SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: MING KOW LAI V. OLIVER WILLIAMS, CHRIS ANAMOULIDIS AND RNE HOLDINGS (ALSO KNOWN AS PARK N FLY)
BEFORE: Justice Then
COUNSEL: William G. Scott, for the Plaintiff
A. Mancuso, for the Defendants
HEARD: November 10, 2005
E N D O R S E M E N T
1The Plaintiff appeals from the order of Master Haberman dated the 26th day of November 2004 which dismissed the Plaintiff’s motion to set aside the dismissal of this action by the Registrar pursuant to rule 77.08 of the Rules of Civil Procedure.
2The Master’s endorsement reads in part as follows:
"The delay in taking any positive steps to deal with this dismissal was, in my view, inordinate and, as it remains unexplained, I am unable to say that it is excusable. There is no reference to solicitor’s negligence or inadvertence and it remains unclear why the plaintiff, herself, appears to have done nothing upon receipt of the dismissal order. There is also evidence of prejudice. On the basis of the above history of this action and the evidentiary record before me and on the basis of Kassam v. Sitzer 2004 W1 1802512; Labricciosa v. Carter, 2004 WL 2050698 and Hudon v. Colliers Macaulay Nicholls Inc. 11 C.P.C. (5th) 258, I am therefore bound to dismiss this action."
3The Master properly reached this conclusion on the basis of the material before her as the Plaintiff’s solicitor did not offer any reasonable explanation and in particular did not seek to explain either his negligence or inadvertence nor why nothing was done for seven months after the Plaintiff’s solicitor was advised by the Defendants’ solicitor that the action had been dismissed by the Registrar.
4However, the affidavit of the Plaintiff’s solicitor which was not available to the Master makes it abundantly clear that the delay is entirely due to the negligence and inadvertence of the solicitor. Without detailing all of the background facts it will be sufficient to reproduce the following paragraphs of the solicitor’s affidavit which has been tendered before me with the consent of the Defendant:
On or about April 13, 2004, I received a Notice of Intent to Defend from Bell Temple on behalf of the defendant, RNE Holdings.
On or about April 16, 2004, I received correspondence from Bell Temple advising that the action had been dismissed by the Registrar on March 22, 2004 and that the time for serving the Statement of Claim on Williams had expired. Through inadvertence and mistake, I overlooked the contents of this letter and did not immediately act on it. More particularly, I failed to instruct the associate who I had asked to bring the motion to extend the time for service of the Statement of Claim to also bring a motion to set aside the administrative dismissal of this action.
This action came up in my diary system for May 1, 2004. Again through inadvertence I failed to follow up with my associate to determine the status of the motion to extend the time for service of the Statement of Claim.
On October 8, 2004, the associate to whom I had delegated the task of bringing the motion to extend the time for service of the Statement of Claim and for an Order for substitutional service of Williams gave a memo to an articling student in our office advising that he had not been able to get to the file and asked the student to draft and appear on the motion for the extension of time for service and substitutional service of the Statement of Claim.
Through inadvertence and attention to other matters, I had failed to follow up with the associate to ensure that he was bringing the requested motion.
It was not until the end of October, 2004 at the time when the student was preparing the motion material for the extension of time for service of the Statement of Claim and for substitutional service on Williams that I, for the first time, actually realized that the action had been dismissed by the Registrar. At that time, I instructed that a motion also be brought to set aside the Registrar’s dismissal. In support of that motion, I swore the Affidavit of November 11, 2004.
I received and reviewed the Responding Motion Record of the solicitors for Williams and RNE Holdings (a.k.a. Park N Fly). I did not cross-examine on this Affidavit nor file a Responding Affidavit for the following reasons:
RNE Holdings (a.k.a. Park N Fly), the owner of the Williams vehicle had been properly served with the Statement of Claim. The motor vehicle liability insurer of RNE Holdings had notice of the claim at that time consistent with the 2 year limitation period under the Highway Traffic Act and the 6 month period for service of the Statement of Claim. I did not consider that any actual prejudice could arise for that insurer between the date of service of the Statement of Claim and the scheduling of the motion on October 27, 2004 to set aside the Registrar’s dismissal.
I did not believe it necessary to explain what happened in my office between April 16, 2004 and October 27, 2004 as I did not believe that time period to be an inordinate delay.
