COURT OF APPEAL FOR ONTARIO

CITATION: Spendiff v. Schmiedl, 2013 ONCA 120

DATE: 20130225

DOCKET: C56011

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Jan Kelly Spendiff and Rodney James Spendiff

Appellants

and

Janet Frances Schmiedl, Keith Sinclair Schmiedl and Philip J. McInerney carrying on business as Castlerock Professional Home Inspections

Respondents

Taylor B. Robertson, for the appellants

J. Ross MacFarlane, for the respondents, Janet Frances Schmiedl and Keith Sinclair Schmiedl

Jay Stolberg, for the respondent Castlerock Professional Home Inspections

Heard: February 20, 2013

On appeal from the order of Justice J.R. Henderson of the Superior Court of Justice, dated August 13, 2012, with reasons reported at 2012 ONSC 4663.

ENDORSEMENT

Introduction

[1] The record in this case discloses that the appellants were not ready for trial when they set the action down for trial on March 19, 2010; nor were they ready when their action was struck from the trial list on May 10, 2011. Their case was struck from the trial list, on the fourth appearance in assignment court, with the following endorsement: “Matter is not ready for trial and thus is struck from the list”. The appellants did not restore it to the trial list within 180 days as required by Rule 48.14 (2).

[2] Rule 48.14(13) provides that “at the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay”. The status hearing judge, under Rule 48.14(13)(i), found that the appellants did not offer any reasonable explanation for the delay in either the four year period between discoveries and obtaining a 1 page report, or the 180 day period after it was struck from the list. The appellants appeal the order.

The appellants’ position

[3] The appellants allege that the hearing judge made two errors in reaching his decision. First, they submit that the hearing judge should have focused only on why the action was not restored to the trial list after being struck; that is the 180 day period. Second, they contend that in deciding that there was no explanation by the appellants for the delay, the hearing judge made palpable and overriding errors.

[4] In connection with both issues, the appellants argue that the hearing judge misapprehended material portions of the evidence, which they say actually demonstrate that they were moving the case forward.

[5] In addition, they argue that the hearing judge did not consider the respondents’ conduct. This included the respondents’ failure to take issue with any of the delays prior to the action being struck from the trial list and a December 6, 2011 letter, indicating the respondent Castlerock’s desire to inspect the property and creating the impression that the action was not ready for trial.

[6] We disagree with both grounds of appeal.

(1) The period to consider

[7] The court, in cases involving dismissal for delay, will balance the need to enforce the rules to ensure timely and efficient justice, with sufficient flexibility to allow parties to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits: see, 1196158 Ontario v. 6274013 Canada Ltd., 2012 ONCA 544, at para. 20. The hearing judge in this case engaged in this balancing test.

[8] While the conduct of a defendant may be relevant in dismissal for delay cases, the overall focus of an inquiry under Rule 48.14 is the conduct of the plaintiff, and there is nothing in the rule that limits consideration for delay to the 180 day time period. The hearing judge specifically addressed this issue and correctly, in our view, decided that it was open to him to consider the entire history of delay: see again, 1196158 Ontario, at para. 25. We think this is particularly the case where the action is struck from the trial list because it was not ready for trial. Furthermore, in doing so he considered the respondents’ conduct.

[9] The appellants also argue that Rule 48.14(2) is a ''saving provision" which provides an additional 90 days for a plaintiff to restore an action to the trial list. They say that they were ready to set the action down for trial within 90 days after receipt of the status notice from the registrar and ask this court to infer that the reason they did not do so was because the December 6, 2011 letter from the Castlerock respondent "created the impression that the action was not ready for trial because the defendant wanted to conduct an inspection".

[10] As the respondents point out, the essence of the appellants’ argument is that the hearing judge should have concluded they were not ready for trial within the 90-day period, but that they had an excuse and that this should relieve the appellants of all prior delays in the action. In rejecting this argument, the hearing judge noted that 180 days had already passed when the appellants invited the respondents to conduct the inspection. In any case, the hearing judge was correct, as the appellants concede, in finding that the letter does not explain the delay during the 180-day period.

[11] Without addressing the doubtful merits of the appellants’ interpretation of the purpose of the 90 day period, there is simply no evidence that they intended to bring a motion to restore the action to the trial list within the 90 days, just as the hearing judge found.

(2) Palpable and overriding errors

[12] The hearing judge, several times in his reasons, found that “no reasonable explanation was offered for the appellants’ failure to move the case forward while it lingered on the trial list”; nor was there any “acceptable explanation for the plaintiffs’ failure to restore this action to the trial list within 180 days”.

[13] The appellants’ real argument here is that the hearing judge misapprehended material portions of the evidence. In particular, they point to the many and various “reports” that they were obtaining throughout in connection with the costs of repair and demolition. This, they say, was moving the case forward by gathering evidence.

[14] We disagree with the submission that the hearing judge misapprehended the evidence. The evidence that the hearing judge considered consisted of affidavits from the appellants and the respondents. That evidence was properly and fairly considered by him and amply supported his conclusions. The alleged palpable and overriding errors now made by the appellants, or any misapprehension of evidence, are simply not present.

[15] The difficulty the appellants are faced with in their arguments on this appeal is that the hearing judge considered the evidence in assessing, as the appellants contended, that they were ready for trial. On this appeal the appellants ask this court to assess the same evidence to infer that they were not ready for trial because an inspection had not occurred. That approach is not a fair or proper basis upon which to challenge the hearing judge’s findings.

[16] The appellants have failed to demonstrate that the hearing judge made any errors in his assessment of the evidence or that he made any palpable and overriding errors in his findings of fact.

Conclusion

[17] In sum, the status hearing judge’s decision to dismiss the appellants’ action for delay is discretionary and entitled to deference by this court. The appellants have failed to demonstrate any error of law or fact, which would allow this court to interfere with the exercise of that discretion. The appeal is dismissed and each of the respondents, Castlerock and the Schmiedls are awarded costs of the appeal fixed in the amount of $5,000 inclusive of disbursements and HST. For clarity, the aggregate costs award is $10,000.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”