, the adjournment was in large part due to the  
conduct of the Plaintiff’s father prior to the motion. As set out above, the Defendant was not able  
to proceed with its motion until now, as the issue of the Plaintiff’s representation by her counsel  
had to be dealt with first. Given everything that has occurred since March 2020, new motion  
materials were required so that the Court could have a complete picture of the status of this action.  
However, the relief sought by the Defendant on both motions was substantially the same. If the  
parties cannot agree on costs, I invite them to include submissions regarding the costs of the motion  
before Master Short in their costs submissions (within the page limit indicated above).  
[101] At this stage, however, I am only going to deal with the costs of this motion and the motion  
that was before Master Short. I reject the Defendant’s request to deal with the costs related to the  
various case conferences. These costs are not costs of the motion and they can be addressed as  
part of the costs of the action.  
Vermette J.  
Date: June 20, 2022  


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