Nissar v. Toronto Transit Commission, 2013 ONCA 361

Nissar v. The Toronto Transit Commission

[Indexed as: Nissar v. Toronto Transit Commission]

Ontario Reports

Court of Appeal for Ontario,

Blair, Rouleau and Tulloch JJ.A.

June 4, 2013

115 O.R. (3d) 713 | 2013 ONCA 361

Case Summary

Civil procedure — Restoring action to trial list — Plaintiff who seeks to restore action to trial list required to demonstrate that there is acceptable explanation for delay and that defendant would suffer no non-compensable prejudice if action allowed to proceed — Motion judge correctly refusing to restore action to trial list where plaintiff offered no explanation for seven-year delay in bringing motion and where there was actual non-compensable prejudice to defendant.

Seven years after her action for damages for personal injuries was struck from the trial list, the plaintiff brought a motion to restore the action to the trial list. The motion was dismissed. The plaintiff appealed.

Held, the appeal should be dismissed.

A plaintiff who seeks to restore an action to the trial list bears the burden of demonstrating that there is an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice. The motion judge was unsatisfied with the lack of an explanation for the seven-year delay in bringing the motion, and found that there [page714] would be real, non-compensable prejudice to the defendant if the action was allowed to proceed. The motion judge did not err in dismissing the motion.

Faris v. Eftimovski, [2013] O.J. No. 2551, 2013 ONCA 360, consd

Other cases referred to

1196158 Ontario Inc. v. 6274013 Canada Ltd. (2012), 112 O.R. (3d) 67, [2012] O.J. No. 3877, 2012 ONCA 544, 295 O.A.C. 244, 353 D.L.R. (4th) 129, 220 A.C.W.S. (3d) 533; 1351428 Ontario Ltd. (c.o.b. The Wineyard) v. 1037598 Ontario Ltd., [2011] O.J. No. 3597, 2011 ONSC 4767 (S.C.J.); Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055, 213 O.A.C. 229, 28 C.P.C. (6th) 12, 148 A.C.W.S. (3d) 229 (C.A.); Chiang (Re) (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, 78 C.P.C. (6th) 110, 305 D.L.R. (4th) 655, 49 C.B.R. (5th) 1, 257 O.A.C. 64, 174 A.C.W.S. (3d) 105; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; Ruggiero v. FN Corp., [2011] O.J. No. 2732, 2011 ONSC 3212 (S.C.J. - Master); Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, 262 O.A.C. 349, 90 C.P.C. (6th) 101; Williams v. John Doe, [2012] O.J. No. 1822, 2012 ONSC 2514 (S.C.J.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 24, 24.01, 48, 48.11, 48.14(13)

Authorities referred to

Archibald, Todd, Gordon Killeen and James C. Morton, Ontario Superior Court Practice (Markham, Ont.: LexisNexis Canada, 2011)

APPEAL from the order of Belobaba J. of the Superior Court of Justice on March 12, 2012 dismissing a motion for an order restoring an action to the trial list.

William G. Scott, for appellant's lawyer Christopher Bialkowski.

Norma Priday, for respondent Toronto Transit Commission.

The judgment of the court was delivered by

TULLOCH J.A.: —

A. Overview

[1]

Overview

This appeal concerns an action initiated in 2001 in relation to a March 2, 1999 accident involving a Toronto Transit Commission ("TTC") bus and another vehicle. The appellant was a passenger on the bus and, shortly after, retained her first lawyer to sue for the alleged injuries she sustained when the bus came to a sudden stop.

2As I will outline below, the action has been plagued by significant delay. For the reasons that follow, I am not convinced [page715] that the motion judge erred by refusing to restore the action to the trial list. I would therefore dismiss the appeal.

B. Background

(1) Chronology of the action

[3]

Background

On March 1, 2001, two years less one day after the appellant's accident, her first lawyer issued a notice of action in this matter. There is some dispute between the parties whether the statement of claim was properly issued or served on the TTC.

4In November 2001, the TTC delivered a statement of defence and alleged that the accident was caused by the negligence of the driver of an unidentified vehicle that had improperly cut off the bus.

5In April of 2002, the appellant and the driver of the TTC bus, Phillips, were examined for discovery. The transcripts of the driver's examination were never ordered.

6In June 2002, counsel for the TTC arranged for a medical examination of the appellant. One month later, in July 2002, the parties attempted to mediate the matter. However, counsel for the TTC refused to proceed due to the failure of the appellant and her first lawyer to answer undertakings given on the examination for discovery in April 2002.

7In October 2003, the TTC arranged for a second medical examination of the appellant.

8In November 2004, the appellant's first lawyer served a trial record on the TTC and set the matter down for trial.

9Unbeknownst to the respondent at the time, the matter was struck off the trial list by a judge in April 2005.

10Nothing happened with the case until December 2005, when the parties made a second attempt to mediate the case. Again, the mediation failed for the same reason as the first mediation.