I did not believe that there could be a finding of actual prejudice given that I had the following documents in my file and was able to provide these documents to counsel for Williams and RNE Holdings:
September 10, 2001 and December 16, 2002 – Motor vehicle accident report and Officer’s notes of Peel Regional Police;
Clinical notes and records of York Central Hospital;
Report of Dr. Michael Yuen dated August 25, 1998;
Clinical notes and records of Markham Stouffville Hospital;
Clinical notes and records of Dr. S.W. Joseph Wong;
Clinical notes and records of Dr. Michael Lam;
Clinical notes and records of Dr. Grace Chua;
Clinical notes and records of Dr. Patricia Chan;
Insurer’s Examination of Dr. Irving Grosfield dated February 15, 2002;
Report of Dr. Jory Griesman dated March 6, 2002;
DAC – Medical & Rehabilitation Summary report of Karen Nasello;
Clinical notes and records of Dr. M.T. Wong;
Decoded OHIP Summary.
5It is common ground that based on Hudon v. Colliers Macaulay Nicholls Ltd., [2001] O.J. No. 1588 (Div. Ct.), the standard of review with respect to a final order of the Master which involves the exercise of discretion is that this court may substitute its own discretion for that of the master with due deference to the Master’s view.
6The appropriate test for setting aside the Registrar’s dismissal of the action pursuant to rule 77.08 is also derived from Hudon v. Colliers, supra. In summary, the court should permit the Registrar’s dismissal to stand only where the default has been intentional and contumelious or where there has been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or where there would be serious prejudice to the Defendant if the action were not dismissed.
7I am satisfied that if the Master had been provided with the sorry litany of negligence and inadvertence which has been provided to me, she would have been satisfied, as I am, that in the circumstances the delay is neither inordinate or inexcusable vis-à-vis the Plaintiff. It is abundantly obvious that the delay is entirely the fault of the Plaintiff’s solicitor as is the adverse result for the Plaintiff that was understandably obtained before the Master.
8In my view while counsel is the agent of the client for many purpose it is appropriate in the circumstances of this case to apply, as did the Court of Appeal in Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 24, the “principle of long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect and inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to security of the legal position he has gained”.
9In my view, it is both appropriate and possible to apply this principle as I am satisfied that the prejudice to the Defendant is not so serious that it threatens a fair trial as no crucial evidence has been lost.
10Accordingly, the dismissal should be set aside as I find on the record before me that the delay was not intentional and contumelious. Also, I find on the fresh evidence before me the delay in bringing the motion to set aside the dismissal was not inordinate and inexcusable. Finally, I find that such delay as there is does not give rise to a substantial risk that a fair trial is not possible nor would there be serious prejudice to the Defendant if the action were not dismissed.
11As the delay in this case and the need for the appeal to this court is entirely due to the negligence and inadvertence of the Plaintiff’s solicitor, this is not an appropriate case for costs to be awarded to the successful party. Moreover, both counsel agree it is appropriate that the Defendant be awarded $1,900 representing costs thrown away. Both parties also agree that the delay should impact on pre-judgment interest although the extent of the impact is disputed.
12The appeal is allowed. An order will go on the following terms:
a) Setting aside the Registrar’s Order dated March 22, 2004 dismissing the action as abandoned.
b) Extending the Case Expiry 6 months from the date of the Order of this Court.
c) Extending the time for service of the Statement of Claim on the Defendants, Oliver Williams and Chris Anamoulidis for 90 days from the date of the Order of this Court.
d) For substituted service of the Statement of Claim upon the Defendant, Oliver Williams by pre-paid ordinary mail at his last known address being 10 Willowridge Road, Apt. 401, Etobicoke, ON M9R 3Y8 and by pre-paid ordinary mail upon the insurer of the Defendant, Oliver Williams, Royal Sun Alliance at Southern Ontario Claims Service Centre, Sheridan Centre, 2225 Erin Mills Parkway, Suite 1000, Mississauga, ON L5K 2S9.
e) For substituted service of the Statement of Claim upon the Defendant, Chris Anamoulidis by pre-paid ordinary mail to his last known address being 433 Horsham Avenue, Willowdale, ON M2R 1H3.
f) There shall be no pre-judgment interest from March 8, 2004 (the date the Statement of Claim was served on the Defendant) to the date of the release of this decision.
13The Plaintiff will pay the Defendant $1,900 for costs thrown away within 30 days of this Order. There shall be no order for costs of this appeal.
Then J.
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