DATE: 20040227

DOCKET:C39888

COURT OF APPEAL FOR ONTARIO

RE: JOHN SUSIN (Plaintiff/Appellant) – and BAKER and BAKER and MANG & STEINBERG (Defendants/Respondents)

BEFORE: WEILER, SHARPE and BLAIR JJ.A.

COUNSEL: John Susin in person

A.J. Esterbauer and D.S. Wilson for the defendants/ respondents

HEARD: February 25, 2004

RELEASED ORALLY: February 25, 2004

On appeal from the order of Justice Joseph R. Henderson of the Superior Court of Justice dated March 18, 2003.

E N D O R S E M E N T

[1] Mr. Susin appeals from the order of Henderson J. dated March 18, 2003 dismissing this action for delay pursuant to rule 24.01(1). He argues:

(a) that the motions judge lacked jurisdiction to make such an order under rule 24.01 because the defendants are in default of the order of Webber J. dated November 7, 1996;

(b) that it is the defendants and not him who are responsible for the delays in the action and;

(a) that the defendants did not meet the onus of establishing prejudice to them if the action were to proceed to trial.

[2] We do not accept the submission that the defendants were in default and therefore that the motions judge lacked jurisdiction to make the order. Justice Webber ordered that Mr. Susin’s examination was to commence on January 9, 1997 and that “the examination of all parties shall continue until completed”. Mr. Susin’s examination did commence on that date and the examination was subsequently adjourned pending his response to certain undertakings. Two years later, some responses were given to the undertakings. Mr. Susin then wrote to counsel for the defendants asking for available dates for their examinations. He received no response. Mr. Susin did not make any further requests for discovery dates, nor did he take any steps to compel attendance, as the Rules of Practice permit. Three years later, the defendants moved to dismiss this action for delay.

[3] It should be noted that this is the third action of Mr. Susin that has been dismissed for delay. His first action was commenced in 1962 against a supplier of pipe in relation to a 1956 construction contract. That action was dismissed for delay in January 1967. Mr. Susin did nothing for more than a decade. He then commenced his second action in 1983 against his lawyer on the first action, alleging negligence in the prosecution of that action. The defendants Mang & Baker were retained by Mr. Susin on the second action. Mr. Mang’s retainer lasted about a year and there is an issue whether Mr. Baker was retained to do anything but attempt to negotiate a settlement (which was unsuccessful). In any event, the second action proceeded slowly and on April 2, 1987, it too was dismissed for delay. Mr. Susin was advised immediately.

[4] Four years later, on March 31, 1993, he commenced this present action, again alleging negligence in the conduct of the lawsuit, this time on the part of Mr. Mang and Baker. This lawsuit also proceeded slowly. The order of Justice Webber arose from a motion by the defendants to compel Mr. Susin to attend on discovery.

[5] The question of whether the defendants were in default of that order must be viewed in the context of the foregoing history. The defendants assert that even though Mr. Susin provided some answers to undertakings in 1999, the answers were not complete. In all the circumstances, we are not prepared to say that the defendants were in breach of Webber J.’s order by not responding to Mr. Susin’s requests for dates, although it may have been courteous for them to have done so. Mr. Susin had remedies available to him to compel attendance, but he did not take any steps to do so.

[6] In any event, even if the defendants were in breach of the order of Webber J., it was not a serious enough breach to trigger the jurisdictional impediment of rule 24.01(1): see Frank Stollery Ltd. v. Toronto Electric Commissioners (1999), O.J. No. 2354 (C.A.).

[7] Moreover, even if the action could not be dismissed under r. 24.01(1), given all of the circumstances, it could properly be dismissed as an abuse of the court’s process: see Convay v. Marsulex Inc., [2002] O.J. No 4655 (C.A.).

[8] Finally, there was ample evidence in the record to justify the motion judge’s findings that Mr. Susin was responsible for the delays in the prosecution of the action, that there was no justifiable excuse for the delays and that the defendants have suffered prejudice from the delay. It is inescapable that if this action were to proceed to trial, it would involve re-examining facts that occurred as long ago as 1956. Memories fade. We agree with and adopt the conclusion of the motion judge in paras. 27, 28 and 29 of his reasons in this regard.

[9] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“R.J. Sharpe J.A.”

“R.A. Blair J.A.”