11In May 2006, the appellant's second lawyer, prior to serving a notice of change of solicitor, arranged for another mediation. That mediation failed for the same reason as the first and second mediation.

12In February 2007, the appellant's second lawyer served a notice of change of solicitor on the TTC. She attempted to settle the matter again by mediation. Once again, the attempt failed because of the appellant's failure to answer undertakings. Over the next year, the appellant's second lawyer attempted mediation a further two times. Counsel for the TTC refused on the basis of failure of the appellant and her [page716] counsel to answer undertakings given during her 2002 examination for discovery.

13At some point prior to October 2009, the appellant retained her third lawyer. In that same month, the appellant's third lawyer served a notice of change of solicitor on the TTC. He requested a list of the undertakings outstanding from the 2002 examination for discovery.

14In December 2010, the appellant's third lawyer suggested mediation again. In this correspondence, the appellant's third lawyer advised counsel for the TTC that no transcript of Phillip's testimony was ever ordered and that the original tapes have been destroyed due to the passage of time and because no party ever requested that they be transcribed. The appellant's third lawyer requested that the TTC produce Phillips again for an examination for discovery. Counsel for the TTC refused to do so.

15The appellant's third lawyer brought a motion for an order that Phillips re-attend for a further examination for discovery and that the action be restored to the trial list. The motion was returnable June 16, 2011. Since the action was struck off the trial list by a judge, the motion to restore the action was required to be heard by a judge. To that end, the motion was adjourned to March 2012.

(2) Decision of the motion judge

[16]

Decision of the motion judge

The motion judge dismissed the motion to restore the action to the trial list. In a short set of reasons, the motion judge found there was no explanation in the evidence for why it had taken seven years to bring a motion to restore the action to the trial list. He held that, on any reasonable formulation, the test to restore an action to the trial list would not have been met on the record before him.

17In addition, the motion judge found actual prejudice to the defendant in two respects. First, the appellant's OHIP pre-accident medical records were unavailable. Second, Phillips may not remember the details of an accident from 13 years earlier and there was no evidence on Phillips' ability to remember or his current health status.

18The motion judge concluded that it would be fundamentally unfair to the defendant to allow the action to proceed. In any event, the appellant would have a remedy in the form of a negligence action against her two former lawyers. In the result, he dismissed the appellant's motion to restore the action to the trial list. [page717]

C. Discussion

(1) Submissions of the parties

[19]

Discussion

The appellant submits that the motion judge erred by not applying the test to restore an action to the trial list as articulated in Ruggiero v. FN Corp., [2011] O.J. No. 2732, 2011 ONSC 3212 (S.C.J. - Master). At para. 20 of Ruggiero, this test was articulated by the master as:

1. Is the delay intentional and contumelious?

2. If not, is there an inordinate and inexcusable delay in the litigation for which the plaintiff or his solicitors are responsible, such as would give rise to a presumption of prejudice?

3. If so, has the plaintiff provided evidence to rebut the presumption of prejudice arising from the delays?

4. If so, have the defendants provided evidence of actual prejudice?

20The master reasoned by analogy from this court's decision in Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055, 213 O.A.C. 229 (C.A.) to formulate the above test. In Armstrong, the court was entertaining an appeal from a decision on a rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 motion brought by a defendant to dismiss a plaintiff's action for delay.

21The appellant submits that, had the motion judge applied the correct test, he would have granted the motion and ordered that the appellant's action be restored to the trial list.

22The respondent agrees that the jurisprudence relating to Rule 48 and not Rule 24 ought to govern a court's discretion whether to restore an action to the trial list. The respondent submits, however, that regardless of the test applied, the motion judge was correct in refusing to restore the action to the trial list.

(2) The test to restore an action to the trial list pursuant to rule 48.11

[23]

The test to restore an action to the trial list pursuant to rule 48.11

In an appeal released contemporaneously with the case at bar, Faris v. Eftimovski, [2013] O.J. No. 2551, 2013 ONCA 360, I analyzed the provisions of the Rules of Civil Procedure concerning the procedures by which an action could be dismissed for delay.

24Faris was an appeal from a judge's decision to dismiss an action for delay after a status hearing pursuant to rule 48.14(13) of the Rules of Civil Procedure.

25In Faris, I noted that Rule 48 provides a mechanism enabling the court to control the pace of litigation and ensure that [page718] disputes are resolved efficiently. A rule 24.01 motion, on the other hand, enables a defendant, who has complied with the rules, to take a deliberate procedural step to dismiss an action where the plaintiff has been delinquent in a manner enumerated under that rule.

26For the reasons I gave in Faris, a court should treat as distinct a defendant's motion to dismiss for delay under Rule 24 from those procedures made available to the court under Rule 48. Like a status hearing, the requirement that leave be obtained to restore an action to the trial list under rule 48.11 is simply another weapon in the Rule 48 judicial arsenal "to promote the timely resolution of disputes, to discourage delay in civil litigation and to give the courts a significant role in reducing delays": Todd Archibald, Gordon Killeen and James C. Morton, Ontario Superior Court Practice (Markham, Ont.: LexisNexis Canada, 2011), at p. 1205.

