COURT FILE NO.: DC-07-000112-00
DATE: 20080919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. ALEX DONSKOY
Plaintiff
(Appellant)
- and -
TORONTO TRANSIT COMMISSION and TORONTO POLICE SERVICES
Defendants
(Respondents)
D
James C. Morton
for the Plaintiff (Appellant)
Anne Glover and
Kalli Y. Chapman
for the Defendants (Respondents)
HEARD: SEPTEMBER 15, 2008
JANET WILSON J.:
The issue
[1] The Plaintiff appeals from the order of Master Dash dated February 5, 2007 dismissing the action at a status hearing pursuant to rule 48.14(8) of the Rules of Civil Procedure. The plaintiff’s counsel requested a status hearing to avoid the dismissal of the action by the registrar for failure to set the matter down for trial within two years of the filing of the statement of defence.
[2] Rule 48.14(8) provides:
At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and,
(a) if the presiding judge is satisfied that the action should proceed, the judge may set time periods for the completion of the remaining steps necessary to have the action placed on a trial list and may order that it be placed on a trial list within a specified time, or may adjourn the status hearing to a specified date, on such terms as are just; or
(b) if the presiding judge is not satisfied that the action should proceed, the judge may dismiss the action for delay.
[3] As this is a case managed action, the master has jurisdiction pursuant to rule 78 to preside at the status hearing.
Background
[4] On June 6, 2000 the plaintiff was arrested and charged criminally. The defendants alleged that the plaintiff was involved in a scheme involving fraudulent insurance claims advanced against the TTC. On August 25, 2003 the defendants withdrew all criminal charges against the plaintiff. In 2004 in this proceeding Dr. Donskoy sued the defendants for his wrongful arrest.
[5] The only claim outstanding in the action that is not out of time is a claim for damages for breach of the plaintiff’s rights pursuant to the Canadian Charter of Rights and Freedoms. Prior to the dismissal of the action, the defendants had been waiting for the promised particulars of the alleged breaches for an extended period of time. The defendants had not initiated a motion for particulars as plaintiff’s counsel assured them on several occasions that the particulars were forthcoming. The plaintiff was not in any breach of outstanding court orders.
[6] Counsel for the plaintiff suggests that the Master erred by dismissing the claim for lack of particulars at the status hearing without a written motion record. I disagree with counsel’s characterization of what occurred at the status hearing. The claim was dismissed for unexplained, unacceptable delay primarily related to the plaintiff’s failure to provide particulars with respect to the alleged Charter breaches.
Jurisdiction and Standard of Review
[7] This court has jurisdiction to review a final order of the Master, pursuant to section 19 of the Courts of Justice Act. Counsel agree that the standard of review of such a decision on a question of law is that of correctness, whereas a discretionary order, involving a mixed question of fact and law requires a palpable and overriding error to justify intervention. The contextual assessment of whether there is unexplained delay falls in the latter category.
Analysis and conclusions
[8] There is no specific appellate decision dealing with the appropriate criteria to apply in appeals from status hearing orders made pursuant to rule 48.14(8). However, there is some caselaw pursuant to s.48.14(4) which is helpful.
[9] The Ontario Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No 299 (C.A.) considered the test for when a registrar’s order made pursuant to rule 48.14(4) dismissing for delay ought to be set aside. The court considered the four-part test in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 at para. 41 (Ont S.C.J.), rev`d on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.) [Reid]. The Reid factors include whether there was explanation of the litigation delay, inadvertence in missing the deadline, the promptness in bringing the motion to set aside dismissal, and the presence of any prejudice to the defendant. In applying the test, the motion judge required the plaintiff to meet each criteria of the test, and finding only three had been met, he dismissed the motion to set aside the registrar’s dismissal order. The Court of Appeal held that this approach was overly rigid and technical.
[10] Reid confirms that a contextual approach is required balancing the various factors and the interests of both parties. Applying an overly rigid formula is not appropriate or helpful in the contextual balancing process. The court must consider the reasonableness of explanations for delay to ensure that the court makes an order that is just.
[11] Another recent decision of the Ontario Court of Appeal is also helpful in assessing the merits of this appeal. In Marché d’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No 3872 (C.A.) the court concludes that a dominant theme in current civil procedure is to discourage delay and to encourage the role of active judicial involvement to ensure timely justice. Lengthy, unexplained delays become an abuse of process. In this Marché case the delay approached 9 years by the time the matter came before the Court of Appeal.
[12] The court in Marché considers two principles in paras. 28 to 33. The first is that in the Marché decision the plaintiff would not be left without a remedy, as clearly plaintiff’s counsel was very likely negligent. Second, the court concluded that the nature of delay and the conduct of counsel was “more than the kind of lapse or inadvertent mistake that the legal system can countenance”. The court concluded that the order of the Master dismissing the action sent the right message to litigants, and that to excuse delay of this magnitude and gravity undermines public confidence in the administration of justice.
[13] The test articulated in Reid, supra, while fashioned for dismissal under Rule 14.48(4), is useful here, with necessary modifications. Only two of the factors are relevant under Rule 14.48(8): explanation of the litigation delay, and prejudice to the defendant. These, in addition to the sufficiency of the plaintiff’s plan to move the action forward, are factors to consider.
[14] The onus at a status hearing is on the plaintiff. In this case counsel at the status hearing filed no material explaining the delay, nor did she provide any articulated plan for moving the case forward. The particulars of the Charter claim were still outstanding. No clear time line of when the particulars would be available was provided. At the hearing, plaintiff’s counsel stated that she was “awaiting instructions from her client”.
[15] The Master concluded that “It comes through loud and clear to this court that the plaintiff has no real interest in pursuing this action, and to the limited extent that he might have an inkling of such intent, he has done nothing to indicate that he intends to fulfill his obligations as litigant by providing particulars and moving this action along”. The Master concluded, therefore, that the plaintiff had failed to show cause why the action should not be dismissed for delay.
[16] I find no palpable and overriding error in the Master’s discretionary order. I may well have made a “guillotine” order requiring particulars to be provided within a strictly limited period or the action would be dismissed, as this was the first time the matter came before the court on a contested basis. In other circumstances it may well be a reversible error to dismiss an action at a status hearing for which there are no outstanding orders, and which has come before the court for the first time. However, in this case there was no credible explanation for the delay and no plan proposed by the plaintiff to move the case forward. This is a clear case of unreasonable delay.
[17] The conclusion of unreasonable delay is underscored by the delays in this appeal. I note that no particulars have been provided to the defendants in the eighteen-month period following the Master’s order pending appeal.
Costs
[18] Counsel for the plaintiff has agreed, regardless of the outcome of this appeal, that the plaintiff will pay the costs of this motion fixed in the amount of $2500.00 to each of the defendants. The defendants’ counsel confirms this is reasonable.
[19] I thank counsel for their submissions.
JANET WILSON J.
RELEASED:
COURT FILE NO.: DC-07-000112-00
DATE: 20080919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. ALEX DONSKOY
Plaintiff
(Appellant)
- and -
TORONTO TRANSIT COMMISSION, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and TORONTO POLICE SERVICES
Defendants
(Respondents)
REASONS FOR JUDGMENT
JANET WILSON J.
RELEASED: September 19, 2008