RODDY HYLAND v. JAYD EVANS, 2019 NLSC 179

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hyland v. Avis , 2019 NLSC 179 Date : October 09, 2019 Docket : 201101G4910 Between: RODDY HYLAND AND JAYD EVANS Plaintiffs And: NICHOLAS J. G. AVIS First Defendant And: BROWNE FITZGERALD MORGAN & AVIS, A LAW PARTNERSHIP OR ASSOCIATION OF LAWYERS Second Defendant Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: October 2, 2019

Summary: The plaintiffs failed to respond to Court orders requiring production of documents and replies to interrogatories. The defendants asked

the Court to dismiss the proceeding or, in the alternative, order security for costs. Held: The circumstances did not warrant dismissal ofthe proceeding. Security for costs in the amount of $5,000 was ordered. Appearances: Robert W. Buckingham Appearing on behalf of the Plaintiffs F. Richard Gosse Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Jenkins v. Short (1998), (NL SC), 161 Nfld. & P.E.I.R. 283, 497 A.P.R. 283 (Nfld. S.C.(T.D.)); RULES CONSIDERED: Rules of the Supreme Court, 1986, SNL 1986, c. 42, Sch. D.

REASONS FOR JUDGMENT Orsborn, J.: INTRODUCTION [1] On March 22, 2007, the plaintiffs, residents of the United Kingdom, purchased Lot 11 of the Timberland Golf Resort inPasadena, NL. With the plaintiffs’ consent, the defendant solicitors acted for both vendor and purchaser.

Following the closing of thetransaction, the plaintiffs commenced this proceeding against their solicitors, asserting non-disclosure of an issue relating to thedevelopment in question. [2] The defendants have now applied for an order dismissing the proceeding on the grounds that the plaintiffs have failed tocomply with Court orders concerning production of documents and replies to interrogatories. [3] Alternatively, the defendants seek security for costs. ISSUES [4] Should the proceeding be dismissed? If not, should security for costs be ordered?

DISCUSSION [5] Following the close of pleadings, the parties exchanged lists of documents. [6] On January 14, 2016, over four years after the commencement of the claim, I ordered that the plaintiffs provide by February12, 2016 specifics of their seven categories of claims for financial loss. That has not been done. [7] On February 26, 2019, Marshall J., on consent, ordered the filing within 60 days of further documentation including allrecords relating to the damages sought and an order that the plaintiffs reply to interrogatories served one year previously.

Again, nothinghas been done in response to that order. [8] Pursuant to the Rules of the Supreme Court, 1986, SNL 1986, c. 42, Sch. D, if a plaintiff fails to produce documents that theplaintiff is bound to produce or fails to comply with an order to respond to interrogatories, the Court may dismiss the proceeding or grantsuch other order as the Court considers just. See r. 30.14(2), r. 31.05, and r. 32.10. [9] Counsel for the plaintiffs advised that he has been unable for some time to obtain instructions from his clients.

Notwithstanding that the plaintiffs were provided with notice of this present application, no response has been forthcoming and noinstructions given to counsel. Counsel advised that he is presently preparing an application to withdraw as counsel. [10] The defendants wish this matter to come to an end. They point to the passage of eight years since commencement of the actionand, in particular, to the plaintiffs’ non-compliance with specific Court orders with specific time limits for compliance.

[11] As Hickman C.J.T.D. pointed out in Jenkins v. Short (1998), (NL SC), 161 Nfld. & P.E.I.R. 283, 497A.P.R. 283 (Nfld. S.C. (T.D.)), courts are reluctant to dismiss a claim for non-compliance with the rules of court or with a court order ofa procedural nature.

He said, at paragraph 20: 20 I conclude that whether it be an application to dismiss a statement of claim or strike a defence because of the failure of a litigant toattend for examination when properly requested so to do in accordance with the rules of court or a court order, the Court must be satisfiedthat the conduct of the dilatory party constitutes contumacious behaviour before it will issue an order striking a pleading which has theeffect of denying a party access to the court.

It must be shown that the person who has failed to comply with the rules or a court order hasbeen wilfully disobedient or in wanton disregard of his obligations as a litigant before the court. [12] While repeated non-compliance with court orders related to matters of procedure may warrant serious consideration ofdismissal, I am not satisfied that the evidence before me supports a conclusion that the conduct of the plaintiffs has been contumacious –‘stubbornly perverse, insubordinate, or rebellious’ (see paragraph 17 of Jenkins). [13] The plaintiffs reside in the United Kingdom.

Some allowance should be made for the distance between client and counsel, although I take judicial notice of the availability of virtually instantaneous communication in today’s world. In the circumstances, it is difficult to describe the inaction asstubbornly perverse or demonstrating a wanton disregard for orders of the Court. I am not prepared to dismiss the claim. [14] In the alternative, the defendants seek an order for security for costs under Rule 21: 21.01.

The Court may order security for costs to be given in a proceeding whenever it deems it just, and without limiting the generalityof the foregoing, it may order security to be given where (

a) a plaintiff resides out of the jurisdiction; … [15] Counsel for the plaintiffs points out that, although his clients reside in the United Kingdom, they nonetheless have property inthis jurisdiction that could be used to satisfy any later award of costs. He points to the property purchased in 2007, the purchase of whichis the subject of this proceeding. There is no evidence before me on the present market value of this property.

I note also that includedin the numerous claims for damages is a claim for “Loss of Value in the purchase price from Timberland Golf Resort in the amount of$106,250.00” (Amended Statement of Claim, paragraph 32(ii)). This is the entire purchase price of the property. Such a claim suggeststhat, at least in the plaintiffs’ opinion, the property has no value. [16] The plaintiffs reside out of the jurisdiction; there is no evidence of the present value of the property in the jurisdiction; theplaintiffs have failed to comply with Court orders with fixed time compliance.

There is no evidence of impecuniosity or othercircumstances that could suggest that an order for security for costs would not be an appropriate exercise of discretion. In thecircumstances, I consider it just to exercise my discretion to order that the plaintiffs provide security for costs. [17] Counsel agreed that a trial would last from three to five days.

The normal practice in this jurisdiction is to provide security fortwo-thirds of the anticipated party and party (Column 3) costs yet to be incurred. [18] I was not provided with a draft bill of anticipated costs, and accordingly any amount I set will be the product of a certain degreeof arbitrariness. [19] I consider $5,000 an appropriate amount to be provided by way of security for costs, such amount based on the application ofthe Scale of Costs – Column 3 – to a four-day trial and all related pre-trial preparation and attendances.

A reasonable time within whichto provide this security should be set. [20] The amount should be provided by way of cash deposit or equivalent acceptable to the Court. [21] I draw the parties’ attention to Rule 21.02: 21.02.

(1) Security for costs shall be given in such manner, at such time, and on such terms, if any, as are provided in an order of theCourt.

(2) Where security for costs is ordered, the proceeding shall be stayed upon service of the order until the security is given.

(3) Upon default in giving security, the proceeding may, on an ex parte application, be dismissed with costs.

(4) The amount of security may be increased or diminished from time to time by the Court.

CONCLUSION [ 22 ] It is ordered that: 1) On or before December 19, 2019, the plaintiffs deposit with the Court as security for costs the sum of $5,000 by way of certified cheque, bank draft, or similar instrument acceptable to the Court; and 2) The defendants are entitled to their taxed costs of this application – Column 3. _____________________________ David B. Orsborn Justice