27In Ruggiero, Master Graham noted that there was a dearth of authority with respect to the test that should be applied on a motion seeking leave to restore an action to the trial list. He reasoned by analogy that the plaintiff was in the same position as if the defendants had moved to dismiss the action for delay. Therefore, the master adopted the test set out in Armstrong v. McCall, supra, a decision concerning a rule 24.01 motion to dismiss.

28This test has been followed in subsequent decisions: see Williams v. John Doe, [2012] O.J. No. 1822, 2012 ONSC 2514 (S.C.J.) and 1351428 Ontario Ltd. (c.o.b. The Wineyard) v. 1037598 Ontario Ltd., [2011] O.J. No. 3597, 2011 ONSC 4767 (S.C.J.).

29However, for the sake of consistency and for the reasons I gave in Faris, I would instead adapt those factors informing the rule 48.14(13) test recently confirmed by this court in 1196158 Ontario Inc. v. 6274013 Canada Ltd. (2012), 112 O.R. (3d) 67, [2012] O.J. No. 3877, 2012 ONCA 544 to determine when an action should be restored to the trial list.

30In my view, it is preferable to place the onus on a plaintiff to explain the delay and satisfy the court that it would not be unfairly prejudicial for the defendant to have the action restored to the trial list. This court has held that it is the plaintiff's responsibility to move the action forward and prosecute the matter as diligently as possible: see Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, at para. 48.

31Therefore, the applicable test is conjunctive: a plaintiff bears the burden of demonstrating that there is an acceptable [page719] explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

(3) Application to the case at bar

[32]

Application to the case at bar

The motion judge expressed the view that, no matter how the test to restore an action to the trial list was formulated, the appellant's motion should be dismissed. He made it clear that he was unsatisfied with the lack of an explanation for why it took seven years to bring a motion to restore the action to the trial list.

33I agree with his conclusion: the conduct of the appellant's first and second lawyers delayed any real progress in this action. It is regrettable, therefore, that the appellant's third lawyer entered on the scene at such a late stage of the proceedings. It is my understanding that he has made an appreciable effort to turn the appellant's fortunes around and has initiated an action sounding in negligence against the appellant's two former lawyers alleging mismanagement of her case.

34With respect to the issue of prejudice, the motion judge found real and actual non-compensable prejudice. The appellant's OHIP records are only available from 1997. Understandably, records going back further would be required to objectively assess the appellant's health status before and after the accident. Further, it is likely that some relevant doctors' records would no longer be available. The transcript of Phillips' examination for discovery, conducted in 2002, was never ordered by the appellant's first or second lawyer. Having never been ordered, the recording has since been destroyed and is similarly unavailable.

35Phillips could not be expected to recall these events in any great detail. As this court stated in Wellwood, at para. 72: since "the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns".

36In my view, it would be unfair to force the respondent to deal with this matter after such inordinate delay and on such an incomplete record. The respondent has, in the words of Sharpe J.A. in 1196158 Ontario Inc., at para. 44, been kept in a state of having the "claim hanging over its head in a kind of perpetual limbo".

(4) The appellant's motions to adduce fresh evidence

[37]

The appellant's motions to adduce fresh evidence

Before this court, the appellant brought two motions to introduce fresh evidence on appeal. On the first motion, the [page720] appellant sought to submit an affidavit of her third lawyer to which she attached her decoded OHIP treatment summary from April 1997 to June 2010. The second motion concerns the affidavit evidence of a solicitor who alleges that she met with Phillips, the retired TTC bus driver, to discuss the accident that occurred in 1999. In her affidavit, the solicitor deposes that Phillips "recalls the incident".

38I would deny the motions to adduce fresh evidence. There is no dispute that the test to receive fresh evidence in this court was established by the Supreme Court in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. As a general rule, evidence should not be admitted in civil cases if it could have been adduced in the court below. Furthermore, the appellant's proposed fresh evidence must be relevant, credible and sufficiently cogent such that, if believed, it could reasonably be expected to have affected the result reached by the motion judge.

39Again, the motion judge found unacceptable delay in this action and that there would be extreme prejudice to the defendant if the action were allowed to proceed and restored to the trial list. Assuming without deciding that the proposed fresh evidence is relevant, credible and that due diligence was exercised on the part of the appellant, I am not convinced that the motion judge's decision to dismiss the action would have been different if he had had the benefit of the OHIP summaries or Phillips' assertion that he had some recollection of the incident. After all, whether the fresh evidence could be expected to have affected the result in the court below is a necessary condition of its admission on appeal: see Chiang (Re) (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at para. 78.

D. Disposition

[40]

Disposition

In the result, I would dismiss the appeal.

41Costs are fixed at $8,900 to the respondents, inclusive of all applicable taxes and disbursements.